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A.M. No. 02-1-12-SC - IN RE: REQUEST OF JUSTICE B. P. PARDO ETC.
A.M. No. 04-5-20-SC - IN RE: AFFIDAVIT OF FRANKIE N. CALABINES ETC.
A.M. No. MTJ-04-1531 - FRANCISCO PALON, JR. v. JUDGE PLACIDO VALLARTA ETC.
A.M. No. MTJ-06-1636 - Formerly OCA IPI No. 05-1662-MTJ - JULIO B. VERZOSA v. JUDGE MANUEL E. CONTRERAS ETC.
A.M. No. MTJ-06-1655 - PASTORA DELA CRUZ, ET AL. v. JUDGE PLACIDO B. VALLARTA ETC.
A.M. No. P-06-2154 - Formerly OCA I.P.I. No. 01-1217-P - ROBERT R. PASCUA v. ATTY. ANGEL P. BELTRAN ETC.
A.M. No. RTJ-06-1979 and Formerly OCA IPI No. 05-2268-RTJ - NAPOLEON CAGAS v. JUDGE ROSARIO B. TORRECAMPO ETC.
G.R. No. 128587 - PEOPLE OF THE PHILIPPINES v. HON. PERFECTO A.S. LAGUIO, JR. ET AL.
G.R. No. 138965 - PUBLIC INTEREST CENTER, INC., ET AL. v. MAGDANGAL B. ELMA, ET AL.
G.R. No. 144950 - BLAS BALDEBRIN, ET AL. v. SANDIGANBAYAN, ET AL.
G.R. No. 147191 - SPS. MANUEL & LUISA TAN LEE, ET AL. v. HON COURT OF APPEALS, ET AL.
G.R. No. 147594 - METRO MANILA TRANSIT CORP. v. D.M. CONSORTIUM, INC.
G.R. No. 148111 - GIL JUSTALERO, ET AL. v. ZENAIDA SAN AGUSTIN-GONZALES, ET AL.
G.R. No. 148182 - URSULA MAGLENTE, ET AL. v. HON. PRISCILLA BALTAZAR-PADILLA ETC ET AL.
G.R. No. 149053 - CENTRAL SURETY & INSURANCE CO. v. PLANTERS PRODUCTS INC.
G.R. No. 149603 - ESTATE OF LIM CHING ETC. v. FLORENCIA BACALA, ET AL.
G.R. No. 150335 and G.R. NO. 152687 - ERNESTO V. YU, ET AL. v. THE ORCHARD GOLD & COUNTRY CLUB, INC, ET AL.
G.R. No. 150194 - ROBERT TAYABAN, ET AL. v. PEOPLE OF THE PHILIPPINES ET AL.
G.R. No. 150640 - BARANGAY SINDALAN, ET AL. v. COURT OF APPEALS, ET AL.
G.R. No. 150986 - CLARK DEVT. CORP. v. MONDRAGON LEISURE & RESORTS CORP., ET AL.
G.R. No. 152430 - SAMAHANG MAGSASAKA NG 53 HECTARYA ETC. v. WILFREDO MOSQUERA, ET AL.
G.R. No. 153413 - NECTARINA S. RANIEL, ET AL. v. PAUL JACHICO, ET AL.
G.R. No. 153456 - ROBERTO PADUA v. THE HON. COURT OF APPEALS, ET AL.
G.R. No. 153726 & 154014 - REPUBLIC OF THE PHILIPPINES v. DEMOCRITO MENDOZA, SR., ET AL.
G.R. No. 153874 - TITAN CONSTRUCTION CORP. v. UNI-FIELD ENTERPRISES, INC.
G.R. No. 153936 - ROSARIO M. REYES v. ALSONS DEVT. & INVESTMENT CORP., ET AL.
G.R. No. 154591 - MANILA HOTEL ENTERPRISES ASSO. ETC. v. MANILA HOTEL CORP.
G.R. No. 154765 - PEDRO T. BERCERO v. CAPITOL DEVT. CORP.
G.R. No. 154837 - ANG BRAT HUAN SONS INDUSTRIES, INC. ETC. v. COURT OF APPEALS, ET AL.
G.R. No. 154877 - JIN-JIN DELOS SANTOS v. SPS. REYNATO D. SARMIENTO ET AL.
G.R. No. 155208 - NENE LAZALITA TATING v. FELICIDAD TATING MARCELLA ET AL.
G.R. No. 155682 - BANCO FILIPINO SAVINGS & MORTGAGE BANK v. COURT OF APPEALS ET AL.
G.R. No. 156052 - SOCIAL JUSTICE SOCIETY, ET AL. v. JOSE L. ATIENZA, JR.
G.R. No. 156249 - MARIANO RIVERA, ET AL. v. EMERITO A. TURIANO, ET AL.
G.R. No. 156527 - NEMESIO M. CALIM v. THE HON. JESUS F. GUERRERO, ET AL.
G.R. No. 157202 - PLDT, INC. v. AMPARO BALBASTRO, ET AL.
G.R. No. 157593 - SPS. ALBERTO & JOCELYN AZANA v. CRISTOPHER LUMBO, ET AL.
G.R. No. 157629 - J & N SHIPPING LINES, INC. v. TECHNOMARINE CO., LTD., ET AL.
G.R. No. 157959 - HEIRS OF VICENTE REYES ETC. ET AL. v. THE HON. COURT OF APPEALS, ET AL.
G.R. No. 158253 - REPUBLIC OF THE PHILIPPINES, ETC. v. CARLITO LACAP ETC.
G.R. No. 159669 - UNITED OVERSEAS BANK PHILS. v. ROSEMOR MINING & DEVT. CORP., ET AL.
G.R. No. 160741 - HERMINIA CANDO v. SPS. AURORA OLAZO ETC.
G.R. No. 161823 - SONY COMPUTER ENTERTAINMENT, INC. v. SUPERGREEN, INC.
G.R. No. 161886 - FILIPINAS PORT SERVICES INC., ET AL. v. VICTORIANO S. GO, ET AL.
G.R. No. 162053 - ST. LUKE'S MEDICAL CENTER ETC. v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.
G.R. No. 162864 - SPS. PEBLIA ALFARO & PROSPEROUS ALFARO v. HON. COURT OF APPEALS, ET AL.
G.R. No. 162927 - MARCELINO B. AGOY, ET AL. v. COURT OF APPEALS, ET AL.
G.R. No. 163359 - THE INDUSTRIAL TECHNOLOGY ETC. v. RUFINO M. VILLANUEVA ETC.
G.R. No. 163768 - JULIUS KA WACHI, ET AL. v. DOMINIE DEL QUERO ET AL.
