Stubbornly Persistent Intrusions

 

One hundred years ago, in July, 1925, the State of Tennessee, these United States, and the entire world within reach of the communication technology and media of the time were treated to the spectacle of what's known as the Scopes Trial.  From July 10th to July 21st a high school teacher was prosecuted for teaching the theory of evolution in violation of the law of the Volunteer State.

Clarence Darrow, William Jennings Bryan and H.L. Mencken participated in the spectacle, among others. Their appearances in that courtroom made it the peculiar landmark of our history it became; seemingly a victory for the separation of church and state assured by the Constitution although Scopes was found guilty.  The victory was due to the spectacle created.  The law was shown to be an absurd consequence of ignorance and religious repression of a well-established scientific theory intruding on public education.

But if there was a victory it was short-lived.  When it comes to public education, those legislators who believe that God is responsible for the creation of the horrible human race still insist that this be taught in public schools. Those who think God gave us Ten Commandments (including one that mandates his worship) demand they be displayed in public schools. So, the intrusion of religious beliefs in public education continues. 

Many Americans seems to want the religion they personally prefer to be taught in public schools.  They're not content to merely practice their religion freely, without hindrance by goverment or others.  They want it, or at least aspects of it, to be required parts of public schooling.  Perhaps they assume all Americans have similar religious beliefs and so wouldn't object to the schools imparting them to their children; perhaps they don't care if they do or don't.  I suspect the latter is the case.

In fact, religious education is required, more or less, in many countries.  So, the urge to impose religious instruction on students isn't unique to America. Our Great Republic, though, is somewhat unique due to the clause in the First Amendment prohibiting government from making laws regarding the establishment of a religion.

There is debate over whether the intrusion of religious beliefs or symbols in schools constitutes the establishment of a religion.  That aside, my interest is in the question: Why does the desire that religion be taught in public schools persist?

You'd think that parents themselves could arrange for their children to learn of their religious beliefs. There are churches and other places of worship everywhere to assist in that task. Is it thought that people will only become or remain adherents of an approved religion if intelligent design and the Ten Commandments are taught in schools?  That's difficult to believe.  Is it thought that students will lose their faith if taught the theory of evolution, or if the Ten Commandments are not prominently displayed somewhere on school premises?

Again, this seems very unlikely.  The religious education I received in Catholic schools didn't serve to convince me of anything where religion was concerned, and served more than anything to result in a loss of faith.

I doubt the intrusion of religion in public schools accomplishes anything.  I know of no study or evidence establing that it does. My guess is that the efforts at religious intrusion into public education persist because true believers don't really expect anything will be accomplished.  They feel the intrusion is inherently good. There need not be any result.  No opportunity to express their beliefs can be missed.  There is a kind of compulsion involved.  A form of religious exhibitionism.

The Law as Public School Teacher

You'd think our Glorious Union has had enough of laws seeking to dictate what is or is not taught in public schools.  The infamous Butler Act, adopted by the State of Tennessee nearly 100 years ago, led to the Scopes Trial, which led to the humiliation of William Jennings Bryan (and possibly his death mere days after the trial concluded) by Clarence Darrow, to some blistering articles by H.L. Mencken, and made the United States the laughing-stock of a good portion of the Western World, is perhaps the most notable law which sought to do so in modern times.  Or at least it was, until recently. 

The Butler Act at least had the virtue of clarity.  That law stated in pertinent part "[t]hat it shall be unlawful for any teacher in any of the universities, normals and all other public schools of the State which are supported, in whole or in part, by the public school funds of the state, to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals."  I know, the use of the word "story" in the law is amusing.  The legislators of Tennessee were apparently unaware of the implications of that word.

