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For a long time now, we secular humanists and other skeptics have been denigrated as the apostles of decadence and social decay.

A half-century ago T.H. Marshall, British Labour Party social theorist,
offered a progressive, developmental theory for understanding the
history of what we have come to call citizenship. Taking the experience
of Englishmen to define the superior path, he postulated a hierarchy of
citizenships: civil rights, political rights and social rights. The last of these became the
category in which twentieth-century Europeans have understood claims on
the state to health, welfare, education and protection from avoidable
risk. They conceived of these citizenships as stages in an upward climb
toward an ever better democracy.

Marshall's schema looked only at European men. Feminists have pointed
out that women did not achieve citizenship in this order. In fact, women
often won some social rights--for example, protective legislation and
"welfare"--before achieving political ones such as the right to vote.
And women's individual civil rights were often overwhelmed and even
suppressed by legally imposed family obligations and moral sanctions.
(For example, a century ago courts generally interpreted the law of
marriage to mean that women were legally obligated to provide housework,
childcare and sexual services to husbands.) Equally problematic were
Marshall's obliviousness to British imperialism and what it meant for
Third World populations, including the fact that he conceived of the
British as civilizers rather than exploiters, and his apparent ignorance
of the conditions of second-class citizenship for racial/ethnic
subordinates within nation-states. In short, his historical hierarchy
was highly ideological.

But no one has yet done what Alice Kessler-Harris has in her newest
book, In Pursuit of Equity, reaching beyond Marshall and his
critics to suggest a new concept, economic citizenship. In this history
of how women have been treated in employment, tax and welfare policy,
Kessler-Harris--arguably the leading historian of women's labor in the
United States--synthesizes several decades of feminist analysis to
produce a holistic conception of what full citizenship for women might
entail. In lucid prose with vivid (and sometimes comic) illustrations of
the snarled thinking that results from conceiving of women as
dependents--rather than equal in heading families--she offers a vision
of how we can move toward greater democracy. In the process, she also
shows us what we are up against. Her book illustrates brilliantly how
assumptions about appropriate gender roles are built into all aspects of

She aims to resolve what is perhaps the central contradiction for
policy-makers and policy scholars who care about sex equality: the
contradiction between, on the one hand, valuing the unpaid caring work
still overwhelmingly performed by women and, on the other hand, enabling
women to achieve equality in wage labor and political power. Today, for
example, although all feminists oppose the punitive new requirements of
the policy that replaced Aid to Families with Dependent Children,
repealed in 1996, they are divided about what would constitute the right
kind of welfare system. Some find it appropriate that all adults,
including parents of young children, should be employed, assuming they
can get a living wage and good childcare. Others, often called
maternalists, believe a parent should have the right to choose full-time
parenting for young or particularly needy children. Behind this difference lie two different visions of
sex equality--one that emphasizes equal treatment of the sexes and individual rights
and responsibilities, another that seeks to make unpaid caring labor,
notably for the very young, the old and the ill, as honorable and valued
as waged labor.

Kessler-Harris would resolve this contradiction through a labor-centered
view of citizenship, a notion of economic citizenship based on equity,
or fairness, in the valuation of socially worthy labor. Previously, the
policy proposal closest to this principle of equity was "comparable
worth." Second-wave feminists saw that the Equal Pay Act of 1963 and
Title VII of the Civil Rights Act of 1964 had failed to equalize male
and female wages. Because the labor force is so segregated, and female
jobs are so consistently undervalued, equal pay alone cannot produce
justice to women (or men of color). The comparable-worth strategy called
for equal wages for work of comparable expertise and value, even when
the jobs differed. For example, consider the wage gap between truck
drivers and childcare workers. Truck drivers earned much more even than
registered nurses, whose training and responsibility was so much
greater. The women's movement's challenge to inequality in jobs took off
in 1979, when Eleanor Holmes Norton, then head of the Equal Employment
Opportunity Commission, called for evaluations of job skills to remedy
women's low wages. But her successor, Clarence Thomas, refused to
consider comparable-worth claims. Although some substantial victories
were achieved in state and union battles--for example, the American
Federation of State, County and Municipal Employees (AFSCME) won wage
increases averaging 32 percent and back pay retroactive to 1979 for
Washington State employees, 35,000 of whom shared a $482 million
settlement--the comparable-worth campaigns faded in the 1980s.