G.R. No. 164307 - SPS. RODELIO & ALICIA POLTAN v. BPI FAMILY SAVINGS BANK, INC., ET AL.
G.R. No. 164273 - EMMANUEL B. AZNAR v. CITIBANK, N.A.
G.R. No. 164398 - ALICIA C. MARANAN v. MANILA BANKING CORP.
G.R. No. 164547 - CGP TRANSPORTATION & SERVICES CORP. v. PCI LEASING & FINANCE INC.
G.R. No. 164582 - PILAR ESPINA, ET AL. v. HON. COURT OF APPEALS, ET AL.
G.R. No. 164819 - JERTY PASCUAL CONTRERAS ETC. v. THE HON. COURT OF APPEALS, ET AL.
G.R. No. 164893 - CONSTANCIA DULDULAO v. THE COURT OF APPEALS, ET AL.
G.R. No. 166105 - ATTY. GABRIEL B. OCTAVA v. COMELEC, ET AL.
G.R. No. 166558 - NORA BUENO PASION v. SIMPLICIO R. MELEGRITO ETC.
G.R. No. 166719 - SILANGAN TEXTILE MFG. CORP., ET AL. v. HON. AVELINO C. DEMETRIA, ET AL.
G.R. No. 167137 - ANTENOR A. ARBONIDA v. COMELEC, ET AL.
G.R. No. 167261 - ROSARIA L. PAQNG-ET v. CATHERINE MANACNES-DAO-AS ETC.
G.R. No. 167314 - LUISITO O. CUMIGAD v. COMELEC, ET AL.
G.R. No. 167512 - V. L. ENTERPRISES AND/OR FAUSTINO J. VISITACION v. HON. COURT OF APPEALS, ET AL.
G.R. No. 167714 - ROWELL INDUSTRIAL CORP. v. COURT OF APPEALS, ET AL.
G.R. No. 167760 - MANILA JOCKEY CLUB EMPLOYEES ETC. v. MANILA JOCKEY CLUB, INC.
G.R. No. 167989-93 - TEODORO M. JUMAMIL, ET AL. v. COMELEC, ET AL.
G.R. No. 168253 and G.R. NO. 172741 - MAYOR N. E. ROSAL, v. COMELEC, ET AL.
G.R. No. 168512 - ORLANDO D. GARCIA, JR., ET AL. v. RANIDA SALVADOR, ET AL.
G.R. No. 168301 - ANTONIO B. MONFORT III, ET AL. v. MA. ANTONIA M. SALVATIERRA, ET AL.
G.R. No. 168913 - ROLANDO TING v. HEIRS OF DIEGO LIRIO ETC.
G.R. No. 169116 - BPI v. SPS. IRENEO M. SANTIAGO ETC. ET AL.
G.R. No. 169204 - ADELAIDA ESCOBAR, ET AL. v. LIGAYA OLIGARIO LUNA, ET AL.
G.R. No. 169304 - The Department of Health, et al. v. Phil. Pharmawealth, Inc.
G.R. No. 169397 - Republic of the Philippines v. Restituto Sarmiento.
G.R. No. 161494 - CABALEN MGT. CO., INC., ET AL. v. JESUS P. QUIAMBAO, ET AL.
G.R. No. 169570 - RICARDO PORTUGUEZ v. GSIS FAMILY BANK, ET AL.
G.R. No. 169514 - CONFEDERATION OF SUGAR PRODUCERS ASSO., INC., ET AL. v. DEPT. OF AGRARIAN REFORMS ET AL.
G.R. No. 169596 - SUPERLINES TRANSPORTATION CO., INC. v. PNCC, ET AL.
G.R. No. 169604 - NELSON P. COLLANTES v. HON. COURT OF APPEALS, ET AL.
G.R. No. 169731 - ALFREDO BARBA, ET AL. v. HON. COURT OF APPEALS, ET AL.
G.R. No. 169890 - FELICIANO ESGUERRA, ET AL. v. VIRGINIA TRINIDAD, ET AL.
G.R. No. 169933 - SU ZHI SHAN v. PEOPLE OF THE PHILIPPINES/SOL. GEN.
G.R. No. 170346 - HEIRS OF NICOLAS JUGALBOT ETC. v. COURT OF APPEALS, ET AL.
G.R. No. 170384-85 - LORNA DISING PUNZAL v. ETSI TECHNOLOGIES, INC., ET AL.
G.R. No. 170823 - DEPT OF AGRARIAN REFORM ETC. v. OROVILLE DEVT. CORP ETC.
G.R. No. 171063 - EDUARD V. TUGADE v. COMELEC, ET AL.
G.R. No. 171354 - MARYLOU B. TOLENTINO, M.D. v. COURT OF APPEALS, ET AL.
G.R. No. 171756 - SPS. RICARDO IMBAT ETC. v. SPS. MEDARDO SOLIVEN ETC., ET AL.
G.R. No. 172278 - LYDIA R. PAGADUAN v. COMELEC, ET AL.
G.R. No. 172369 - PEOPLE OF THE PHILIPPINES v. ENRIQUE LOPEZ, ET AL.
G.R. No. 173290 - ZENAIDA M. LIMBONA v. HON. JUDGE RALPH S. LEE ET AL.
G.R. No. 173310 and G.R. NO. 173609 - ANUAR J. ABUBAKAR v. HOUSE OF REPRESENTATIVES ETC., ET AL.
G.R. No. 174551 - MAYOR SALIP A. JAINAL v. COMELEC, ET AL.

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Weaving together debates in ordinary language philosophy, epistemology, and political philosophy, Linda Zerilli, with substantial support from Arendt and Wittgenstein, convincingly argues that the profound threat to modern democracy is not relativism but the lack of a truly public space in which to share our plural perspectives, exercise political judgment, and generate the common world. Across nine dense chapters and her conclusion, Zerilli criticizes many prominent voices for misdiagnosing the problem and leading us in unpromising directions. She identifies the binaries that tend to ensnare us--objectivism v. relativism, universalism v. subjectivism, cognitivism v. noncognitivism, reason v. affect, truth v. opinion, rules v. chaos--and demonstrates how Arendt's understanding of political judgment evades them. Many of the chapters fit tightly together as a continuous argument, and others apply or extend her core message. Overall, Zerilli provides a historically grounded, intricate, and provocative argument that reorients the debate regarding political judgment.