But now the State of Florida has adopted a law which similarly seeks to regulate what takes place in classrooms, which not only lacks clarity but seems to flaunt its vagueness.  This is the so-called "Don't Say Gay" law, officially Florida SB 1834."  It states, also in pertinent part:

 "A school district may not encourage classroom discussion about sexual orientation or gender identity in primary grade levels or in a manner that is not age-appropriate or developmentally appropriate for students.  A parent of a student may bring an action against a school district to obtain a declaratory judgment that a school district procedure or practice violates this paragraph and seek injunctive relief. A court may award damages and shall award reasonable attorney fees and court costs to a parent who receives declaratory or injunctive relief."

Defenders of the law like to point out that it provides that discussion of sexual orientation or gender identity is only contrary to the law in kindergarden to third grade, according to its terms ("primary grade levels").  Who would object to that, really?  I doubt anyone does.  But that's not all the law says.  It also says discussion of such topics may not be encouraged "in a manner that is not age-appropriate or developmentally appropriate for students."  So, the law clearly applies to students of other grade levels.

A reading of the law raises several serious questions:

How does one encourage classroom discussion?  Must the discussion take place in a classroom for the law to be violated, and a cause of action arise?  What is "sexual orientation or gender identity"?  Does the fact that the law refers to a "school district procedure or practice" indicate that encouragement (whatever that may be) by a single, "rogue" teacher or other school district employee (a janitor?) wouldn't be actionable? Is it necessary that a policy or procedure, sanctioned by the school district expressly or by implication, as an entity, exist? What do "age appropriate or developmentally appropriate" mean? Is that left to the courts and the lawyers who litigate claims to decide?  Just what kind of damages are available to a parent in the action created by this law? 

What is "age appropriate or developmentally appropriate" is clearly subjective, and would vary from student to student.  Florida's legislature probably gave parents the right to sue under the law in an effort to avoid enforcement of the law being considered "state action" for constitutional purposes.  But that would leave interpretation of the law undetermined until precedent could be established through the courts, and that won't happen anytime soon.  In the interim, school districts and teachers will be justly terrified of being sued by some parent or another who thinks wrong words are being spoken in classrooms.  They may therefore be inclined to take fairly drastic steps to avoid litigation, e.g. refusing to require the reading of any books the subject matter of which involve sexual relations, prohibiting the use of certain words in classrooms, disciplining teachers, etc.

In short, it's a shoddy law, and will be difficult and expensive to implement.  The cynic in me wonders if the law was adopted purely to discourage talk of sex in the classroom, especially talk of particular kinds of sex.  Sex is something which has always frightened Americans, especially when it comes to the task of making children aware of it.  I think most of them would like if others had that task.  It may even be, ultimately, a form of posturing by politicians, always interested in obtaining popular support (at least when it doesn't interfere with monetary gain).

The law is alleged to be one protecting parental rights.  But do parents have a legitimate interest in making certain their children under the age of majority don't hear certain words of learn what other people are in terms of gender or sexual orientation?  Is it possible, indeed, that they think students won't otherwise learn of such things or speak about them unless they're "encouraged" to do so by teachers?  Only a fool would think that.

For my part, I think most parents are detriments to education, generally speaking.  They recognize that basic skills such as reading, writing and 'rithmatic (as the old song goes) must be acquired, though they probably would prefer that the use of the legendary "hickory stick" be reserved to themselves.  But otherwise, I think the preference of most is that their children think like them, be like them, talk like them and act like them until they become adults, at which time parents can claim that they're beyond their control and influence.  The sad fact is that most parents would prefer that their children not learn more than their parents have, at least in cultural or social matters in my opinion, and it may be that this law is an expression of that fact.

Justice itself isn't blind, but the law is, in the sense that the law may be good or bad, wise or stupid.  This particular law is stupid.  But it is a law nonetheless, just as the Butler Act was law, and may wreck all the havoc it did, and more.  