But even had the comparable-worth strategy been adopted, it could not
have recognized the hours spent in caring for children, parents,
disabled relatives and friends, not to mention the work of volunteering
in underfunded schools, cooking for homeless shelters, running kids'
basketball teams. Kessler-Harris is arguing for a citizenship that
respects unpaid as well as paid labor.

She has worked out the arguments in this book systematically over many
years. Several years ago, an article of hers with the deceptively simple
title "Where Are All the Organized Women Workers?" enlarged the
understanding of gendered "interests" from an exclusive focus on women
to take in men as well. She demonstrated that so long as men dominate,
aspirations understood and characterized as class interests often
express gender interests equally strongly. She uncovered how unions
often operated as men's clubs, built around forms of male bonding that
excluded women, primarily unconsciously but often consciously, too. In
this new book she extends her analysis of men's gendered interests to
reveal how labor unionists' inability to stop defending the privileges
of masculinity have held back labor's achievements. One vivid example
was unions' opposition to state-funded welfare programs and
health-and-safety regulation, stemming from anxiety that they would
deprive workers of their manly independence. Of course, unionist
resistance to state control over workplace and work-centered programs
also derived from a defense of workers' control. But this vision of
workplace democracy was inextricably masculinist, and workingmen's
understanding of their dignity rested on distinguishing themselves from

In A Woman's Wage, Kessler-Harris showed that both Marxist and
neoclassical economics were mistaken in their joint assumption that the
wage was somehow a consistent, transparent token of the capital/labor
relation. By contrast, wage rates, wage systems, indeed the whole labor
market were constructed by gender interests and ideology as well as by
supply and demand or surplus value or the actual cost of subsistence. A
wonderful example from her new book: The Hawthorne experiments of the
late 1920s have been interpreted to show that women workers were more
tractable than men. In one study, a group of women workers adapted more
cooperatively and quickly to a speedup than did a group of male workers.
In seeking to explain this behavior, investigators examined the women's
home lives and even their menstrual cycles, while paying no particular
attention to the fact that the collective rather than individual wage
structure imposed on them was such that higher productivity could only
increase their total wages, while the men's piece-rate wage structure
offered no such guarantee--in fact, the men had reason to expect that
the piece rate would be lowered if they speeded up. We see here not a
"natural" gendered difference arising informally from culture and
socialization, but female and male workers responding rationally to a
gendered system imposed by employers.

In Pursuit of Equity argues that no one can enjoy civil and
political rights without social and economic citizenship. Marshall's
alleged gradual expansion of civil and political rights not only
excluded many others but actually strengthened women's exclusion from
citizenship. One fundamental premise of democratic capitalism--free
labor--was never fully extended to all women, whose labor was often
coercively regulated, not only by husbands but by the state.
Kessler-Harris shows how free labor developed in tandem with the "family
wage" ideal, that is, that husbands/fathers should earn for the entire
family and that women's destiny was domestic unpaid labor. The correlate
was that men "naturally" sought economic and social independence while
women "naturally" sought dependence. Ironically, most feminists of the
nineteenth century went along with this dichotomy and tried to root
women's citizenship in their essential family services rather than in
the free-labor definition of independence. That is, they argued for
rights on the basis of women's spiritual and material work in unpaid
caretaking labor.

