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Religion:

From Judge McConnell's separate partial concurrence and partial dissent in Christian Heritage Academy v. Oklahoma Secondary School Activities Ass'n (Apr. 9):

The plaintiff's name may suggest this case is about religion, and in a sense that is true. It is about Oklahoma high school football. And there is only one path to the honor and the glory of interscholastic football competition in Oklahoma: membership in the Oklahoma Secondary School Activity Association (OSSAA). Members of the Association enter the promised land of regularly scheduled games with neighboring schools and the prospect of championship competition with the leading teams in the State; those not of the elect are thrown into the outer darkness of few teams to play against and long bus rides to get to them. For public schools, membership in the OSSAA is sola gratia: all they have to do is knock, and the door is opened unto them. For nonpublic schools, narrow is the gate and difficult is the way. They may be admitted only according to the inscrutable will of a majority vote. The question is whether this violates the Equal Protection Clause.

The substantive question that divides the panel -- and that divides the Tenth Circuit from the New York Court of Appeals -- is also quite interesting.

OKGhostrider (mail):
Poetic...
4.12.2007 6:51pm
Clayton E. Cramer (mail) (www):
My guess is that McConnell is making an argument against the majority's rational basis claim because rational basis is so easy to abuse--almost anything that a majority of the Court decides it doesn't like, becomes "irrational."
4.12.2007 7:21pm
Cornellian (mail):
I would have said that rational basis is easy for legislatures to abuse - virtually any base motive can be covered up by an unrelated rational basis justification. In Constitutional law, "rational basis" is generally the code phrase for "government wins."
4.12.2007 7:50pm
Cornellian (mail):
those not of the elect are thrown into the outer darkness of few teams to play against and long bus rides to get to them

I prefer to phrase it as "cast into the outer darkness" but much as I like the phrase, it seems a bit colorful for what is, after all, just a game.
4.12.2007 7:51pm
ReaderY:
If this violates rational basis, how can it be consistent with rational basis for judges to pick law clerks on personal discretion?
4.12.2007 8:02pm
Joe Bingham (mail):
Is OSSAA a state org.?
4.12.2007 8:26pm
Bruce Hayden (mail) (www):
Interesting problem. Apparently, not can the OSSAA not discriminate arbitrarily, but the state actors who belong to the OSSAA (which is almost all the members) also can't act through animus.

It is not surprising that school administrators throughout OK didn't like the school - not only was it apparently religious, but private schools like it threaten their very existance, showing how badly the public school system does. The problem they face though is that they can't now vote against the school because of that, but have to do so based on relevant reasons.

Interesting in the timing here, and given that the 10th Circuit is headquartered in Denver, but this animus against private schools recently became quite evident as the two Democratic education chairs in the CO legislature got in a bit of hot water recently in an email exchange between them that had one of them saying:
"There must be a special place in Hell for these Privatizers, Charerizers, [sic] and Voucherizers! They deserve it!"
The poster, Rep. Merrified, comes from Manitou Springs, but is referred to by more conservative pundits as D-NEA and D-Teachers Unions. Of course, legislators can, and often do, vote based on animus, as well as the more noble emotions. And that is quite legitimate. But the school districts themselves are not legislators, and presumably, the administrators who voted against the school here are not elected.

With this in the Denver papers in the weeks before the opinion came out, it is possible that the panel may have been somewhat sensitive to the animus of the public education establishment towards private schools.
4.12.2007 8:46pm
Bruce Hayden (mail) (www):
Is OSSAA a state org.?
The courts here considered it such, as well as almost all of its voting members. And, thus, part of why the decision was interesting. Both the OSSAA and most of those voting are bound by the 14th Amdt. as state actors.
4.12.2007 8:48pm
Bruce Hayden (mail) (www):
If this violates rational basis, how can it be consistent with rational basis for judges to pick law clerks on personal discretion?
My stab at that is that law clearks are personal, and the judge has to be able to work with them. And that probably passes rational basis analysis.

Besides, not allowing a judge discretion in picking his clerks would IMHO lead to a slippery slope. Should the president be able to replace his Secretary of State because he didn't like her? Even if the reason that he didn't like her was because she was a Democrat appointed by his predecessor? Of course, this fits into the situation right now with the eight fired U.S. Attorneys. Since these are traditional patronage positions, how arbitrary can the President and his AG be when firing them? So, maybe we have started down that slippery slope.
4.12.2007 8:54pm
Joe Bingham (mail):
Oh, what tangled webs we weave, when first we practice unconstitutionally socialized education...
4.12.2007 9:00pm
Fub:
Cornellian wrote at 4.12.2007 6:51pm:
I prefer to phrase it as "cast into the outer darkness" but much as I like the phrase, it seems a bit colorful for what is, after all, just a game.
You never spent much time in Oklahoma, right?
4.12.2007 9:22pm
Wild Pegasus (mail) (www):
I'm glad I wasn't the only nerd paying attention in Sunday School.

