Last Monday the school district of Muldrow, Oklahoma voted to remove plaques with the ten commandments inscribed on them from the walls of its schools. This happened in response to a letter the Muldrow Superintendent received from the Freedom from Religion Foundation which threatened to sue the school district on behalf of a student who had contacted them. Legally speaking this is not that interesting a case, but it seems to be part of a larger trend where the fear of lawsuits is determining the way that small school districts behave. And that trend is itself an interesting development in the way religion-education issues are negotiated in the United States.
Despite the fact that locally the decision in Muldrow was met with protest, this was a pretty clear cut case of the school district running afoul of the laws and court precedents regarding an establishment of religion. But this is the kind of breach that seems to happen frequently unless there’s an effort to enforce constitutional rulings. It’s similar when the religion-in-schools issue involves the teaching of evolution. Recent studies that have shown that despite various court rulings on the teaching of creationism, creation science, or intelligent design, many biology teachers do teach antievolutionary positions either either exclusively or in “balance” with evolution. Legally speaking, it was never constitutional for Muldrow to have these plaques up, but it’s only when they were noticed by people willing to take them to court that the issue came up. What’s interesting is that some of people the people protesting their removal pointed to the fact that they’d been up for so long as evidence of their acceptability.
But the Muldrow school board did not vote to remove the ten commandment plaques because they were legally required to do so, or even because they thought that they were wrong to have them. Rather, they did it because they could not risk losing a lawsuit. It wasn’t the lawsuit itself, but the potential expense, and the risk of losing liability insurance, that determined the outcome.
This was perhaps the real legacy of the 2005 Pennsylvania “Intelligent Design” trial Kitzmiller et al v Dover Area School District. In that case, the Dover school board had instituted a policy requiring the reading of a statement about intelligent design. Parents of some students sued and the court ruled that the board had acted in violation of the establishment clause and that intelligent design could not be taught in a science class.
But perhaps more importantly, as the losing party in a civil lawsuit, the school district was responsible for the plaintiffs’ legal expenses. Even though the school district’s own legal defense was provided pro boon by the Thomas More Law Center, the Dover School Board (whose membership had been replaced in a November 2005 election with people who opposed the teaching of ID) was responsible for over one million dollars in the plaintiffs’ legal expenses (a bill that could have been much higher.)
From the point of view of small town school districts, this was a more important consequence of the Dover trial than the fact that they couldn’t teach intelligent design. Go to court and risk potential bankruptcy. More importantly: adopt legally questionable policies and risk losing liability insurance.
That’s just what happened just a few months after Dover. In the El Tejon school district in California, a schoolteacher proposed to teach a philosophy elective about intelligent design, and a parent of a student at the school sued that teaching the course would amount to advocating religion. Rather than the case (Hurst v Newman) going to trial, the case was settled out of court with the school district agreeing not to run the course.
In Hurst v Newman, there were a lot of specific circumstances (such as the proposed syllabus for the “philosophy of design” class) that made that specific case an almost certain loss for the school district. But the general legal question as to whether discussion of intelligent design could be taught in a philosophy or social studies class (and if so, how) was not answered by Kitzmiller, and is still widely contested in law journals and in public debate.
But part of the reason that Hurst v Newman did not go to trial was the fact that the El Tejon school district could have faced “projected legal costs of $100,000” (according to a 2006 article in Science) El Tejon’s professional liability insurance is part of their insurance through a policy held with a group of several California school districts, called SISC. According to the SISC description of coverage: While SISC affords coverage considered broad and inclusive of exposures typically faced by our member districts, SISC cannot afford coverage for damages resulting from willful or intentional acts or intentional acts or omissions for which insurance coverage would be precluded under [California] Insurance Code Section 533.
Note, I’m not sure if El Tejon’s professional liability insurance was the same in 2006 as it is now, but even if it is somewhat different, the issue is that it’s not just the possibility of a legal bill of $100K (which, given the costs in Dover, seems low anyway) that was a motivation to settle the lawsuit. It’s the possibility that the school district could have its liability insurance policy dropped, or that its premiums would increase, or even the fact that the other school districts and country officials responsible for the group insurance don’t want to see their insurance costs increased because a single school district made a decision that was more likely to risk lawsuits.
El Tejon might have had a case that a “philosophy of design” course was constitutional (although the specific version of the course proposed was highly problematic.) But the arguments could’t even be given a legal hearing because of the issues of expense, risk, and insurance.
For the past several years, I’ve taught a history of religion and science summer class. In it I have had students stage a mock trial of Hurst v Newman, based on some of the affidavits and materials that were filed in the case. (Some of these documents are on the NCSE’s website). In class, I judge the outcome of the mock trial based on which of the legal arguments the students make (given our previous study of the Dover trial, Scopes, McLean v Arkansas and other foundational cases) and it has been quite a successful classroom project. Most interestingly, both sides of the case have won the trial at least twice, not because either side was ultimately right, but because one side made better arguments or better responded to the arguments made by their opponents.
It seems like some of the same financial/legal/insurability pressures motivated the decision in Muldrow. And while I agree that the ten commandments posting in public schools was clearly unconstitutional, it worries me that these kinds of decisions are not being debated by school districts or citizens in terms of what’s right or wrong, nor are they being settled by courts guided by law and precedent. Effectively these decisions are being made by the structure of liability insurance, and fear of bankruptcy.
People who might applaud the fact that intelligent design lost in California for this reason might reflect that this tactic can cut both ways. School districts have a pretty strong incentive not to risk back up a teacher whose decisions might be perceived as risky or controversial, even if the law is on the teacher’s side. Even going to court could be seen as risking a school’s insurance policy.
One of the most important differences between education in the US and in many other countries is the extent of local autonomy a single small district can have. But that’s being changed by the push towards common standards on one hand, and a structure of legal expense that prevents major action by a district who has to worry about money and insurance.
Part of what that means is that if there’s going to be another major trial over the establishment clause in schools (like Kitzmiller, El Tejon, or what could have been in Muldrow) it’s more likely to be launched by a state body, not a small town school district. If a state’s attorney general is politically motivated to challenge a law, they may not be impeded by concern over legal expenses. It’s the financial precedent from Dover, not the legal one, that’s had the bigger consequences.