The book demonstrates particularly effectively how the dominant modern
gender system--the family-wage norm--made it difficult for women to
become full citizens. In one closely documented section, Kessler-Harris
exposes the condescending and defensive assumptions of those who drafted
the Old Age Insurance program (which later became Social Security). The
drafters agreed, for example, that the widow of a covered man with young
children should be able to receive three-quarters of his pension until
she remarried or the children reached 18. A widow without children
lacked any rights to her husband's pension. But if this pension was her
husband's by right, as the designers insisted, then why were his heirs
not entitled to all of it as with all other parts of his property? If
the widow remarried, she would not have to give up the bank account or
house or car he had left her--why should she give up a Social Security
pension? One Social Security drafter argued that retaining such an
annuity after remarriage would make widows "a prize for the fellow that
has looked for it," assuming that women are entirely passive in marriage
decisions! The drafters were all convinced that "once a woman was no
longer dependent on the earnings of a particular male (dead or
alive)...his support for her should cease." In other words, his status
as breadwinner should continue even after his death. The drafters
rejected the idea of granting all widows of covered men an equal stipend
or one based on the number of children. It was important for her
benefits to be calibrated to his earnings so as to feed "the illusion
that families deprived of a father or husband would nevertheless
conceive a continuing provider." "Why should you pay the widow
less than the individual himself gets if unmarried?" Because "she can
look after herself better than he can." Imagining women as less capable
of handling money than men, the designers removed the option of a
lump-sum benefit to widows, requiring them, unlike men, to receive
monthly stipends. To avoid "deathbed marriages," they allowed a widow to
collect only if she had been married and living with her husband for at
least a year before he died.

The concern with male status was reflected particularly comically in
discussions about the age at which a wife could start to receive her
share of her husband's benefits. Some argued for an earlier "retirement"
age for women because if both men and women were eligible at 65, this
would mean that men with younger wives--a common phenomenon--might not
get their full pension for a number of years after they retired. But
others argued that since men who married much younger women were more
likely to be those who had married more than once, granting women an
earlier retirement date might reward these men over single-marriage

Several decades ago economist Heidi Hartmann pointed out that patriarchy
was as much a system of power and hierarchy among men as a male-female
relation, and Kessler-Harris confirms that insight. For example, the
entire debate about whether married couples should be able to report
separate incomes for IRS purposes concerned the inequalities this would
create between men with employed wives and men with nonemployed wives.
Fairness to women was not a prominent concern. The fact that employed
women's old-age insurance benefits were restricted according to their
marital status while men's weren't "did not seem like sex discrimination
[to the Social Security designers] but rather like equity to men."

At the core of In Pursuit of Equity is the understanding that
what is "fair" is historically changing. The problem we face today is
not that men deliberately built policies to subordinate women but that
when our basic economic policies were established, men and women alike
tended to see male breadwinning and female domesticity as "fair." That
standard is far, far from reality today. One result is a double standard
in which supposedly ideal family life, requiring a full-time mother, is
a privilege of wives of high-earning husbands.

In the United States, the resultant damage is worse than in Europe,
because here many fundamental aspects of citizenship flow from the labor
market. "Independence" today is generally defined as earning one's
living through wages, despite the fact that the resulting dependence on
employers leaves workers as vulnerable, if not more vulnerable, than
dependence on government stipends. Social rights vital for survival,
such as medical insurance, retirement pensions and workers'
compensation, typically derive from employment in this country, in
contrast to most developed countries, which provide such help as a
matter of right to all citizens or residents. This is one way in which
American wage workers, as Kessler-Harris says, were "in a different
relationship to the constitution than those who did care-giving work."
As a result the development of democratic capitalism, even the growth of
working-class power in some ways failed to strengthen women's economic
citizenship, even weakened it. Indeed, she shows how victories against
sex discrimination in the labor force in the 1960s inadvertently
confirmed the assumption that all women could and should work for wages,
thereby contributing to the repeal of welfare without creating the
conditions that would make it possible for poor women to support
themselves through employment.

This gendered citizenship became more visible and more obnoxious to
women as wage-earning became the female norm and as "alternative
families" gained political clout. For example, if every individual was
entitled to an old-age pension and unemployment compensation, we
wouldn't have to struggle about the inheritance rights of gay partners
or stay-at-home parents' need for support. Even today, banning sex
discrimination is difficult because it is difficult to get agreement on
what constitutes discrimination. In a few cases division among feminists
has held back the struggle. Kessler-Harris ends the book with a brief
reprise of EEOC v. Sears, Roebuck & Co., a 1980s marker of
this division and a case in which she herself played a significant role.
Sears admitted that very few women held any of its well-paying
commission sales jobs but argued that women were not interested in these
jobs because the positions were competitive, pressured, demanding.
Another historian of women testified for Sears against the women
plaintiffs, using her expertise to argue that women's primary attachment
to unpaid domestic labor led them to want only jobs which did not
conflict with it. Her arguments illustrated vividly the continuing
influence of this emphasis on male/female difference, not necessarily as
"natural" or essential but nevertheless beyond the appropriate scope of
legal remedy. Sears won the case.

