Category Archives: Articles

New York City’s PreK Program’s Church State Problem

upk

New York City’s school system is no stranger to church state problems. Since 2005, the city has rented space for public schools in religious buildings, causing conflicts ranging from lease provisions that require students to be taken off-site for state-mandated sex education classes to students having to walk by crosses and other religious images as they make their way to school. Last year, the City awarded $19.8 million in funds to religious schools to hire security guards. This school year, New York City’s Department of Education will be dealing with another church state issue as the city enrolls the largest number of four year olds ever into its pre-kindergarten program.

In September, tens of thousands of pre-kindergarten students will be attending class for the first time as part of the De Blasio Administration’s hallmark universal full day pre-k (UPK) program, now in its third year.[1] In order to reach its enrollment goals, the city has been urging religious schools and community organizations to host the UPK program, since most public schools have reached capacity. The city is now providing religious schools roughly $10,000 per student, raising potential conflicts with church state laws. More problematically, under a guidance document issued by the De Blasio administration these religious schools are permitted to teach from religious texts, so long as they do so “objectively as part of a secular program of education,” and are allowed to preference hiring teachers that share the school’s religion. While schools must cover religious symbols on their exterior entrance and UPK class rooms, they need not do so where this is “not practicable.” De Blasio also issued a rule allowing UPK programs to hold breaks for optional prayer.

In New York State, citizens are protected from government advancement of religion by both the Establishment Clause of the U.S. Constitution, which prohibits the government from passing any law “respecting an establishment of religion,” and the so-called “Blaine Amendment” of the New York Constitution. New York’s Blaine Amendment is more restrictive than the Establishment Clause, and maintains that the State should not use public money in aid “of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught.”[2]

Unfortunately, both of these protections have been substantially watered down over the years by federal and state court decisions that have allowed the government to fund religious schools through various programs. For example, the Supreme Court decision Agostini v. Felton upheld a New York State program that sent public school teachers into parochial schools to teach remedial education. The New York State Supreme Court found in College of New Rochelle v. Nyquist that a college’s affiliation with religion did not make it ineligible for state aid under the Blaine Amendment, unless the “affiliated religious denomination controls or directs the institution towards a religious end” or the college is “controlled or directed to a degree so as to enable the religious authorities to propagate and advance—or at least attempt to do so—their religion.”

Despite this case law, New York’s UPK program poses opportunities for violations of the Establishment Clause and Blaine Amendment. A significant issue is the fact that UPK students are so young. Some courts have placed heightened scrutiny in deciding whether there was an Establishment Clause violation when vulnerable groups, like young students, are involved. In Rusk v. Crestview Local Schools for example, a district court ruled that an elementary school violated the Establishment Clause by distributing flyers advertising community activities sponsored by churches to “impressionable elementary students” who might believe the activities were school-endorsed.[3] This decision was overruled by the Appeals court which found that the parents were the ones who would receive and observe the flyers not the kids, therefore quelling concerns that the flyers would leave an impression on the students. However, the district court’s decision shows that courts sometimes take the age and vulnerability of school students into account when deciding whether an act violates the Establishment Clause.

The potential for coercive indoctrination in the UPK program is real. Publicly-funded UPK programs are supposed be available for all students regardless of religious belief, and there does not appear to be any clear information on the City’s Pre-K Finder to let parents know that a program is housed in a religious institution. Thus, for example, a Muslim or atheist family could apply for a UPK program that is located in a Christian school either because they were not aware of its religious identity, they did not realize that such schools are permitted to teach religious texts, practice coreligionist hiring, and hold prayer breaks, or simply because of a lack of alternative options close to their home. This could leave the four-year-old child in a position where they have to see religious symbols that are in direct conflict with their religious teachings every day, wear a uniform bearing the religious name of their school, read religious materials, watch their fellow students break for prayer, and follow instruction from teachers and an administration that practices a faith different from their own. It is not hard to see how such a scenario could lead to impermissible indoctrination of an impressionable young mind.

Church state issues in education are complicated, especially in a city like New York which is one of the most religiously diverse cities in the nation.[4]   However, law and policy makers have a responsibility to make sure that students are in culturally and religiously sensitive learning environments that respect and pay homage to our city’s religious diversity. Children’s minds are too impressionable to be subjected to religious materials and practices that could potentially indoctrinate them with a particular religion.