In chapter 1, Zerilli explains that a common interpretation of the current problem for liberal Western democracies is that pluralism engenders a war of value with no "objective" or neutral standard for adjudication. The typical remedy, then, is to articulate a new standard so that disagreements can thereby be resolved. As Zerilli notes, we might claim this new standard is neutral (it is not, she assures us) or we might embrace subjectivism or ethnocentrism (and then that standard may not be widely accepted anyway). Zerilli describes this as the tension between "neo-Kantians" or cognitivists, such as Rawls and Habermas, and "affect theorists" or noncognitivists, such as Connolly and Thiele. What both views share is the notion that our everyday perspectives are distorted, the former allowing for correction by appeal to rules, the latter being incorrigible. Although Arendt has been interpreted as a "naïve" noncognitivist, Zerilli demonstrates that Arendt offers "representative thinking" and plurality itself as the means of ameliorating distortions (9). Plurality is not the problem; rather, plurality is the solution. As Zerilli explains, for Arendt the common world is not ontologically given but is achieved through sharing perspectives and taking on the perspectives of others. The world appears different to each of us and "this difference in the mode of appearance, the plurality of perspectives on the same object, is crucial to our sense of realness and thus to the common world" (29). We must have a space to share our perspectives in order to generate the common world. We must also try on various perspectives and move between perspectives in order to understand. For Arendt this movement is the hallmark of "political" thinking in the first place, a process she refers to as "representative thinking" (32, 35). Thus, only by sharing and taking on various perspectives does the world become real and comprehensible; it is the means by which we correct for the distortions of individual subjectivities--we do not appeal to some fixed standard or rule. This is what it means to exercise political judgment. In this way, we go between the horns of the aforementioned binaries, avoiding the near determinism of the cognitivists and the solipsism of the noncognitivists. The real crisis for democracy, then, is not plurality but the lack of a "variety of perspectives from which to get the world in view" (38). Given the political situation in the United States today, with different demographics occupying different "echo chambers" of news, Arendt's prescience is breathtaking. Zerilli's account demonstrates that Arendt deserves to be thought of as one of the most innovative political theorists we have.
In chapter 2, Zerilli gives us the historical background for how Arendt arrived at her unique view. The discussion looks at Kant's Critique of Judgment, which Arendt explicitly draws upon, including the affective aspects of aesthetic experience and the notion that there must be some grounds for persuading people to agree about aesthetic judgments. The positions of Hume and Locke are considered; however, Zerilli ultimately highlights Kant's resolution of the antinomy of taste. As she explains, Kant offers a kind of "indeterminate" concept that can be used to ground judgment and persuade others to see one's perspective but which does not compel the way a "determinate" concept does (69). According to Zerilli, both Wittgenstein and Arendt embrace this resolution as it "opens up the space for thinking about normativity in terms other than concepts as rules or decision procedures" (71).
Chapter 3 compares how Arendt and her contemporary Leo Strauss interpreted the crisis for liberalism. The crux of the issue involves historicism, which, as a twist on relativism, indicates that people cannot transcend the standards and opinions of their era and that no one has access to the ultimate truths (if there be such). Zerilli indicates that for Arendt, the problem is not about truth and epistemology; instead, the problem is with our assumptions that individual opinion is no part of the truth (yet following Socrates, it is) and that our goal is to discern ultimate truth anyway. As Zerilli notes, for Arendt "judging politically has as its object 'care for the world,'" not knowledge of ultimate truths (110). The goal is to create a common world through sharing perspectives and exercising judgment, all of which qualify as action and as exemplifying freedom for Arendt.
Chapter 4 continues with some of the ideas about truth from the previous chapter. It puts Arendt in conversation with continental thinkers including Heidegger and Gadamer with the goal of demonstrating that Arendt does not jettison truth entirely. Although she rejects scientism (that the standards of truth in science and logic are applicable everywhere), she believes that truths in the political realm, to allow for freedom, must admit of contingency in a manner that logic does not. Chapter 5 is largely a critique of Rawls and problematizes the ideas that within a respectful, pluralistic society we employ "public reason" and the "method of avoidance," that is, we make no comprehensive claims to truth (145). These ideas tend to limit public debate, limit the possibilities for creating change, and limit our capacity to create the common world, all things Arendt would see as damaging.
Versions of chapters 6, 7, and 8 have appeared elsewhere. Chapter 6 engages directly with feminism and the difficulties of judging cross-culturally. Zerilli mentions Okin, Nussbaum, and others who have attempted to employ a "new universalism" for this purpose; however, from an Arendtian perspective this move is flawed. The application of any "universal" criteria is, first of all, not really neutral, and second, involves subsuming a particular that is effectively logic or math--not an exercise of critical judgment at all. Chapter 7 compares Arendt's and Habermas's interpretations of the protests of 1968. The central concerns here are the definitions of politics, power, will, and the role of "principles" rather than "transcontextual moral standards" in judging events (207). Arendtian principles, which are reminiscent of Aristotelian virtues, are flexible but not inoperative, saving Arendt from accusations of irrationalism. Chapter 8 shares concerns with chapter 6 and involves judging "alien" cultures (the Zande, who believe in magic), describing the views of Winch, Wittgenstein, Rorty, and Gellner. Although it does involve judging, this chapter fits least well with the overall message of the book.
Chapter 9 identifies a problem with the "affective turn" in understanding judgment. The rigid logicality of reason is a threat to freedom, but so is an ungovernable affect. For judgment to work properly, the inclusion of affect must not exclude reason, and vice versa. Zerilli argues that affect is not necessarily irrational: "just because our affective experiences do not take propositional form does not mean that these experiences are nonconceptual" (259). Again, Kant's (and Wittgenstein's, and Arendt's) understanding of indeterminate concepts enables aesthetic or affective judging to possibly count as rational.
In the conclusion Zerilli revisits the idea that judging is not simply applying the principles given by a theory, or subsuming a particular under a universal, or implementing a given rule. It is not that easy. If we understand judging in Arendt's sense, then in order to judge we need to "recover the ordinary concept of perspective, according to which perspectives are perspectives on something--that is, they share a common object and are corrigible by other perspectives (through representative thinking)" (267). Judging involves championing our perspectives (including opinions, beliefs, values) in the public sphere, taking on the perspectives of others, and comparing and revising continuously. Judging involves admitting the limitations of our own perspective while not abandoning our own critical power to judge. Judging requires pluralism, a public space for frank conversation, and a willingness to seriously consider other perspectives and look for what is true in them. We may have pluralism; unfortunately, as Arendt feared, it seems we lack the other components that make democratic judgment possible.
Arendt is such a profound thinker, so often reaching back into the past, that her intellectual horizon can be difficult to see. Having seen that horizon, Zerilli masterfully guides the reader through a maze of difficulties and dead ends, demonstrating how much Arendt (and Wittgenstein) have to offer political philosophy today. Zerilli argues convincingly that the real threat to democracy is not pluralism. What to do about the real threat? I hope that is in her next book.