Mencken on the Law, and Lawyers

I've written now and then regarding the great H.L. Mencken and his work, generally with admiration.  Now and then I'm disappointed with him, though; particularly by his elitism.  There seems little question that he despised democracy, and I'm rather fond of it, for all its faults.  He's certainly not the first intelligent person to loathe that form of government.  To his credit, it seems he was not so naive as to think that other forms were necessarily better than democracy, as were certain others commencing with Plato, the first systematic totalitarian thinker in our history.  But his unabashed contempt for the common herd can be disturbing.

I also found disturbing a little piece he wrote on war, in which he claimed that it was not as bad as some thought as most were not killed and those wounded generally were not wounded seriously enough to cause concern.  To my knowledge he never experienced war, even as a journalist, and by rights should have said nothing regarding what was encountered by those who did.

He wrote about the law and lawyers, as well, and I think his comments about my fellows and my profession are fair enough for the most part.  Indeed, he affected to admire the intelligence and intellectual prowess of lawyers a great deal.  He sat through many trials, and was impressed by the lawyers' ability to learn a great deal about a subject in a very short time, to think quickly, argue persuasively, on various topics.  But he thought that all this talent and ability was necessarily devoted to matters which are, for the most part, trivial.  That is to say that the subject matter of the law is generally insignificant.

I would say that the word "mundane" is a more appropriate word.  There's no question that in most cases the law and lawyers deal with problems that arise due to the interaction of people in the course of ordinary life.  Momentous issues regarding liberty, religion, free speech are addressed as well of course, but this is rare.  Mencken notes that as a result most lawyers are not remembered by history, with some exceptions, and I think this is true.

Perhaps he would have acknowledged that in at least one instance in his lifetime he witnessed the legal system addressing a matter of some significance, in the case of the Scopes trial.  I think he would say that at least one lawyer came out of that looking well, Clarence Darrow, but that others did not.  All of the others.  Perhaps he even felt that Darrow would be remembered.  He is, but it's hard to say for how long he will be, or what Mencken would have thought would be an appropriate period.  I'm certain, however, that he'd be horrified to learn that even today some insist that religion be taught in school in our Great Republic, or "creationism" at least.  No doubt he'd consider this to be verification of his opinion that "[d]emocracy is a pathetic belief in the collective wisdom of individual ignorance."

Intellectuals seem always to be contemptuous of, or at best indifferent to, the mundane.  Perhaps this is why they so often fail to understand or hold the interest of most people.  They underestimate, should they even consider, the role the mundane inevitably plays in shaping our desires and concerns and in establishing what is important to most of us.  This renders them significant and persuasive only to a few, a relatively small group of individuals much like themselves.  Especially in democracies, therefore, they have little influence outside of academia, and are even looked upon as foolish.  Even in their thought they seem to discount ordinary life and so construct theories disconnected from it--castles in the air.

We lawyers do indeed deal in the mundane, as that is what the law concerns.  It relates exclusively to how we live our lives and how others do.  But it seems to me that this doesn't render it uninteresting or insignificant.  For good or ill, it's probably the most significant institution or system devised by humans.  It's all-important, and increasingly regulates our conduct if not our thoughts. 

It's like that most annoying "external world" some philosophers claim we cannot know.  We had better take it into account nonetheless, and pay it careful attention.  We ignore it at our peril.

Something Regarding Free Will

I've been reading a little book, or essay, on free will by Sam Harris (it's about 70 pages).  I haven't read much on the issue, I must confess.  But if this work by Harris is representative of the debate, it doesn't seem like much of a debate.  Alas, this seems to be my reaction to much of what passes for philosophy; that's to say, of course, much of what I read which purports to be philosophical.  It may be I don't read enough, especially regarding the "question" of "problem" of free will.  It may also be that I'm simply stupid.

Regardless, I'm perplexed because a great deal of what he has to say in support of his claim that free will is an illusion seems to me to be relatively uncontroversial.  I think of myself as being a proponent of free will, so I find it difficult to believe that anyone who is supportive of it would be strongly opposed to some of Harris' position.  However, it's evident he believes there to be some significant opposition to his claim.