[1] Ben Chapman, Mayor De Blasio’s Universal Pre-K Program Still Failing to Reach Some Families, New York Daily News (April 19,2016) http://www.nydailynews.com/news/politics/poor-new-yorkers-left-free-universal-pre-k-article-1.2607773

[2] College of New Rochelle v. Nyquist, 326 N.Y.S.2d 765, 765 (1971)

[3] Rusk v. Crestview Local Schools, 220 F.Supp.2d 854 (6th Cir. 2002)

[4] Jed Kelko, America’s Most Religiously Diverse Cities, Citylab (Dec. 20, 2012) http://www.citylab.com/politics/2012/12/americas-most-religiously-diverse-cities/4227/

In the Wake of the Hobby Lobby Ruling, What’s Next?

Originally published in Feministing on July 1st, 2014, cross-posted on the Gender & Sexuality Law Blog  on July 1st, 2014.

10461633_10152520561634321_5422608368923610435_n-e1404236390822

Yesterday the Supreme Court ruled that some for-profit businesses do not have to comply with the Affordable Care Act’s requirement ensuring contraceptive coverage at no cost to the insured. The plaintiffs in these cases – and in almost 50 other cases filed making similar claims – claimed that providing coverage for various forms of birth control violates their rights under the Religious Freedom Restoration Act (“RFRA”), a federal statute that provides additional protections for religious believers beyond the minimum required by the First Amendment.

The Court’s decision held that (1) closely-held corporations (meaning that most of the shares are privately held by a small group of owners, and stock is not usually publicly traded) have religious free exercise rights under RFRA, (2) having to pay for contraceptive coverage would be a “substantial burden” on the plaintiffs (even though they could just choose to pay a tax to subsidize public insurance exchanges on which their employees could purchase comprehensive insurance instead), and (3) even if the government interest in providing comprehensive contraceptive coverage was “compelling,” the law was not “narrowly tailored” – meaning that the government could have achieved the goal in a different way that would not have violated the plaintiffs’ religious rights.

There’s plenty to argue with in that analysis – and Justice Ginsburg wrote a masterful dissentdoing just that – but what’s done is done. So what comes next? 

There are three big unknowns.

First, we don’t know how broadly this opinion reaches, or how slippery the slope downhill could be. The Court repeated several times in the opinion that it was only deciding the particular question here (contraceptive coverage, closely-held corporations, etc.) but there aren’t any principled reasons in the opinion to cabin it to that question. Why wouldn’t the same principles apply to a company that didn’t want to cover, say, blood transfusions (to which Jehovah’s Witnesses object) or psychiatric medication (to which Scientologists object) or even vaccines? And it’s not just insurance coverage at issue – it’s sex discrimination, race discrimination, sexual orientation, and gender identity discrimination, among other issues. What about a company whose owners believe men should be paid more than women because the bible teaches that men are the heads of the household? (True story, those cases have been brought before). Or a company whose owners believe that LGBT individuals shouldn’t marry or reproduce? (We’re all too familiar with that refrain). Or even a company who believes that African-Americans and Jews should not work with Caucasian Christians? (As many companies did in the Jim Crow era). Some of these scenarios may seem far-fetched, but there are no safeguards in the court’s opinion to prevent this expansive reading of RFRA from being used as a backdoor wedge to start undermining a lot of the civil rights protections we now take for granted.

Second, we can only guess how this ruling will affect the legal and social status of contraception – and the guessing doesn’t look good. We’re all too familiar with “abortion exceptionalism” – the way that abortion is considered “different” from other forms of health care, from other categories of rights, and from other indicators of equality. These cases are part of a concerted legal and social effort by anti-choice advocates to blur the boundaries between contraception and abortion and to taint contraception with the social controversy and stigma of abortion. In these opinions, contraception is isolated. It’s singled out from all other forms of medical care, and it’s singled out from other equality rights – and that makes it vulnerable to legal and social attacks on access from all sides. And that’s nothing to look forward to.

