Friday, June 10, 2011

NYC schools must not be polluted by Christian services

A federal appeals court has ruled that New York City can ban churches from using public school facilities for Sunday worship services and does not violate free speech.

Thursday's 2-1 decision by the 2nd U.S. Circuit Court of Appeals in Manhattan overturned a lower court ruling that allowed the Bronx Household of Faith to hold services in a public school.

The justices said that it could unconstitutionally convert schools into state-sponsored Christian churches on weekends.

An attorney representing the church said they would appeal the ruling.

The ruling means that dozens of churches that rent public school buildings in New York City could face eviction by the end of June.

Department of Education said it’s reviewing how to implement the decision. The city said it has no intention of immediately evicting the groups. However, they may be asked to cease using school buildings by the end of June.

“We are very pleased with the Court’s decision today in this longstanding case, which, reversing the lower court, upholds the Department of Education’s policy not to allow public schools to be used for congregational worship services,” said city attorney Jane Gordon in a written statement. “The Department is quite properly concerned about having any school in this diverse city identified with one particular religious belief or practice.”

Jordan Lorence, senior counsel for the Alliance Defense Fund, blasted the ruling and called it “very, very disappointing.”
“If we do not get an emergency stay, the churches could be thrown out by the school district,” Lorence told Fox News Radio.

“They might be meeting on the street.” Lorence said they hope the court will grant a longer stay so that churches can continue to rent public buildings. “The religious groups are not seeking special treatment, but equal treatment,” Lorence told Fox News Radio.

“It would be a tragedy if these churches that serve the communities would be tossed out and be made homeless by this anti-religious policy.” But the court determined that allowing churches to use schools resulted in an “unintended bias in favor of Christian religions” – since most Christian churches worship on Sunday.

“Jews and Muslims generally cannot use school facilities for their services because the facilities are often unavailable on the days that their religions principally prescribe for services,” Judge Pierre Leval declared. “At least one request(ed) to hold Jewish services (in a school building used for Christian services on Sundays) was denied because the building was unavailable on Saturdays. This contributes to a perception of public schools as Christian churches, but not synagogues or mosques.”

Judge Leval also took issue with the evangelical church’s membership. “Bronx Household acknowledges that it excludes persons not baptized, as well as persons who have been excommunicated or who advocate the Islamic religion, from full participation in its services.” Leval wrote.

But it all boiled down to a key point, the judges decided. “In the end, we think the board could have reasonably concluded that what the public would see, were the Board not to exclude religious worship services, is public schools, which serve on Sundays as state-sponsored Christian churches,” Leval wrote.

One of those churches that could be homeless is The Journey Church, an evangelical congregation of about 1,000 people that meets in four different public school buildings. “For us, it’s always been about having equal access that any other secular organization might have,” said Kerrick Thomas, one of the church’s pastors.

“I think the fear a lot of people have is that a church meets in the school and they’ll be proselytizing – and it’ll appear that the school is promoting the church. But that’s not the case.” The Journey Church was founded nine years ago and for many of those years, the congregation has worshipped in public school buildings. Thomas said churches are not given any favors. They pay thousands of dollars in rent – and must abide by the same rules as any other organization.

“There are no special benefits given to churches,” he told Fox News Radio. Nevertheless, Thomas said they’ve developed positive relationships with every school they’ve rented – and they’ve gone above and beyond to help students.

“Our commitment has always been to leave the schools in better shape than when we got there through any way we could help and support,” Thomas said, adding that in many instances they’ve assisted schools anonymously. In one case, the church provided school supplies and computers for under-privileged children.

Another wanted to perform a play but the school lacked theatrical equipment. So the church provided a sound and lighting system. “We just did that because we wanted to help out,” Kerrick said. “We believe in what the schools are doing.”

But the court determined that allowing churches to use public schools would send the wrong signal to the public. “When worship services are performed in a place, the nature of the site changes,” Judge Leval wrote. “The place has, at least for a time, become the church.”

Whatever happens, Pastor Thomas said they will continue to minister to the city. “We’ll find a place and we’ll work hard,” he said. “I’m confident we’ll find a home – but it’s going to be difficult.”