Cassie Striblen is an associate professor of philosophy at West Chester University outside of Philadelphia, PA. Her research focus is the issue of collective responsibility. She has published with the Journal of Social Philosophy and Social Theory and Practice. She is the author of Group Responsibility: A Narrative Account (2014) and has been active in the Hannah Arendt Circle. Before academia, she was a public school teacher in New Orleans, LA, and served as a US Peace Corps volunteer in Kazakhstan.
"[Zerilli] identifies the binaries that tend to ensnare us--objectivism v. relativism, universalism v. subjectivism, cognitivism v. noncognitivism, reason v. affect, truth v. opinion, rules v. chaos--and demonstrates how Arendt's understanding of political judgment evades them."

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In order to understand the transfer rules, there are new terms which need to be mastered: "covered asset," "covered asset amount," "uncompensated value," and "transfer for less than fair market value." A covered asset is defined in §3.276(a)(2) as an asset (i) that was part of the claimant's net worth, (ii) that was transferred for less than fair market value and (iii) if not transferred would have caused or partially caused the claimant's net worth to exceed the net worth limit. The covered asset amount is the amount by which a claimant's net worth would have exceeded the limit due to the covered asset alone if the uncompensated value of the covered asset had been included in net worth. §3.276(a)(3). Uncompensated value means the difference between the fair market value of an asset and the compensation which an individual receives for it. However, in the case of a trust or annuity, "uncompensated value" means the entire amount of money or monetary value of an asset transferred to the trust or in exchange for the annuity. §3.276(a)(6). Therefore, the value of retained income interests or life estate are ignored2. A transfer for less than fair market value means (i) sales, gifts or exchanges of an asset for an amount less than the fair market value of the asset or (ii) a voluntary asset transfer to, or the purchase of, any financial instrument or investment unless the claimant establishes that he or she has the ability to liquidate the entire balance of the asset for the claimant's own benefit. (If it can be so liquidated, the asset is part of net worth.) Examples of such instruments or investments specifically include annuities and trusts. §3.276(a)(5).
So how do these terms work together? Essentially, transfers of assets within the 36-month look-back period for less than fair market value are potentially subject to imposition of a transfer penalty. However, only if the transfer of the asset brought the claimant's net worth below the net worth limit (i.e., is a covered asset) is the transfer subject to penalty and then only the uncompensated amount which would have exceeded the net worth limit (i.e., the "covered asset amount") is penalized. Transfers to annuities and trusts are disfavored because the entire amount of the transfer is considered the uncompensated value, unless the claimant has the power to liquidate the transferred asset for his or her own benefit. Thus, for trusts the language of the regulation suggests that the claimant must also be the Trustee or have the power to direct the Trustee to act. It is important to note that in all cases, only the covered asset amount (amount by which the claimant's net worth exceeds the net worth limit if the uncompensated value were included in net worth) is subject to penalty. Therefore, there is seemingly no credit for the claimant for any retained interest the claimant holds in the trust or the annuity (unless the claimant has the ability to liquidate the entire balance of the trust or annuity for his or her own benefit, in which case the trust or annuity is includible in net worth). §3.276(a)(5).
There are some exceptions to the general rules explained above. In response to comments from the public regarding retirement plans which mandate a transfer to an annuity upon retirement, the VA amended the rules such that a mandatory transfer of deferred accounts to an immediate annuity pursuant to a retirement plan is not a "voluntary" asset transfer. Therefore, the transfer will not be a "covered asset" and hence not subject to penalty. Instead, the annuity will be considered a part of net worth and annuity payments will be considered to be income. §3.276(a)(5)(ii) and Supplementary Information (p. 47253).
In addition, transfers to certain trusts for certain disabled children of the veteran will also not be considered covered assets. §3.276(c)-(d). However, the exception only applies to trusts for the benefit of children whom the VA rated as incapable of self-support under §3.356, relating to children who became permanently incapable of self-support before their 18th birthday. Thus, practitioners will need to be aware of the child's status before making use of this exception. Unlike Medicaid policy which also exempts transfers to a disabled child, no direct transfer of assets to a disabled child will be an exception to the VA's transfer rules. It is also important to note that there can be no circumstances under which the income or principal of the trust can be used for the veteran, the veteran's spouse or surviving spouse.
The third exemption is that assets transferred as a result of fraud, misrepresentation, or unfair business practice related to the sale or marketing of financial products or services for purposes of establishing entitlement to VA pension will not be considered a covered asset. The claimant will likely need to provide evidence supporting the exception, including but not limited to a complaint contemporaneously filed with state, local, or federal authorities reporting the incident. However, the requirement in the proposed regulations that the claimant must provide clear and convincing evidence for the exception was dropped in the final regulations.
Finally, the regulations are drafted such that a transfer penalty is only imposed on the transfer of covered assets, defined in part as being assets included in net worth. It seems that the veteran's primary residence and personal effects (as defined in the regulations) may be freely transferrable because they are excluded from the definition of "assets" and are not part of net worth. §3.275(b). Creative planners could consider whether it makes sense to create a trust to which the primary residence is transferred and then to use the power of substitution prior to applying for VA benefits to remove cash and marketable securities from the claimant's net worth in return for the primary residence (upon transfer the power of substitution could lapse to prevent grantor trust status). At the very least, the primary residence may be able to be transferred to a trust for creditor protection and probate avoidance even if there is no ability to effectively substitute assets because there are insufficient liquid assets.
The penalty period is also calculated differently from Medicaid. The VA calculates the length of the penalty period (in months) by dividing the total covered asset amount by the monthly penalty rate and rounding the quotient down to the nearest whole number. §3.276(e). The monthly penalty rate is the maximum annual pension rate (MAPR) for a veteran in need of Aid & Attendance with one dependent that is in effect on the date of the claim, divided by 12 and rounded down to the nearest whole dollar. The MAPR for 2018 is $26,036, so the monthly penalty rate is $2,169.
In another difference from Medicaid, there is a cap on the penalty period of five (5) years. Thus, a transfer of covered assets in the amount of $130,140 or more on or after October 18, 2018 through the end of 2018 will incur a five-year penalty period. However, the penalty period begins on the first day of the month that follows the date of the transfer, not after the date of application as in Medicaid. Importantly, if multiple transfers are made, the penalty period does not start until after the date of the last transfer. §3.276(e).
A few observations about the cap and the start date of the penalty period: For large transfers that would otherwise trigger a penalty period in excess of three years, careful planning will prevent the imposition of any penalty period by simply delaying application for Aid & Attendance until after the 36-month period has passed. (Traditional half-a-loaf planning will be of use here because it makes provision to preserve sufficient assets to ride out the penalty period.) Since the transfer at this point is beyond the 36-month look-back period, the transfer is ignored. However, such careful planning can be easily undone if the client makes further transfers of covered assets, pushing back the beginning date of the penalty period to the date of the last transfer. Practitioners should therefore engage in client education to make sure clients make no further asset transfers after the planned transfer. Additionally, best practices may indicate that the initial asset transfer reduce the client's assets below the net worth limit so further asset transfers are not transfers of covered assets.