And finally, we don’t know what will happen next in the courts – or what the government will do in response to the decision. There are almost 50 cases in the lower federal courts filed by similar corporations that, after this decision, are probably now all going to be decided in favor of the religious objectors. Then there are over 80 cases filed by religiously-affiliated nonprofits that don’t even want to certify that they object because they say just signing the form violates their free exercise rights. And outside the courts, the Administration and/or Congress will have to decide whether and how to respond. The Court’s opinion was very clear that the accommodation that the Administration has offered to non-profit religiously-affiliated organizations (which allows them to certify that they object to providing coverage for birth control and then requires their insurance company to pay for it instead) would have been a “better” alternative because it would have maintained free access to contraceptives while not burdening the religious exercise of the business owners who sued. So the Department of Health and Human Services might be able to issue regulations making that change, or the Administration might be able to come up with some other way of ensuring coverage through executive action, or Congress might be able to amend the Affordable Care Act or pass stand-alone legislation providing national contraceptive coverage. There are a lot of options, but we don’t know yet which ones will transpire.

And if there’s no fix, then all those female employees of the objecting businesses will have to pay for their own birth control or will have to purchase private insurance on an insurance exchange that actually provides comprehensive coverage. As far as the majority opinion of the Supreme Court is concerned, that’s just the price of doing business.

Kara Loewentheil is a Research Fellow at Columbia Law School and the Director of the Public Rights / Private Conscience Project in the Columbia Center for Gender and Sexuality Law. 

Religious Accommodation’s Roots in Legal Pluralism

From Center for Gender and Sexuality Law Director Katherine Franke, originally published in States of Devotion on April 21st, 2014. Cross-posted on the Gender & Sexuality Law Blog on June 2nd, 2014.

Image Credit: Wyoming Jackrabbit
Image Credit: Wyoming Jackrabbit

The accommodation of a normative claim made in the name of religion often entails the surrender of governance authority by a competing norm aimed at advancing equality or sexual liberty. In this sense, the demand for an accommodation of religion is at once jurisgenerative and jurispathic.[1]

In this blog post I want to do a bit of critical thinking about the political space cleared out by the assertion of religious free exercise rights. That is to say, what does the demand for an accommodation of religion actuallydo? Can it be understood as an assertion of a kind of governance authority? What kind of political work might robust religious exemptions accomplish?

Consider this: one way of understanding the accommodation of religion is to see them as making a claim to a kind of legal pluralism. From this vantage point, what they amount to is a demand that the state and other citizens acknowledge that the party asserting the exemption regards itself as governed by two competing legal systems—one secular the other religious, and when the demands of those two systems come into conflict the request for the exemption amounts to a claim that religious law should be treated as supreme.

Unlike the pluralistic legal cultures present in South Africa, India, or Israel, we have a strong tradition of a unitary source of law here in the US. In important ways, the claim to religious exemptions poses a serious challenge to the singular authority of law in our legal culture.

Some have argued that the free exercise clause asks nor more than that we tolerate religion and the norms that are generated in its name. But as Wendy Brown has taught us in her work, tolerance is not able to assert a claim on the political.[2] Indeed it is, at bottom, a discourse that depoliticizes the claims made in its name.

In this sense claims to religious exemptions do much more than assert a demand for tolerance of value pluralism: they present a challenge to the unitary sovereign authority and general applicability of secular law. They mobilize a direct challenge to the political, by and through an unambiguous claim to governance.

Not coincidentally, the claim to a kind of political power from the camp of religion that we witness today is in direct reaction to a similar claim made on behalf of the lesbian and gay community’s advocates. A demand for tolerance could not have mobilized a substantive right to marriage for same-sex couples. And a claim to tolerance cannot justify the arguments made by Hobby Lobby or Elane Photography to be excused from the jurisdiction of secular legal norms and in their place substitute the commands of a competing form of authority. To launch such claims requires a kind of “will to power” that well exceeds a demand for tolerance, and we will be well served by committing more thinking to the very nature of the kind of power mobilized by these kinds of claims.

This is where I imagine real work and hard thinking is yet to be done: the gay community has pursued a democratic, political process to change the law on the basis of substantive claims to justice made internal to the governance authority of secular legal principles, and the law has so changed. A mere plea for tolerance could not have launched that project. By contrast, the claim to an exemption grounded in religion represents a claim to authority made from sources exogenous to the secular legal system itself, and in profound ways poses a determined threat to the idea of state power and to singular legal authority. The implications of this kind of claim are, in my view, quite radical and deserve much deeper scholarly attention to unpack and elaborate the kind of political promiscuity it may open up.


[1] I borrow these terms from Robert Cover in Nomos and Narrative, 97 Harv.L.Rev. 4 (1983).

[2] Wendy Brown, Regulating Aversion: Tolerance in the Age of Identity and Empire (2008).