There is one pervasive absence in Kessler-Harris's book--race--and the
omission weakens the argument substantially. Her understanding of how
the family-wage ideal works would have to be substantially complicated
if she made African-American women more central, for they were rarely
able to adopt a male breadwinner/female housewife family model and often
rejected it, developing a culture that expects and honors women's
employment more than white culture. Mexican-American women's experience
did not fit the family-wage model either, despite their reputation as
traditional, because so many have participated in agricultural and
domestic wage labor throughout their lives in the United States. Equally
problematic to the argument, prosperous white women who accepted the
family-wage model often didn't do unpaid domestic labor because they
hired poor immigrants and women of color to do it for low wages. These
different histories must affect how we envisage a policy that recognizes
labor outside the wage system, and they need to be explored.

One aspect of Kessler-Harris's economic citizenship concept is being
expressed today by progressive feminists trying to influence the
reauthorization of Temporary Assistance for Needy Families (TANF), the
program for poor children and their parents that succeeded AFDC. We are
pushing a House bill that would recognize college education and
childcare as work under the new welfare work requirements. This book is
a sustained argument for that kind of approach and should help it become
part of the policy discussion. It probably won't win. Some will call it
unrealistic. But today's policies are already wildly unrealistic, if
realism has anything to do with actual life. If we don't begin now to
outline the programs that could actually create full citizenship for
women, we will never get there.

One of the most persistent myths in the culture wars today is that
social science has proven "media violence" to cause adverse effects. The
debate is over; the evidence is overwhelming, researchers, pundits and
politicians frequently proclaim. Anyone who denies it might as well be
arguing that the earth is flat.

Jonathan Freedman, professor of psychology at the University of Toronto,
has been saying for almost twenty years that it just isn't so. He is not
alone in his opinion, but as a psychologist trained in experimental
research, he is probably the most knowledgeable and qualified to express
it. His new book, Media Violence and Its Effect on Aggression,
surveys all of the empirical studies and experiments in this field, and
finds that the majority do not support the hypothesis that violent
content in TV and movies has a causal relationship to real violence in
society. The book is required reading for anyone who wishes to
understand this issue.

I should say at the outset that unlike Freedman, I doubt whether
quantitative sociological or psychological experiments--useful as they
are in many areas--can tell us much about the effects of something as
broad and vague in concept as "media violence." As a group of scholars
put it recently in a case involving censorship of violent video games:

In a field as inherently complex and multi-faceted as human aggression,
it is questionable whether quantitative studies of media effects can
really provide a holistic or adequately nuanced description of the
process by which some individuals become more aggressive than others.

Indeed, since "media violence" encompasses everything from cartoons,
sports and news to horror movies, westerns, war documentaries and some
of the greatest works of film art, it baffles me how researchers think
that generalizations about "effects" can be made based on experiments
using just one or a few examples of violent action.

Freedman, by contrast, believes that the experimental method is capable
of measuring media effects. This may explain why he is so indignant
about the widespread misrepresentations and distortions of the research

He explains in his preface that he became interested in this area by
happenstance, and was surprised when he began reading the research to
find that its results were quite the opposite of what is usually
asserted. He began speaking and writing on the subject. In 1999 he was
approached by the Motion Picture Association of America (MPAA) and asked
to do a comprehensive review of all the research. He had not previously
received organizational support and, as he says, "was a little nervous
because I knew there was a danger that my work would be tainted by a
connection with the MPAA." He agreed only after making it clear that the
MPAA "would have no input into the review, would see it only after it
was complete, and except for editorial suggestions, would be forbidden
to alter what I wrote. Of course," he says,

they asked me to do the review, rather than someone else, because they
knew my position and assumed or at least hoped that I would come to the
same conclusion after a more comprehensive review. But there was no quid
pro quo. Although I was nervous about being tainted, I am confident that
I was not. In any case, the conclusions of this review are not different
from those of my earlier review or those I expressed in papers and talks
between 1984 and 1999.