Unlike Medicaid, the penalty period is only recalculated under certain circumstances: if the original calculation is erroneous or if the VA receives evidence that some or all of the covered assets were returned to the claimant before the date of claim or within 60 days after the VA's notice to the claimant of the VA's decision concerning the penalty period. However, in order for this exception to apply, the VA must receive the evidence of return not later than 90 days after the date of the notice to the claimant concerning the penalty period. §3.276(e)(5). As a result of the short time period for cure, practitioners and clients must be vigilant in reviewing notices from the VA and acting swiftly to make any cures if necessary.
The new transfer rules are a sea change for many practitioners. The effective date rules provide that transfers made prior to the effective date (October 18, 2018) will be ignored, even if application is made after the effective date. §3.276(b). Thus, for clients who engaged in long-term planning (or even crisis planning) prior to the effective date, the transfers will not be part of the equation. The date of application will control which set of rules apply (other than with respect to a transfer prior to October 18, 2018). For Aid & Attendance applications that are pending on the effective date, if the claimant's net worth is below the new net worth limit, such claims will not be denied. However, if the claimant's net worth is above the limit, an administrative determination will still be required under the old rules. Thus, since the old rules of thumb regarding net worth would have created an asset limit under the new net worth limit, only current claimants whose net worth is changed as a result of a changed characterization of an annuity or other financial instrument are likely to face a possible denial. Claimants who are receiving pension on the effective date will continue to receive pension, even if their net worth exceeds the net worth limit, unless the claimant loses pension for another reason.
In the next installment of this series, I am going to talk about the expanded medical deductions which may be used to reduce a claimant's income for net worth purposes.
1Unless otherwise noted, section references are to 38 C.F.R., Part 3).
2The Supplementary Information specifically reserves the treatment of life estates to future rulemaking. It is thus unclear how the VA would value a life estate in property other than a primary residence or how it would treat the sale of a primary residence in which the claimant had a life estate.

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James Lane, a prisoner in the custody of the State of Oklahoma proceeding pro se, seeks to appeal the district court's order dismissing his complaint pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1915A.(1) In his complaint, Mr. Lane alleged under 42 U.S.C. § 1983 that the Oklahoma Supreme Court and the Oklahoma County District Court violated his Eighth and Fourteenth Amendment rights in the course of adjudicating an action that he initially filed in the Oklahoma County court. In particular, Mr. Lane maintained, the Oklahoma County court failed to issue a default judgment to which he was entitled and the Oklahoma Supreme Court failed to issue a writ of mandamus directing the Oklahoma County court to enter the judgment. Mr. Lane sought "[p]reliminary and permanent injunctions enjoining and restraining defendants from further interference and or delaying [his] exercise of his [constitutional rights]" and a declaratory judgment that the Oklahoma Supreme Court's ruling is "null and void." Rec. doc. 2 at 8-9 (Plaintiff's Complaint for Injunctive and Declaratory Relief, filed Jan. 12, 2000).
In recommending dismissal pursuant to 28 U.S.C. § 1915A, the magistrate judge reasoned that the federal courts lacked the authority to grant Mr. Lane the requested relief. He noted that "'federal courts hold no supervisory power over state judicial proceedings'" and are, therefore, without authority to direct state courts in the performance of their duties. Rec. doc. 7 at 2-3 (Report and Recommendation, filed Feb. 17, 2000) (quoting Fero v. Kerby, 39 F.3d 1462, 1480 (10th Cir. 1994)). Additionally, the magistrate noted, the federal district court lacked authority "to review final judgments of a state court in judicial proceedings." Id. at 3 (quoting Van Sickle v. Holloway, 791 F.2d 1431, 1436 n.5 (10th Cir. 1986). The district court adopted the magistrate's report and recommendation and dismissed Mr. Lane's complaint. See Rec. doc. 10 at 1 (Order, filed Mar. 3, 2000) (stating that Mr. Lane's complaint "ask[ed] this Court to sit in review of the District and Supreme Courts of the State of Oklahoma" and that such review "is not within the power or jurisdiction of this Court, . . . no matter how many citations to the United States Constitution or laws plaintiff argues").
Under 28 U.S.C. § 1915A, the district court must dismiss a prisoner's complaint against a governmental entity or officer if the complaint "seeks monetary relief from a defendant who is immune from such relief" or "is frivolous, malicious, or fails to state a claim upon which relief may be granted." Upon review of Mr. Lane's complaint, we conclude that it fails to state a claim upon which relief may be granted.
As the magistrate judge observed, federal district courts lack authority to review final judgments of state courts in judicial proceedings. Van Sickle, 791 F.2d at 1436 (citing District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983)). To be sure, as Mr. Lane notes, there are limited instances in which a federal district court may intervene in a state court proceeding. On some occasions, when the state proceeding violates a party's constitutional rights and when the party's federal court constitutional challenge is not inextricably intertwined with the state court decision, such federal court intervention is allowed. See Van Sickle, 791 F.2d at 1436 (quoting Feldman, 460 U.S. at 486-87)); see also Smith v. Phillips, 455 U.S. 209, 220 (1982) (stating, "[f]ederal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension"); Harris v. Champion, 15 F.3d 1538, 1557 (10th Cir. 1994) (holding that an inordinate delay in a state court's adjudication of a defendant's direct criminal appeal may give rise to a due process violation). See generally Russillo v. Scarborough, 935 F.2d 1167, 1172 n.4 (10th Cir. 1991) (noting that "the question of federal courts' authority to command the actions of state courts is a sensitive one" and citing contrasting decisions).
Here, although Mr Lane has alleged that the state court proceedings violated his constitutional rights, his constitutional challenge is inextricably intertwined with the state court decisions. Accordingly, the federal district court properly concluded that it lacked authority to grant Mr. Lane the relief he requested. (2) We, therefore, conclude that Mr. Lane's complaint fails to state a claim upon which relief can be granted, and we DISMISS Mr. Lane's appeal. See 28 U.S.C. § 1915(e)(2)(B)(ii). Our dismissal and the district court's dismissal each count as "prior occasions" (or "strikes") under 28 U.S.C. § 1915(g).
1. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore, ordered submitted without oral argument.
2. We note in passing that, although Mr. Lane maintains that the Oklahoma Supreme Court improperly denied his mandamus petition, mandamus is an extraordinary remedy that may only be granted if there is no other adequate remedy. See State ex rel. Macy v. Freeman, 814 P.2d 147, 153 (Okla. 1991). Here, there is no indication that a direct appeal following a final judgment in the Oklahoma County District Court case would constitute an inadequate remedy for the alleged errors.


