In a case involving religion in public schools, Supreme Court nominee Sonia Sotomayor sat on the 2nd Circuit panel that heard the appeal. Their unanimous decision in Rosario v. Does 1 to 10 – affirming a school's right to restrict teachers from proselytizing students during class – shouldn't be a controversial one. If there are tough lines to draw in some cases revolving around religious activity by school officials, this frankly isn't one of them.
I bring it up though because at the time of the controversy that led to the lawsuit, Religious Right leaders – many of whom are now gearing up to oppose Sotomayor's nomination – considered the incident a rallying-cry moment for those who lament the loss of religion in public schools. I mention it also because – as I posted earlier – critics like Jay Sekulow are referring to Sotomayor as having a very strict church-state separation viewpoint, a charge for which I can't find one shred of evidence. So, I can't help but wonder: was he issuing that critique out of habit? Or was he possibly talking about this case? Read more background about the details of the case, the spectacle that followed, and the decision Sotomayor signed but did not author, below the fold.
In June of 1998, then-Majority Whip Rep. Tom Delay (R-TX) called a press conference to vent a flurry of outrage among leaders of the Religious Right. A middle-school teacher in the Bronx had been fired for, among other things, praying and proselytizing over her students and refusing to assure school officials she wouldn't do it again. With the unassuming but defiant Mildred Rosario at Delay's side, the event turned kicked off a veritable culture-war spectacle.
As the Washington Times coverage stated:
Congressional conservatives…rallied around the Bronx teacher fired for praying with her middle-school students and who said she would do it again.
Delay – who did not allow her to answer questions about the details of the event – railed at a culture that would permit her firing over a "prayer to offer comfort" to her 6th grade class after they received word that one of their classmates had tragically passed away. The NYTimes reported that despite the fact that her "dismissal" would "seem to be clear cut", Rosario had become a "cause celebre" for the prayer-in-schools crowd that included the Rutherford Institute, then-Rep. Newt Gingrich (R-GA) and his "Values Action Committee".
The outrage from those circles wasn't newly bubbling over the cause of one school teacher. Earlier that month, they had narrowly lost a bid to advance a constitutional amendment that would return school-sponsored prayer to the classroom. The Istook Amendment received a majority vote in the House, but fell short of the 2/3 needed for a proposed change to the Constitution. At Delay's news conference just three weeks later, it was clear this defeat was still in his mind. A.B. Stoddard's report in The Hill quotes him as touting that congressional majority for prayer in schools, saying it "surely illustrates the will of the people on this issue." Ready for a fight, the Religious Right vowed to champion Mildred Rosario's cause and support her court battle.
Eventually, that battle led to Judge Sonia Sotomayor's 2nd Circuit panel. By then, the spotlights of the media circus were long gone. Gone too was the promised legal support. Rosario handled her own appeal pro se.
Faced with the facts of the case, the judges could hardly have reached any other conclusion than the one they did: the school district was entirely within the law when, out of concern for the separation of church and state, they placed restrictions on the teacher's religious speech in the classroom.
What were those facts? The appellate ruling (36 FED. Appx. 25, *2002 U.S. App. LEXIS 11127) summarizes the teacher's own testimony this way:
At trial, Rosario, who was represented by counsel, testified that on the morning of June 8, 1998, an announcement was made over the school intercom that a Hunts Point student had died. The school was asked to observe a moment of silence. After the announcement, Rosario's 6th grade students began to cry and hold each other. In an attempt to comfort her students, Rosario spoke for several minutes about her religious views. For example, Rosario stated that according to the Bible, "Jesus was the son of God" and that "one must come through Jesus to get to God." Rosario also approached each student, placing her hand on their foreheads, and asked God to protect them and their families.
Obviously, June 8, 1998 was a tragic day for her students, a horrible circumstance that should allow some latitude for teachers in handling such an intensely emotional time. She should not be criticized for answering difficult questions honestly. To her credit, I suppose, Ms. Rosario offered her class the option of not participating in the religious activities. Fortunately, though, even in 1998 we were long past the days when young students had to choose between classroom ostracism and religious indoctrination. Clearly she went well beyond even that with her students though, culminating in – as the NYTimes reported – her "asking 'if anyone would like to accept Jesus as their Saviour'".
Most importantly, as Melissa Rogers, then Associate General Counsel of the Baptist Joint Committee, wrote in Report From the Capital, Rosario was fired "when she would not promise to refrain from schoolroom prayer in the future." It was not merely actions during a moment of grief that caused school officials' concern.
That brings me back to today and the nomination of Judge Sotomayor to the U.S. Supreme Court. Her 2nd Circuit panel did the right thing – and frankly, it couldn't have been a tough call – in ruling:
After a careful review of the trial transcript, we find that the District Court properly entered a directed verdict against Rosario with regard to her due process, free speech, and related state law claims. As to Rosario's free speech claim, we note that even assuming her religious discussion with her students addressed a matter of public concern–a question the District Court did not address–the School Board's "strong, perhaps compelling interest in avoiding Establishment Clause violations" justified its actions in terminating Rosario.
Still, I'm not sure that tells us much – not about Sotomayor's church-state views anyway. If her opponents want to use this case to cast the potential justice as being overly strict in church-state separation, they are the ones who will show themselves to be well outside the mainstream in finding the proper constitutional balance. At the time, perhaps in the heat of losing a legislative battle over prayer in schools, they showed just that. The Establishment Clause does present difficult questions, but Rosario v. Does 1 to 10 did not especially pose them.
As the NYTimes editorial board urges, the upcoming confirmation process should include a serious questions of church-state jurisprudence to determine Judge Sotomayor's philosophy toward the truly difficult matters in the area today. If, during that process, religious right leaders once again call upon the plight of Mildred Rosario as an example of an overly aggressive separation of church and state, here's hoping the Judiciary Committee and the media will remember the reasons for her case correctly: not merely as a teacher fired for offering a simple prayer of comfort in a tragic time, but one who used the opportunity to discuss her Christian beliefs, who laid hands on 11 and 12-year-old students one by one in prayer offering to lead them to Christ, and who pledged to do it again if given the chance.
Well-intentioned? Surely, yes. But just as outrageously unconstitutional.