- Josh
4.12.2007 9:53pm
Richard Aubrey (mail):
There's another problem, not religious at all.

Private schools, not being restricted by geography, can recruit athletes from all over. A bit of "help" from the boosters is not out of the question.
I once rained on an association Christmas party by suggesting that the local Catholic school was recruiting at great distances. The resulting argument, which I watched, became heated.
In our local high school league, the Catholic school punches well above its weight--considering its enrollment--because of--ssssh recruiting--plus they seem to always have an alum officiating or running the clock or something. Most annoying, and public schools could well want to avoid such things. I sure as hell did, and it had nothing to do with religion.
4.12.2007 10:00pm
Joe Bingham (mail):
Private schools may recruit from across a wider geographic region; public schools recruit from across wider demographic ranges. Each has advantages.
4.12.2007 11:29pm
John Fee (mail):
The court correctly treated OSSAA as a state actor in this case based on the holding of Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001). The state action holding of Brentwood Academy is questionable, but it's pretty hard to distinguish it from this case, and the 10th Circuit doesn't have the liberty to disagree with it.
4.13.2007 12:05am
Richard Aubrey (mail):
Joe. You're right in theory. But in practice, going for the hot shots wherever they may be is better than taking pot luck with the talent in your district.
4.13.2007 12:50am
Joe Bingham (mail):
I see a social advantage in facilitating wider recognition of the superiority of private education in every arena. Call me a Randian snob. =) (now call me a loser for using an emoticon)
4.13.2007 1:22am
ReaderY:
My stab at that is that law clearks are personal, and the judge has to be able to work with them. And that probably passes rational basis analysis.

And people don't take athletics personally? I thought a law clerk was a kind of employee. Why shouldn't other kinds of employers be permitted to pick employees they feel able to work with, and why shouldn't members of an athletic association be able to select opponents they feel able to play with?

The issue here is that the two can't be distinguished. It's saying that an objective is irrational as a matter of law when when attempts to achieve the same objective oneself.
4.13.2007 2:42am
Cornellian (mail):
You never spent much time in Oklahoma, right?

Might have driven through it once.
4.13.2007 3:28am
Jesse Wendel:
Not really related, except as to how Oklahoma Courts work:

I called the District Court in Tulsa County, Oklahoma yesterday (April 12, 2007), trying to find out why the mostly state-wide computer system for the State Courts in Oklahoma, wasn't allowing me to read the pleadings in a wrongful death case which includes as one of the two Defendants, the California based self-help group Landmark Education Corporation: Tulsa County, No. CJ-2007-818.

When the case had been in Oklahoma County -- CJ-2006-5200 -- there'd been no trouble reading the various pleadings off the internet. The Clerk in Tulsa County whom I reached by telephone told me, a) the system for scanning the pleadings in wasn't fully funded yet, b) wouldn't be for a while, c) they didn't plan to go back and scan either current or old cases, d) that making anything available might violate the privacy rights of litigants under federal law -- and when I politely scoffed at that, she said, e) that even though -- and this is as close to a quote as I can remember -- that other counties may make their pleadings available over the internet, however Tulsa County did things its own way and would only make available whatever it chooses to made available, period, and would I like to speak to her supervisor?

When I spoke to her supervisor, I asked if there was any way I could get the pleadings I wanted now, rather than waiting for a system which by all accounts isn't even going to scan in the posting of this current case. She suggested I come to the Courthouse. In Tulsa.

I politely reminded her I was in Seattle. She didn't have anything else to offer, till I asked if there was any way to get copies of documents, at which point she was very helpful, and said that oh yes, they make microfilms of everything, and for a fee -- $1.00 for the first page, and something else which I don't remember for each additional page, they'd be happy to mail me the microfilm of these pleadings.

Well, I can certainly see how that just beats the heck out of a scanner and an open-source equivalent of PDF files, or something similar. I thanked the nice lady most sincerely and got off the line.

I remember back many years ago when I was paramedicing in both Oklahoma City and Little Rock, getting a speeding ticket in a small town between Tulsa and Oklahoma City while making a visit to a girlfriend, but this call didn't seem like a good time to bring it up.
4.13.2007 7:48am
Clayton E. Cramer (mail) (www):
Cornellian writes:

I would have said that rational basis is easy for legislatures to abuse - virtually any base motive can be covered up by an unrelated rational basis justification. In Constitutional law, "rational basis" is generally the code phrase for "government wins."
Very true. But a consistent application of the theory is what I want. If the courts are going to require a very high standard for allowing governments to discriminate, then they need to use that high standard consistently, not just for liberal causes. If they aren't going to do so (so that they can continue the discriminatory issuance of gun permits, for example), then they need to do so consistently.
4.13.2007 2:59pm
thewagon:
If you think recruiting across districts only takes place in private schools, you obviously have no experience with high school football.
4.16.2007 3:50pm