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Comment: New York State's Labor law protects construction workers from height- (gravity-) related accidents.
In this case, the injured accident victim/worker successfully asked the Court (made a motion) for summary judgment in his favor, on the issue of liability, for his Labor Law claim.
Not the usual type of fact pattern here: the construction worker was standing on a boat at the time of the accident, working on building a bridge. He was helping lower a machine some five or six feet from a pier onto the boat as part of the bridge construction. This difference in height gave the Court a reason to apply the Labor Law to protect this worker and grant summary judgment to him on the issue of liability for his injury claim.
In a claim, inter alia, to recover damages for personal injuries, the defendant appeals from an order of the Court of Claims (Lack, J.), dated June 30, 2010, which denied its motion for summary judgment dismissing the claim and granted the claimant's cross motion for summary judgment on the issue of liability pursuant to Labor Law Sec. 240(1).
ORDERED that the order is modified, on the law and the facts, by deleting the provisions thereof denying those branches of the defendant's motion which were for summary judgment dismissing so much of the claim as alleged violations of Labor Law Secs. 200 and 241(6) and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.
The claimant, a construction worker employed on the State of New York's Wantagh Bridge project, was assigned by his supervisor to build a rain shelter over other workers with the assistance of two coworkers. To do so, the claimant and his coworkers needed to move a portable generator weighing 150 to 200 pounds from one bridge pier to another. Although there were cranes on site, none were available to move the generator. Instead, the workers' supervisor told them to move the generator using a tugboat. The claimant's coworkers lifted the generator to the lip of the pier and the claimant, who was standing on the boat, attempted to steady it from the deck of the boat, approximately 5-1/2 to 6 feet below. However, before the claimant's coworker could get down to help him lift the generator to the boat's deck, the generator slipped toward the claimant, caught on his tool belt, and pulled him to the deck, injuring his back.
The claimant brought this claim against the State of New York, the owner of the site, alleging violations of Labor Law Secs. 200, 240(1), and 241(6). The State moved for summary judgment dismissing the claim, and the claimant cross‑moved for summary judgment on the issue of liability pursuant to Labor Law Sec. 240(1). The Supreme Court granted the claimant's cross motion and denied the State's motion in its entirety. We modify.
"[n]ot every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law Sec. 240(1). Rather, liability is contingent upon the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein."
(Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267, 727 N.Y.S.2d 37, 750 N.E.2d 1085; see Gutman v. City of New York, 78 A.D.3d 886, 887, 911 N.Y.S.2d 458). Thus, injuries arising from "routine workplace risks" rather than from elevation differentials will not fall within the statute's protection (Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 603, 895 N.Y.S.2d 279, 922 N.E.2d 865; see Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513, 577 N.Y.S.2d 219, 583 N.E.2d 932). Instead, "the single decisive question is whether the claimant's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v. New York Stock Exch., Inc., 13 N.Y.3d at 603, 895 N.Y.S.2d 279, 922 N.E.2d 865; see Gasques v. State of New York, 59 A.D.3d 666, 667, 873 N.Y.S.2d 717, affd. 15 N.Y.3d 869, 910 N.Y.S.2d 415, 937 N.E.2d 79).
Here, despite the State's arguments to the contrary, the 5-/2 or 6 foot elevation between the pier and the deck of the boat that the claimant was standing on created a sufficient elevation‑related risk to trigger Labor Law Sec. 240(1) liability (compare Outar v. City of New York, 286 A.D.2d 671, 672, 730 N.Y.S.2d 138, affd. 5 N.Y.3d 731, 799 N.Y.S.2d 770, 832 N.E.2d 1186). The State's arguments that this was a routine hazard typically associated with a construction site and that the height of the generator above the claimant was de minimis are unavailing (see Runner v. New York Stock Exch., Inc., 13 N.Y.3d at 602-603, 895 N.Y.S.2d 279, 922 N.E.2d 865; Pritchard v. Tully Constr. Co., Inc., 82 A.D.3d 730, 918 N.Y.S.2d 154; Mendoza v. Bayridge Parkway Assoc., LLC, 38 A.D.3d 505, 506, 831 N.Y.S.2d 485; Salinas v. Barney Skanska Constr. Co., 2 A.D.3d 619, 620-621, 769 N.Y.S.2d 559; but see Gutman v. City of New York, 78 A.D.3d at 886-887, 911 N.Y.S.2d 458; Garcia v. Edgewater Dev. Co., 61 A.D.3d 924, 925, 878 N.Y.S.2d 134; Ienco v. RFD Second Ave., LLC, 41 A.D.3d 537, 538_539, 840 N.Y.S.2d 792). Accordingly, the court properly granted the claimant's cross motion for summary judgment on the issue of liability pursuant to Labor Law Sec. 240(1).
That branch of the State's motion which was for summary judgment dismissing so much of the claim as alleged a violation of Labor Law Sec. 241(6) should have been granted, as the specific Industrial Code provision upon which the claimant predicated this claim has no application under the facts presented.
Labor Law Sec. 241(6) "imposes a nondelegable duty of reasonable care upon owners and contractors 'to provide reasonable and adequate protection and safety' to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" (Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 348, 670 N.Y.S.2d 816, 693 N.E.2d 1068, quoting Labor Law Sec. 241). In so doing, owners are obliged to comply with any applicable regulations of the Industrial Code and may be held liable for a violation of a provision "mandating compliance with concrete specifications" (La Veglia v. St. Francis Hosp., 78 A.D.3d at 1125-1126, 912 N.Y.S.2d 611, quoting Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d at 505, 601 N.Y.S.2d 49, 618 N.E.2d 82; see Cun-En Lin v. Holy Family Monuments, 18 A.D.3d at 802, 796 N.Y.S.2d 684; Misicki v. Caradonna, 12 N.Y.3d 511, 515, 882 N.Y.S.2d 375, 909 N.E.2d 1213; Miano v. Skyline New Homes Corp., 37 A.D.3d 563, 565, 830 N.Y.S.2d 257; Labor Law Sec. 241). Because this section imposes "a nondelegable duty on property owners, [a] plaintiff need not show that [the] defendant[ ] exercised supervision or control over the work site in order to establish a right of recovery under section 241(6)" (St. Louis v. Town of N. Elba, 16 N.Y.3d 411, 413, 923 N.Y.S.2d 391, 947 N.E.2d 1169; see Romero v. J & S Simcha, Inc., 39 A.D.3d 838, 839, 835 N.Y.S.2d 306).
