Speaking for the majority, Justice Ginsberg said: “The legal logic was overwhelming. This court has recognized that allowing students to pray or even observe a moment of silence infringes the Constitutional Rights of students to be free from the influence of religion. With the U.S. Department of Education demonstrating that over 40% of American school children are functionally illiterate, we realized this was a much larger minority group than Muslims or Atheists. Even if reading were limited to private reading by other children, having a literate child next to an illiterate child seriously damages the self-image of an illiterate child. It delivers the message that the child is less valued than a literate child. In so doing, the action violates the child’s right to Equal Protection and Due Process as well as interfering with a zone of privacy.”
There had been speculation that the Court would dismiss the case for lack of standing. The plaintiff, Madeline Madhatter O’Dare, had originally filed suit on behalf of her grandson whom she claimed to be a pupil in a Georgia public school. It turns out that she does not actually have a grandson. Her lawyers argued that she in fact has a virtual grandson and that America’s illiterate children should not be denied justice on such a technicality. Requiring her to actually have grandchildren infringed her daughter’s Constitutional Right to abortion, O’Dare’s lawyers claimed, by indirectly discouraging family planning.
The Court spent much time in oral argument considering whether schools could educate students without using books. Ginsberg noted that an amicus brief filed by the NEA demonstrated that the latest academic research is advocating a new pedagogical approach called “education without learning.” The brief states: “Centuries of educational prejudice maintain that one needs to learn to be educated. Experts now agree that one can be a more effective member of a democratic society without learning in education.”
In a press conference, Ms. O’Dare was asked if her atheism has anything to do with this campaign to ban books from public school. “Absolutely,” she answered, “since historians agree that from the very beginning Christianity has used literacy as a weapon in spreading its ignorance. Wherever you see the spread of Christian indoctrinators [editor’s note - missionaries] you find a rise of literacy. It is time to destroy this most pernicious weapon of Christians promoting ignorance, literacy.”
The National Science Foundation also filed an amicus brief arguing that statistics indicate that a higher level of literacy among students makes them more likely to question the firmly held doctrinal orthodoxy of evolution and an old earth.”
The Court declined to rule on two related issues. It declined to rule whether commencement speakers should be prohibited from reading their speeches or using literary allusions. Lawyers for Ms. O’Dare argued that the Court should clearly strike these practices but the majority opinion, although alluding to this as a likely consequence of its decision, reserved this issue for future litigation. Also, the court noted that computers and phones which can send text messages present difficult issues. It declined to decide whether these devices constitute books for purposes of its ruling. Justice Kennedy said in his concurring opinion that he hoped by the time such a case arose technology would have mooted the issue and these devices would be fully vocally operated, making them accessible to the illiterate. E. Thomas Woodson, commenting on this aspect of the case in his blog confirmed that “with the court acknowledging the number of illiterate people in America, the free market would quickly respond with such a solution.”
The biggest surprise of the decision was that Justice Scalia joined the majority. He stated in his concurring opinion that after a thorough review of the private correspondence of Thomas Jefferson and other founders, it was the clear intention of the founders that the vast majority of Americans remain illiterate. “Since our constitutional jurisprudence must be strictly bound by the original intent of the founders, as much as this decision pains me as a person I am compelled to rule that the founders intended a republic of mostly illiterate persons.”