The book proceeds meticulously to examine the approximately 200 studies
and experiments that Freedman was able to find after an exhaustive
search. (He suggests that the exaggerated numbers one often
hears--1,000, 3,500 or simply "thousands" of studies--probably derive
from a statement made by psychologist John Murray in the early 1980s
when the National Institute of Mental Health sponsored a review of the
media violence research. Murray said that there were about 2,500
publications of all kinds that were relevant to the review. This is far
different, of course, from the number of empirical experiments and

Freedman begins with laboratory experiments, of which he found
eighty-seven. Many commentators have noted the artificiality of these
experiments, in which snippets of a violent film or TV show are shown to
one group of viewers (sometimes children, sometimes adolescents or
adults), while a control group is shown a nonviolent clip. Then their
level of "aggression" is observed--or rather, something that the
experimenters consider a proxy for aggression, such as children hitting
a Bobo doll (an inflatable plastic clown), delivering a "white noise"
blast or--amazingly--answering yes when asked whether they would pop a
balloon if given the opportunity.

As Freedman and others have pointed out, these laboratory proxies for
aggression are not the real thing, and aggressive play is very different
from real-world violent or destructive behavior. He comments:

Quite a few studies with children defined aggression as hitting or
kicking a Bobo doll or some other equivalent toy.... As anyone who has
owned one knows, Bobo dolls are designed to be hit. When you hit a Bobo
doll, it falls down and then bounces back up. You are supposed to hit it
and it is supposed to fall down and then bounce back up. There is little
reason to have a Bobo doll if you do not hit it. Calling punching a Bobo
doll aggressive is like calling kicking a football aggressive. Bobos are
meant to be punched; footballs are meant to be kicked. No harm is
intended and none is done.... It is difficult to understand why anyone
would think this is a measure of aggression.

Freedman notes other serious problems with the design of lab experiments
to test media effects. When positive results are found, they may be due
simply to the arousal effect of high-action entertainment, or to a
desire to do what the subjects think the experimenter wants. He points
out that experimenters generally haven't made efforts to assure that the
violent and nonviolent clips that they show are equivalent in other
respects. That is, if the nonviolent clip is less arousing, then any
difference in "aggression" afterward is probably due to arousal, not
imitation. Freedman's favorite example is an experiment in which one
group of subjects saw a bloody prizefight, while the control group was
shown a soporific film about canal boats.

But the most striking point is that even given the questionable validity
of lab experiments in measuring real-world media effects, the majority
of experiments have not had positive results. After detailed analysis of
the numbers that the researchers reported, Freedman summarizes:
Thirty-seven percent of the experiments supported the hypothesis that
media violence causes real-world violence or aggression, 22 percent had
mixed results and 41 percent did not support the hypothesis. After he
factored out experiments using "the most doubtful measures of
aggression" (popping balloons and so forth), only 28 percent of the
results were supportive, 16 percent were mixed and 55 percent were
nonsupportive of the "causal hypothesis."

For field experiments--designed to more closely approximate real-world
conditions--the percentage of negative results was higher: "Only three
of the ten studies obtained even slightly supportive results, and two of
those used inappropriate statistics while the third did not have a
measure of behavior." Freedman comments that even this weak showing
"gives a more favorable picture than is justified," for "several of the
studies that failed to find effects actually consisted of many separate
studies." Counting the results of these separate studies, "three field
experiments found some support, and twenty did not."

Now, the whole point of the scientific method is that experiments can be
replicated, and if the hypothesis is correct, they will produce the same
result. A minority of positive results are meaningless if they don't
show up consistently. As Freedman exhaustively shows, believers in the
causal hypothesis have badly misrepresented the overall results of both
lab and field experiments.

They have also ignored clearly nonsupportive results, or twisted them to
suit their purposes. Freedman describes one field experiment with
numerous measures of aggression, all of which failed to support the
causal hypothesis. Not satisfied with these results, the researchers
"conducted a complex internal analysis" by dividing the children into
"initially high in aggression" and "initially low in aggression"
categories. The initially low-aggression group became somewhat more
aggressive, no matter which programs they watched, while the initially
high-aggression group became somewhat less aggressive, no matter which
programs they watched. But the children who were categorized as
initially high in aggression and were shown violent programs "decreased
less in aggressiveness" than initially high-aggression children who
watched neutral programs. The researchers seized upon this one highly
massaged and obscure finding to claim that their results supported the
causal hypothesis.

