by Max Brantley
He didn't respond to my e-mail seeking comment, but he told the NWA hybrid newspaper operation that he'll be happy to tell his teachers to provide religious instruction before or after the seven-hour school day required for state funding. He said he objected to being unable to pray with parents or others who come to school during the day for his counseling. He also isn't happy about getting unannounced inspections.
This is precisely the loophole I figured he'd exploit in rules issued yesterday by the state and reinforced by DHS answers to questions I posed. DHS says the money it sends to Harris can't be used for religious instruction. But his private business is welcome to do whatever it wants outside the seven hours of care required under the ABC taxpayer program for daycares. Never mind there'd be no kids, no program, no building without the taxpayer money.
Think about it. What if the extra hours are worked by people whose only source of salary from Harris is the state ABC pay? Can he really argue they are doing this on their own time? Can he make those extra hours a condition of employment? Can he really claim the extended hours provided children enrolled in the program are not supported by the ABC money for the entire time they spend in a facility that wouldn't exist but for tax money? No, he can't. But there are now many ways for him to skin the cat and keep the dollars flowing, a half-million from ABC and tens of thousands more from nutrition and other tax-funded programs.
The religionists believe it is their calling to do mission work, with tax money if they can get it. The state of Arkansas has provided them loopholes. The state had already demonstrated its lack of concern for the U.S. Constitution. Its failure to enforce existing — and explicit — state law until Americans United for Separation of Church and State made a complaint about religious instruction is a pretty good measure of how rigorously it is likely to enforce the new rules.
UPDATE: Justin Harris also Twittered today:
Find it curious that current AR Administration is more worried about Jesus being taught than the AR Forestry Comm. Are we going Rogue?
UPDATE II: I heard from Americans United's staff attorney, Ian Smith, today. He said the proposed rules contained much that was praiseworthy. "Overall, I think they're pretty good." But ..... he identified problems, chiefly two I've already mentioned. He said the organization hasn't decided what form its objections will take, whether written comments during the comment period or testimony. He explained that the organization fears the state hasn't gone far enough to insure public money doesn't support religious exercises before or after an arbitrary time period and it thinks the law doesn't allow the posting of religious materials as the state suggests it does. More:
* RELIGIOUS MATERIALS ON THE WALL: The state says a private facility can post these without restriction. Smith says, to the contrary, that case law makes clear that even where secular institutions are using church facilities courts have required materials to be covered. "We'd suggest that it would be much better if there were not obvious religion iconography or literature posted all over the walls of something housing a state program."
* SEPARATING CHURCH AND STATE: "There's the issue of funds being commingled," Smith said. "There's a lot of strong language about government funds not being used to fund religion. But they go on to say they can engage in religious activities after this arbitrary cutoff point of the day. How do you make sure ABC funds are not paying for this activity? How can you say, when a teacher's entire salary is paid for by ABC, that they are not being directly supported by public money when they're still there before and after the end of the ABC day doing religious things."
Smith said one way to cure this is to form a secular and religious entity at each schools. The secular entity would handle ABC money. A separate organization would handle private money. "This gives you t4ransprecy. The regulation doesn't require anything about that. We just have concerns about how exactly they are going to police that money is not being used for religious activity."
Smith also said Americans United had a concern about a disclaimer that would be provided to parents so that they could opt out of religious activities. As written, he said it could be interpreted as telling parents the facilities have NO religious instruction when, in fact, they do and that children, depending on when they arrived and left, might be exposed to religious instruction, not to mention walls covered with religious material if that other rule stands.
"We're going to think about it and see if there's a way it can be clarified and strengthened to make sure that kind of thing does not happen."