Why Cross-Examination Rights Matter in Campus Sexual Harassment Cases under Title IX

by Hans Bader

As part of its broader attack on safeguards against false accusations, the federal Education Department is urging colleges to strip students and faculty of the right to cross-examine their accusers in disciplinary proceedings over alleged sexual harassment. In an April 4 letter from Assistant Secretary for Civil Rights Russlynn Ali, the Education Department said that it “strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing.”

This is perverse, since the subjective nature of the legal definition of harassment means that there is no category of cases in which cross-examination is more useful or essential to ensure due process. To legally qualify as sexual harassment under Title IX, or racial harassment under Title VI, speech must be severe and pervasive enough to create a hostile learning environment for the listener, and interfere with the listener’s education, both in subjective and objective terms, according to court rulings like the Supreme Court’s 1999 Davis decision. Transitory offense is not enough. If the accuser admits on questioning that she did not really view the offensive speech as being a “big deal,” or was not shocked or surprised by it, that probably rules out the existence of a subjectively hostile environment. Indeed, a federal appeals court dismissed a racial harassment claim for just that reason in Newman v. Federal Express Corp., 266 F.3d 401 (6th Cir. 2001).

But a wrongly-accused person can’t establish that lack of a subjectively-hostile atmosphere without questioning the accuser, and may not be able to show that the accuser wasn’t greatly impacted by the speech without cross-examining the accuser about its alleged effect on her and her studies, such as whether she continued to enjoy her college experience after overhearing the allegedly “harassing” remarks.

There is a fine line between protected speech about unpleasant sexual topics and unprotected sexual harassment, and it is crucial that accused people be able to prove that their speech did not amount to sexual harassment. Even sexually vulgar speech on political issues is protected on college campuses, as the Supreme Court’s Papish decision illustrates. And perfectly civil, non-vulgar students have been subjected to disciplinary proceedings for sexual and racial harassment, in violation of the First Amendment, merely for expressing commonplace opinions about sexual and racial issues, like criticizing feminism or affirmative action, or discussing the racial implications of the death penalty. (See the examples cited in the Amicus brief of Students for Individual Liberty in Davis v. Monroe County Board of Education, available at 1998 WL 847365.)

To fully defend themselves against sexual harassment charges over speech on sexual topics that doesn’t really amount to sexual harassment, people who are wrongly accused of sexual harassment will sometimes need to cross-examine their accuser to show that their speech did not really have any sexually harassing effect, and thus did not legally amount to sexual harassment, despite their accuser’s attempt to make a mountain out of a molehill.

The Education Department’s attack on cross-examination will lead to free speech violations, by resulting in students being convicted of harassment even when their speech did not create a subjectively-hostile environment, much less interfere with the accuser’s educational opportunities. If the speech has not created such an environment, it has not caused tangible harm, and cannot be banned merely because a hypothetical listener might have objected to it. One case illustrates this principle. In Meltebeke v. Bureau of Labor and Industries, 903 P.2d 351 (Or. 1995), the Oregon Supreme Court struck down a religious small-business owner’s fine for religious harassment because the state agency’s harassment rule violated religious-freedom guarantees. Justice Unis, in his concurrence, noted that the rule also violated free speech, and was unconstitutionally over-broad, because it only required that the speech create a hostile environment for a hypothetical reasonable person — not for the actual complainant, who did not need to experience a subjectively-hostile environment.

There is no uniform rule that people are constitutionally entitled to cross-examine their accusers in campus disciplinary proceedings in general (unlike in criminal prosecutions), but there are certain types of disciplinary proceedings where cross-examination can end up being constitutionally required. In cases like Donohue v. Baker (1997), judges have ruled that cross-examination was constitutionally required on due-process grounds when it was essential to test the credibility of the accuser.

Sexual harassment cases commonly turn not only on such credibility disputes, but also on the complainant’s alleged subjective emotional state, which makes cross-examination far more essential than in the ordinary campus discipline case. (By contrast, other kinds of disciplinary cases often turn solely on objective events that can be verified without any cross-examination of the accusing witness.) So the Education Department’s attack on cross-examination in sexual harassment cases may well result in many violations of the Constitution’s Due Process Clause, in addition to exceeding its legal authority under Title IX.