Freedman examines other types of studies: surveys that compare cities or
countries before and after introduction of television; experiments
attempting to assess whether media violence causes "desensitization";
longitudinal studies that measure correlations between aggressiveness
and preference for violent television over time. No matter what the type
of study or experiment, the results overall are negative. Contrary to
popular belief, there is no scientific support for the notion that media
violence causes adverse effects.

Why, then, have not only researchers and politicians but major
professional associations like the American Academy of Pediatrics and
the American Medical Association repeatedly announced that thousands of
studies have established adverse effects of media violence? One reason
was suggested to me recently by a pediatrician active in the AAP. The
organization's guidelines argue for scientific support for policy
statements. This puts the AAP in a serious bind when, as is the case
with media violence, its leaders have a strong opinion on the subject.
It's tempting then to accept and repeat assertions about the data from
leading researchers in the field--even when it is distorted or
erroneous--and that's what the professional associations have done.

Another factor was candidly suggested by Dr. Edward Hill, chair of the
AMA board, at a panel discussion held by the Freedom Forum in New York
City last year. The AMA had "political reasons," Dr. Hill said, for
signing on to a recent statement by professional organizations asserting
that science shows media violence to be harmful. The AMA is "sometimes
used by the politicians," he explained. "We try to balance that because
we try to use them also."

Because Jonathan Freedman believes the scientific method is capable of
measuring the impact of media violence, the fact that it hasn't done so
is to him strong evidence that adverse effects don't exist. I'm not so
sure. I don't think we need science to know from observation that media
messages over time can have a powerful impact--in combination with many
other factors in a person's life. Some violent entertainment probably
does increase aggression for some viewers, though for as many or perhaps
more, the effect may be relaxing or cathartic.

If the media do have strong effects, why does it matter whether the
scientific research has been misrepresented? In part, it's precisely
because those effects vary. Even psychologists who believe that the
scientific method is relevant to this issue acknowledge that style and
context count. Some feel cartoons that make violence amusing have the
worst effects; others focus on stories in which the hero is rewarded for
using violence, even if defensively.

But equally important, the continuing claims that media violence has
proven adverse effects enables politicians to obscure known causes of
violence, such as poverty and poor education, which they seem largely
unwilling to address. Meanwhile, they distract the public with periodic
displays of sanctimonious indignation at the entertainment industry, and
predictable, largely symbolic demands for industry "self-regulation."
The result is political paralysis, and an educational structure that
actually does little to help youngsters cope with the onslaught of mass
media that surround them.

The essential case for the abolition of capital punishment has long been complete, whether it is argued as an overdue penal reform, as a shield against the arbitrary and the irreparable or as part of the case against "big government."

The attacks hardened the resolve of immigrant bashers and anti-Semites.

When the New York City Board of Education called on public schools to
bring back the Pledge of Allegiance in the wake of 9/11, my daughter, a
freshman at Stuyvesant High, thought her big chance to protest had
finally come. Have you thought about what you'll say if you have to
justify not reciting it? I asked. "Sure," she replied. "I'll say,
there's such a thing as the First Amendment, you know--separation of
church and state? I mean, under God? Duh!" Judge Alfred Goodwin
of the Court of Appeals for the Ninth Circuit, meet my Sophie, future
president of the ACLU if the punk-rock-guitarist plan doesn't work out.

Virtually every politician in the country has issued a press release
deploring Judge Goodwin's ruling that the words "under God" constituted
a coercive endorsement of religion. "Ridiculous!" said the President.
Tom Daschle led the Senate in a stampede to condemn the ruling 99 to 0,
after they recited the pledge together. The Times editorial
expressed the standard liberal line, mingling world-weariness and fear:
"under God" is a trivial matter, so why arouse the wrath of the mad
Christians? You can turn that argument around though--if it's so
trivial, why not do the right, constitutional thing? Let the
nonbelieving babies have their First Amendment bottle! The very fact
that the vast majority of Americans believe in God counts against
inserting expressions of religious faith into civic exercises for
kids--civil liberties are all about protecting unpopular minorities from
being steamrollered by the majority. The history of "under God" is not
very edifying or even very long: It was added to the original
pledge--written in 1892 by Francis Bellamy, a socialist--by Congress in
1954 as a means "to deny the atheistic and materialistic concept of
communism." If that was the purpose, it worked. The new Evil Ones,
however, have no quarrel with being "under God"; it's the "liberty and
justice for all" they disapprove of. If we really want to drive them
nuts, we should change "under God" to "with equality between men and
women." Or better yet, retire the pledge as an exercise in groupthink
unbefitting a free people.