Here, the State contends that the section relied upon by the claimant, namely, 12 NYCRR 23-1.7(f), is not applicable to the facts of this case and therefore cannot serve as the basis for liability under Labor Law Sec. 241(6). We agree.
Whether a regulation applies to a particular condition or circumstance is a question of law for the court (see Spence v. Island Estates at Mt. Sinai II, LLC, 79 A.D.3d 936, 938, 914 N.Y.S.2d 203).
"Stairways, ramps or runways shall be provided as the means of access to working levels above or below ground except where the nature or the progress of the work prevents their installation in which case ladders or other safe means of access shall be provided."
Here, the tugboat that the plaintiff was standing in was not a working level below ground requiring a stairway, ramp, or runway under the regulation (see Torkel v. NYU Hosps. Ctr., 63 A.D.3d 587, 883 N.Y.S.2d 8; Lavore v. Kir Munsey Park 020, LLC, 40 A.D.3d 711, 835 N.Y.S.2d 708; Amantia v. Barden & Robeson Corp., 38 A.D.3d 1167, 1169, 833 N.Y.S.2d 784; Farrell v. Blue Circle Cement, Inc., 13 A.D.3d 1178, 787 N.Y.S.2d 773).
Labor Law Sec. Sec. 200 "codifies the common‑law duty imposed upon an owner or general contractor to provide construction and demolition workers with a safe place to work" (La Veglia v. St. Francis Hosp., 78 A.D.3d at 1125, 912 N.Y.S.2d 611; see Aguilera v. Pistilli Constr. & Dev. Corp., 63 A.D.3d 763, 764, 882 N.Y.S.2d 148). Where, as here, a claimant's Labor Law Sec. 200 claim is premised upon "alleged ... dangers in the methods ... of the work" (Ortega v. Puccia, 57 A.D.3d 54, 61, 866 N.Y.S.2d 323), an owner or general contractor will be held liable only where it "had the authority to supervise or control the performance of the work" (Austin v. Consolidated Edison, Inc., 79 A.D.3d 682, 683-684, 913 N.Y.S.2d 684 [internal quotation marks omitted]; see La Veglia v. St. Francis Hosp., 78 A.D.3d at 1125, 912 N.Y.S.2d 611; Erickson v. Cross Ready Mix, Inc., 75 A.D.3d 519, 522, 906 N.Y.S.2d 284). However, " '[t]he right to generally supervise the work, stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law Sec. 200 or for common‑law negligence' " (Austin v. Consolidated Edison, Inc., 79 A.D.3d at 684, 913 N.Y.S.2d 684, quoting Gasques v. State of New York, 59 A.D.3d at 668, 873 N.Y.S.2d 717; see La Veglia v. St. Francis Hosp., 78 A.D.3d at 1125, 912 N.Y.S.2d 611).
Here, the claimant testified at his deposition, as did his coworker, that the workers received their instructions from a contractor's foreman and that the State's inspectors primarily monitored the site for quality control. The State's engineer in charge confirmed that, although the State had the power to stop work due to safety risks, his primary role, and that of the inspectors, was to ensure that work was performed in accordance with project specifications and to monitor for quality control. Since the State carried its prima facie burden of demonstrating that it lacked sufficient authority to supervise or control the work and the claimant did not raise a triable issue of fact, the Supreme Court erred in denying that branch of the State's motion which was for summary judgment dismissing so much of the claim as alleged a violation of Labor Law Sec. 200 (see Gurung v. Arnav Retirement Trust, 79 A.D.3d 969, 970, 915 N.Y.S.2d 97; Austin v. Consolidated Edison, Inc., 79 A.D.3d at 684, 913 N.Y.S.2d 684; La Veglia v. St. Francis Hosp., 78 A.D.3d at 1125, 912 N.Y.S.2d 611; Erickson v. Cross Ready Mix, Inc., 75 A.D.3d at 522-523, 906 N.Y.S.2d 284; Delahaye v. Saint Anns School, 40 A.D.3d 679, 684, 836 N.Y.S.2d 233).

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Appellant Epperson, an Arkansas public school teacher, brought this action for declaratory and injunctive relief challenging the constitutionality of Arkansas' "anti-evolution" statute. That statute makes it unlawful for a teacher in any state supported school or university to teach or to use a textbook that teaches "that mankind ascended or descended from a lower order of animals." The State Chancery Court held the statute an abridgment of free speech violating the First and Fourteenth Amendments. The State Supreme Court, expressing no opinion as to whether the statute prohibits "explanation" of the theory or only teaching that the theory is true, reversed the Chancery Court. In a two-sentence opinion, it sustained the statute as within the State's power to specify the public school curriculum.
Held: The statute violates the Fourteenth Amendment, which embraces the First Amendment's prohibition of state laws respecting an establishment of religion. Pp. 393 U. S. 102-109.
(a) The Court does not decide whether the statute is unconstitutionally vague, since, whether it is construed to prohibit explaining the Darwinian theory or teaching that it is true, the law conflicts with the Establishment Clause. Pp. 393 U. S. 102-103.
(b) The sole reason for the Arkansas law is that a particular religious group considers the evolution theory to conflict with the account of the origin of man set forth in the Book of Genesis. Pp. 393 U. S. 103, 393 U. S. 107-109.
(c) The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion. Pp. 393 U. S. 103-107.
(d) A State's right to prescribe the public school curriculum does not include the right to prohibit teaching a scientific theory or doctrine for reasons that run counter to the principles of the First Amendment. P. 393 U. S. 107.
(e) The Arkansas law is not a manifestation of religious neutrality. P. 393 U. S. 109.
The present case concerns the teaching of biology in a high school in Little Rock. According to the testimony, until the events here in litigation, the official textbook furnished for the high school biology course did not have a section on the Darwinian Theory. Then, for the academic year 1965-1966, the school administration, on recommendation of the teachers of biology in the school system, adopted and prescribed a textbook which contained a chapter setting forth "the theory about the origin . . . of man from a lower form of animal."
Susan Epperson, a young woman who graduated from Arkansas' school system and then obtained her master's degree in zoology at the University of Illinois, was employed by the Little Rock school system in the fall of 1964 to teach 10th grade biology at Central High School. At the start of the next academic year, 1965, she was confronted by the new textbook (which one surmises from the record was not unwelcome to her). She faced at least a literal dilemma because she was supposed to use the new textbook for classroom instruction, and presumably to teach the statutorily condemned chapter; but to do so would be a criminal offense, and subject her to dismissal.
She instituted the present action in the Chancery Court of the State, seeking a declaration that the Arkansas statute is void and enjoining the State and the defendant officials of the Little Rock school system from dismissing her for violation of the statute's provisions. H. H. Blanchard, a parent of children attending the public schools, intervened in support of the action.
it held, was an unconstitutional and void restraint upon the freedom of speech guaranteed by the Constitution.