Even if it did not violate the Constitution, the Department of Education’s assault on cross-examination would still be unjustified, since cross-examination has justly been called “the most powerful engine for the discovery of truth ever devised by man.” In sexual harassment cases brought in court, the defendant invariably has the opportunity to cross-examine the accuser, because courts recognize that cross-examination is useful in exposing false allegations.

The erosion of due process safeguards will also have a negative effect on sexual misconduct cases in general. Discipline based on false accusations is already much too common. As former Massachusetts ACLU leader Harvey Silverglate notes, many universities, such as Stanford, the University of Virginia, Brandeis and Washington University, have altered their disciplinary procedures in sexual harassment and assault cases under pressure from the Education Department’s Office for Civil Rights. But “even before” that, “a number of students around the country were found guilty in campus tribunals on sexual assault charges, only to be later vindicated. At George Washington University, a student found guilty of sexual assault — despite the eyewitness testimony of his three roommates that the encounter was consensual — is now suing the school for $6 million in damages. The University of North Dakota found a student guilty of sexual assault, but refused to reopen the case even after state authorities charged his accuser with filing a false police report.” I earlier discussed why the Education Department was wrong to force schools to alter the burden of proof in sexual harassment and assault cases.

Cato Institute attorney Ilya Shapiro and FIRE lawyer Greg Lukianoff argue that the erosion of due process protections resulting from the Education Department’s pressure on schools will interact with broad campus sexual harassment policies to undermine basic principles of free speech.


British Exams watchdog demands review of all A-level and GCSE questions after more blunders revealed

All exam questions are to be inspected for mistakes after errors were found in several papers, putting thousands of pupils’ grades in jeopardy. The watchdog Ofqual has ordered exam boards to review GCSE, AS-level and A-level papers being sat this month after a deluge of complaints about ‘disappointing and unacceptable’ blunders.

Six separate papers are under investigation already. Each contained an impossible question that could not be answered correctly.

Biology, maths, geography, computing and business studies exams were all affected. One of the incorrect questions was worth up to 11 per cent of the paper.

Although examiners have pledged to take into account the mistakes found on papers, students have complained that they wasted vital time on these questions – and so couldn’t complete other parts of the paper.

The National Union of Students has warned that the errors will affect some students’ chances of gaining university places.

Ofqual has taken the unprecedented step of writing to all exam boards in England, Wales and Northern Ireland about the mistakes. Glenys Stacey, the watchdog’s chief executive, said: ‘The recent run of exam errors is disappointing and unacceptable. There have been a number of question papers that have included errors. ‘I am calling on awarding organisations to take steps now to protect students from further disruption and anxiety.’

The majority of blunders were in exams set by AQA, Britain’s biggest exam board.


* A geography AS-level exam by AQA asked students to identify the fastest part of a river. But the diagram was wrongly labelled, so they could not answer.

* A question in an AS-level maths exam sat by 6,800 students, worth 11 per cent of the total mark, asked students to find the shortest route along a network of tracks in a forest. The route was supposed to be equal to an equation set out in the test paper – but the OCR exam board didn’t calculate the length properly.

* In an AS-level biology exam from the Edexcel exam board, 17,000 candidates were supposed to find the correct DNA sequence from a series of combinations shown – but the right answer was missing.

* For an AS-level business studies paper set by AQA, 41,400 students were asked about a fictitious chocolate company’s profits. But the firm’s adjoining profile information failed to show what its profits actually were.

Shane Chowen, of the NUS, said: ‘More needs to be done to reassure those who sat the erroneous papers that they will not have their future prospects placed in jeopardy. ‘Those students confronted with unanswerable questions may have had their performance in the rest of the exam affected. ‘The only fair solution is to give those that want it, the option to re-sit the exam.’

Each exam board marks the tests that it sets. Ofqual monitors the boards and ensures their accuracy. It also moderates a sample of papers. But errors found in exam questions will raise fears that more mistakes will be made when papers are marked.

Dr Jim Sinclair, of the Joint Council for Qualifications, which represents exam boards, said: ‘Students should be assured that no one will be disadvantaged as a result of these mistakes.’


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