Something tells me we haven't seen the last classroom invocation of the
divine umbrella--Judge Goodwin has already stayed his own ruling--but
even if the decision is upheld, it's unfortunately the least significant
in a number of recent rulings about education. The Supreme Court
decision upholding the Cleveland school voucher program is a real,
nonsymbolic triumph for organized religion, which stands to reap
millions of dollars in public funds, taken directly from the budgets of
the weakest school systems. Theoretically, your tax dollars can now
support the indoctrination of every crackpot religious idea from
creationism to stoning, with extra credit for attending rallies against
legal abortion and for the retention of "Judea" and "Samaria" as God's
gift to the Jewish people. What happened to e pluribus unum?
(Interestingly, as David Greenberg notes in Slate, e pluribus
was replaced as the national motto in 1956 by... In God We
Trust!) And what about that pesky First Amendment? Writing for the 5-4
majority, Chief Justice Rehnquist argues that separation of church and
state is preserved because it is the parent, not the state, who actually
turns the voucher over to the religious school. By the same logic, why
not a health system in which patients get vouchers good for surgery or a
ticket to Lourdes?

The same day brought the Court's decision upholding random drug testing
of students who want to take part in after-school activities. Now
there's a great idea--take the kids who could really use something
productive to do with their afternoons, kids who, whatever mischief
they're up to, actually want to run track or sing in the chorus or work
on the yearbook, and don't let them do it! God forbid some 16-year-old
pothead should get a part in the drama club production of Arsenic and
Old Lace
. The harm of the ruling isn't just that kids who do drugs
will now have yet more time on their hands and yet more reason to bond
with their fellow slackers, it's that everyone gets a lesson in
collective humiliation and authoritarianism--stoned or straight, the
principal can make you pee in a cup. Consider too that one-third of
schools now offer abstinence-only sex education, in which kids are told
that contraception doesn't work and having sex before marriage is likely
to be fatal--if the kids don't go to parochial school, apparently,
parochial school comes to them.

The prize for the worst school-related decision, though, has to go to
the panel of New York State appeals court judges that reversed Justice
Leland DeGrasse's brave and noble ruling invalidating the state's school
funding formula, which gives less money per child to New York City
schools despite the fact that city schools have disproportionate numbers
of poor and non-English-speaking children. According to Justice Alfred
Lerner, author of the court's majority opinion, the state is required to
provide its young only the equivalent of a middle-school
education--enough for them to sit on a jury, vote and hold down a menial
job. Anything more is optional and can be distributed at will. (Why not
let kids drop out after eighth grade, you may ask? Well, then they'd
miss abstinence classes and drug tests and reciting the Pledge of
Allegiance!) The world needs workers at the lowest levels, the judge
observes, so let the black and Hispanic kids of New York City be the
hewers of wood and drawers of water and flippers of burgers. Somebody's
got to do it--and it's a safe bet it won't be the judges' children.

Maybe the critical legal theorists are right and the law is merely a
form of words into which can be poured whatever meaning the ruling class
wants it to have. It's hard to understand in any other way the court's
willful misunderstandings of the actual conditions of city public
schools, so that they could respond to plaintiff's evidence of schools
with decades-old outmoded science textbooks by harrumphing that there's
nothing wrong with libraries full of "classics."

Saving the worst for last, on the final day of the term the Supreme
Court issued 5-to-4 rulings on school vouchers and drug testing that
blow a huge hole in the wall of church-state separation and shrivel the
privacy rights of students.

