Tuesday, December 02, 2008

The Law in the Books Isn't Always the Law

From PrawfsBlawg, a teachable moment about the limitations of traditional legal research, whether print or online:

The Silent Constitutional Crisis?

I recently wrapped up my Con Law II (civil liberties) course here at Georgia. We ended the semester by spending a couple of days discussing the religion in schools cases including Lee v. Weisman (prohibiting clergy-led prayer at public school graduations) and Santa Fe Indep. Sch. Dist. v. Doe (holding that a system providing for student-led prayer at school football games was unconstitutional).

This was my third time teaching this material and each time the classes have ended with a swarm of students meeting me at the podium. Student after student tells me that they went to a public high school (usually in the South) and they had a minister lead a prayer at their graduation or they had a school-sponsored baccalaureate with sermons and prayers. Just as many of them had prayers before school football games. The students are confused. They want to know how their school could do this after the Supreme Court found such actions to be unconstitutional. They often assume that there is some subtle distinction between what their school did and what the Court held violated the Constitution, and they're eager for me to explain. I can think of no other topic where my answers are so direct and unqualified. "That was very likely unconstitutional," I tell them, and your school officials are simply waiting for someone to formally complain or even to sue before changing their ways.

I've found this to be an interesting teaching moment -- one that is not about the Establishment Clause but about the sometimes questionable influence of the Court's words [emphasis added]. When my class read Brown v. Board of Education earlier in the semester, we talked about the ten-year saga that followed before the Court's decision was put into action. The story of the power struggle between the states and the federal government during desegregation is riveting, and we're all familiar with the incredible show of force that was ultimately necessary to maintain the integrity of the Court's role as final interpreter of the Constitution. Today, however, there are repeated acts of defiance quietly going on in public schools all across the country when it comes to these school prayer cases. I'm wondering if there are more examples in other areas of the law where there has been such a broad and sustained rejection of the Court's rulings. It can make you question exactly what it means when the Court declares: "It is so ordered."

Posted by Sonja West on December 2, 2008 at 10:18 AM in Constitutional thoughts | Permalink


Betsy McKenzie said...

Well, it's not the limitations of legal research, so much as the limits of legal realism, isn't it? Or the limits of judicial power, maybe, we should say. What a powerful statement.

Jim & I both moved up to the northeast from the mid-west/edge of the South, and we both have connections deeper south. There are deep cultural differences between regions of our country. Some of this reflects those differences. But I suppose any time the Supreme Court enforces the rights of minority groups against the pressures of large majorities, you will probably see struggles like this. That might be why the Court has not been too eager to push hard over a lot of history. After all, the judicial branch doesn't really have any muscle to enforce it's own orders.

Marie S. Newman said...

Unlike Jim and Betsy, I grew up in the Northeast, specifically in a suburb of Boston. In grade school, the principal led us in saying the Lord's Prayer every day before school began (this was over the P.A. system). After we had prayed, we'd say the Pledge of Allegiance, and then the principal would make any announcements that were pertinent for that day. And then one day, we no longer said the Lord's Prayer. No one ever explained why we stopped saying it. We just stopped, and it didn't seem like a big deal one way or another, at least to me. Even as a fairly young child, however, I had picked up on how uncomfortable the Jewish and Muslim children were during the prayer. They literally didn't know what they were supposed to do. The year that we stopped having public prayer was the same year that we stopped having Christmas pageants with a manger scene, and started putting on holiday pageants with no religious content. Prayer (like religion in general) has the power to divide people as well as to bring them together. As Betsy says, there are deep cultural differences in our country, and one of the deepest has to do with religion.