If I understand him correctly, he notes that we are all influenced by our genes, our hormones, our neurons, our environment, our upbringing, and various other factors regarding which we have no control, and which are not caused by any deliberate action on our part.  He feels that these factors so influence our thoughts, feelings, desires, and conduct that there is clearly no such thing as free will.  We can't really know why we think and feel and act as we do, and we don't really decide what we do, freely, because all these things are the result of such factors.  We may, if asked why we make a certain decision, be able to come up with a rational explanation which seems to be based on our voluntary thought process; but that explanation is not valid.  It, no doubt, is also the result of the many factors over which we have no control.

It happens that I have trouble thinking of anyone who would maintain that our genes, hormones, neurons, environment, upbringing etc. do not influence our decisions.  It may be that there are such folk, just as there are those who think that the earth was created in 6 days about 6,000 years ago.  However, I don't see such folk as serious contributors to the free will debate which apparently is ongoing.

I can conceive of debate over the extent to which such factors influence our decisions, but I find it difficult to accept the idea that a proponent of free will would or must maintain that they have no influence whatsoever.

Oddly, Harris seems to acknowledge that we can, sometimes, come to a conclusion or decision all by ourselves, as it were, with a minimum of influence by these factors, and in that sense have a certain degree of control over what we do.  The examples he uses in this regard make sense to me as well, and lead me to wonder just why he feels free will is an illusion.  I wonder whether he feels that "free will" means the ability to make decisions without being influenced by the factors I allude to; in other words, I wonder whether he thinks there are proponents of what I'll call here "absolute free will" and seeks to persuade us there is no such thing.  Unsurprisingly, because I think that there are few such proponents, I wonder whether he's beating the proverbial straw man.

For me, it's quite possible to believe in free will yet acknowledge that much of what we do is influenced by our genes, etc.  That's merely to say I don't believe in "absolute free will."  What we desire and want to do are naturally influenced by our environment and our nature, as we are organisms having a certain constitution living in a particular environment.  If we weren't so influenced, we wouldn't exist.  Yet we make decisions which cannot be attributed solely to influenced desires and needs.  We can choose different ways to satisfy them, for example, and determine what ways are more effective.

Harris uses as an example the fact that after many years, he decided to return to the study of and training in martial arts which he had engaged in when young.  He claims that while he can think of several good reasons supporting why he returned to marital arts, but he can't really know why he did so, rendering his return to them something different from a voluntary decision.

I fenced when young, stopped fencing for many years, returned to it for about 5 years, and have stopped fencing once more.  I stopped fencing because the club at which I fenced is open only certain evening during the week and on the weekend, and my schedule and the schedules of those who pariticipate in determining my schedule prevent me from fencing.  I suppose I could fence, but would have to skip meals, reduce sleep, and am not inclined to do so.

Am I coming up with reasons a posteriori?  Was I somehow compelled to stop fencing by forces beyond my control?  To a certain extent, yes; as my schedule changed for reasons which it is not important to address.  And, my genes and whatever may lead me to not want to go without meals or sleep.  But is this what is meant when we say that "free will" was not involved in my decision to stop fencing?  If so, it's difficult for me to believe that the free will debate has any significance.

Harris maintains we can dispense with the illusion of free will and still maintain that people are responsible for their actions, morality, and the legal system.  I find this unsurprising, though, because a belief is "absolute free will" is not required to maintain that people have at least a certain degree of responsiblity

Clarence Darrow was a lawyer who regularly argued that his clients, at least, were not really responsible for the crimes they were said to commit.  I doubt, though, that he thought he never voluntarily made a decision in his life.

As with most other things, I think that a determination whether or not a decision is "freely" made must take into consideration the circumstances and the decision-maker.  The extent to which a decision is free will vary.  I doubt most of us ever feel we're absolutely free, or that we're absolutely "unfree" and think that is a reasonable conclusion to make.