Since 1996 Ohio has provided tuition aid for Cleveland grade school
students to attend private schools, special city or suburban public
schools and individual tutoring classes. In the 1999-2000 school year,
96 percent of the students in this program went to religious schools.
Nevertheless, the Supreme Court approved the voucher system (Zelman
v. Simmons-Harris
). Writing for the Court, Chief Justice William
Rehnquist noted that the tuition aid went initially to the parents, who
then endorsed the check over to the school. Because the parents could
have chosen one of the public school programs, the "incidental
advancement of a religious mission," wrote Rehnquist, is not
attributable "to the government, whose role ends with the disbursement
of benefits."

On its face, this is nonsense. The "achievement of a religious mission"
is directly attributable to the state, which actually pays the funds to
the religious institution; the parent is only a conduit who directs
where the money will go. The declared purpose of these schools is
religious indoctrination of students. The curriculums include prayer,
and all subjects are taught in a religious framework. Providing the
tuition money that makes it possible for these schools to enroll their
students puts the government squarely in the business of achieving a
religious mission.

Formally, the program was neutral, but in practice it was not. The
amount of aid was too little for nonreligious private schools but more
than enough for the low-cost religious schools, where the program paid
for the full tuition. The overwhelming proportion of this money thus had
to go to religious schools, which, of course, the Ohio legislature had
to know. Moreover, if formal neutrality is the test, a program will pass
muster even if all the money and students go to religious schools, so
long as it has some secular purpose. Since such a purpose can always be
produced, the door is wide open for massive state support of
fundamentally religious activity.

The focus on choice ignores the point of the Establishment Clause of the
Constitution. That clause is not designed to promote a choice between
religious and nonreligious institutions, nor is there any right to such
choice at state expense. The intent of the Establishment Clause is to
avoid spending taxpayer money in a way that promotes religion and thus
encourages sectarian rivalry. We had a great deal of such strife before
1787, and the clause was adopted to prevent this. Also, as Jefferson
explained, no one should be "compelled any religious
worship, place, or ministry whatsoever...[even a] teacher of his own
religious persuasion"; Madison, the father of the Bill of Rights, shared
those sentiments.

The decision will probably not result in many more voucher programs.
There is a lack of state money for education and strong allegiance to
public schools; studies by the government and other organizations do not
support the claim that voucher programs substantially improve academic
achievement. The decision will, however, produce many bitter religious
fights. As soon as the decision came down, state and federal legislators
introduced voucher legislation. There will also be conflicts over other
programs, including challenges by religious groups to the more stringent
provisions on church-state separation in state constitutions.

The Court's drug testing decision is also more important for what it
portends than for its immediate result. In 1989 the Vernonia, Oregon,
school district instituted a drug testing program for student athletes.
In 1995 the Court approved the program but stressed the special
circumstances of the case: Vernonia had a serious drug problem in which
athletes were the leaders of the drug culture; missed football plays and
serious sports accidents had been attributed to drug abuse. The Court
cautioned, however, "against the assumption that suspicionless drug
testing will readily pass Constitutional muster in other contexts."

That caution disappeared, however, when the Tecumseh, Oklahoma, school
district found drugs on the campus, heard students talk about drug use
and decided to test all middle and high school students who wanted to
participate in competitive extracurricular school activities. Lindsay
Earls, a member of the choir, the marching band, the Academic Team and
the National Honor Society objected but, after winning in appeals court,
lost in the Supreme Court (Board of Education of Independent School
District No. 92 of Pottawatomie County v. Earls

Writing for the majority, Justice Clarence Thomas ignored all the
special circumstances of the Vernonia case and dismissed the absence of
a demonstrated problem of drug abuse as unimportant. Because (1)
students have a reduced expectation of privacy, (2) the intrusion is
"negligible," (3) the sanction (exclusion from extracurricular
activities) is minor and (4) drug abuse is a bad thing, the program is
acceptable. Any effort to link drug abuse to choir singing, the marching
band or the Academic Team would have been ludicrous, and Thomas didn't
even try. On his reasoning, as long as the sanctions are minor, all
students may be subjected to drug testing because the other factors he
mentioned always exist.

Although the decision is far-reaching, its immediate impact is likely to
be modest. Few schools routinely test even their athletes, and
widespread testing is expensive. The decision underscores once again,
however, that for the Supreme Court, the rights of young people are
shredded when they walk through the schoolhouse gates.

Politicians and courts are taking their cues from growing public


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