On appeal, the Supreme Court of Arkansas reversed. [Footnote 6] Its two-sentence opinion is set forth in the margin. [Footnote 7] It sustained the statute as an exercise of the State's power to specify the curriculum in public schools. It did not address itself to the competing constitutional considerations.
under its statute. It is possible that the statute is presently more of a curiosity than a vital fact of life in these States. [Footnote 9] Nevertheless, the present case was brought, the appeal as of right is properly here, and it is our duty to decide the issues presented.
At the outset, it is urged upon us that the challenged statute is vague and uncertain, and therefore within the condemnation of the Due Process Clause of the Fourteenth Amendment. The contention that the Act is vague and uncertain is supported by language in the brief opinion of Arkansas' Supreme Court. That court, perhaps reflecting the discomfort which the statute's quixotic prohibition necessarily engenders in the modern mind, [Footnote 10] stated that it "expresses no opinion" as to whether the Act prohibits "explanation" of the theory of evolution or merely forbids "teaching that the theory is true." Regardless of this uncertainty, the court held that the statute is constitutional.
"If Mrs. Epperson would tell her students that 'Here is Darwin's theory, that man ascended or descended from a lower form of being,' then I think she would be, under this statute, liable for prosecution."
The antecedents of today's decision are many, and unmistakable. They are rooted in the foundation soil of our Nation. They are fundamental to freedom.
As early as 1872, this Court said: "The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect." Watson v. Jones, 13 Wall. 679, 80 U. S. 728. This has been the interpretation of the great First Amendment which this Court has applied in the many and subtle problems which the ferment of our national life has presented for decision within the Amendment's broad command.
Court said in Keyishian v. Board of Regents, the First Amendment "does not tolerate laws that cast a pall of orthodoxy over the classroom." 385 U. S. 385 U.S. 589, 385 U. S. 603 (1967).
The earliest cases in this Court on the subject of the impact of constitutional guarantees upon the classroom were decided before the Court expressly applied the specific prohibitions of the First Amendment to the States. But, as early as 1923, the Court did not hesitate to condemn under the Due Process Clause "arbitrary" restrictions upon the freedom of teachers to teach and of students to learn. In that year, the Court, in an opinion by Justice McReynolds, held unconstitutional an Act of the State of Nebraska making it a crime to teach any subject in any language other than English to pupils who had not passed the eighth grade. [Footnote 14] The State's purpose in enacting the law was to promote civic cohesiveness by encouraging the learning of English and to combat the "baneful effect" of permitting foreigners to rear and educate their children in the language of the parents' native land. The Court recognized these purposes, and it acknowledged the State's power to prescribe the school curriculum, but it held that these were not adequate to support the restriction upon the liberty of teacher and pupil. The challenged statute, it held, unconstitutionally interfered with the right of the individual, guaranteed by the Due Process Clause, to engage in any of the common occupations of life and to acquire useful knowledge. Meyer v. Nebraska, 262 U. S. 390 (1923). See also Bartels v. Iowa, 262 U. S. 404 (1923).
in Meyer furnishes, nor need we explore the implications of that decision in terms of the justiciability of the multitude of controversies that beset our campuses today. Today's problem is capable of resolution in the narrower terms of the First Amendment's prohibition of laws respecting an establishment of religion or prohibiting the free exercise thereof.
There is and can be no doubt that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma. In Everson v. Board of Education, this Court, in upholding a state law to provide free bus service to school children, including those attending parochial schools, said: "Neither [a] State nor the Federal Government can pass laws which aid one religion, aid all religions, or prefer one religion over another." 330 U. S. 1, 330 U. S. 15 (1947).
"[W]hat are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution."
These precedents inevitably determine the result in the present case. The State's undoubted right to prescribe the curriculum for its public schools does not carry with it the right to prohibit, on pain of criminal penalty, the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that violate the First Amendment. It is much too late to argue that the State may impose upon the teachers in its schools any conditions that it chooses, however restrictive they may be of constitutional guarantees. Keyishian v. Board of Regents, 385 U. S. 589, 385 U. S. 605-606 (1967).
lower order of animals. [Footnote 17]"
Perhaps the sensational publicity attendant upon the Scopes trial induced Arkansas to adopt less explicit language. [Footnote 18] It eliminated Tennessee's reference to "the story of the Divine Creation of man" as taught in the Bible, but there is no doubt that the motivation for the law was the same: to suppress the teaching of a theory which, it was thought, "denied" the divine creation of man.
Arkansas' law cannot be defended as an act of religious neutrality. Arkansas did not seek to excise from the curricula of its schools and universities all discussion of the origin of man. The law's effort was confined to an attempt to blot out a particular theory because of its supposed conflict with the Biblical account, literally read. Plainly, the law is contrary to the mandate of the First, and in violation of the Fourteenth, Amendments to the Constitution.
Chapter 27, Tenn. Acts 1925; Tenn.Code Ann. § 49-1922 (1966 Repl. Vol.).
Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (1927). The Tennessee court, however, reversed Scopes' conviction on the ground that the jury, and not the judge, should have assessed the fine of $100. Since Scopes was no longer in the State's employ, it saw "nothing to be gained by prolonging the life of this bizarre case." It directed that a nolle prosequi be entered, in the interests of "the peace and dignity of the state." 154 Tenn. at 121, 289 S.W. at 367.
"§ 80-1627. -- Doctrine of ascent or descent of man from lower order of animals prohibited. -- It shall be unlawful for any teacher or other instructor in any University, College, Normal, Public School or other institution of the State, which is supported in whole or in part from public funds derived by State and local taxation to teach the theory or doctrine that mankind ascended or descended from a lower order of animals and also it shall be unlawful for any teacher, textbook commission, or other authority exercising the power to select textbooks for above mentioned educational institutions to adopt or use in any such institution a textbook that teaches the doctrine or theory that mankind descended or ascended from a lower order of animals."
"§ 80-1628. -- Teaching doctrine or adopting textbook mentioning doctrine -- Penalties -- Positions to be vacated. -- Any teacher or other instructor or textbook commissioner who is found guilty of violation of this act by teaching the theory or doctrine mentioned in section 1 hereof, or by using, or adopting any such textbooks in any such educational institution shall be guilty of a misdemeanor and upon conviction shall be fined not exceeding five hundred dollars, and upon conviction shall vacate the position thus held in any educational institutions of the character above mentioned or any commission of which he may be a member."
The opinion of the Chancery Court is not officially reported.
The Chancery Court analyzed the holding of its sister State of Tennessee in the Scopes case sustaining Tennessee's similar statute. It refused to follow Tennessee's 1927 example. It declined to confine the judicial horizon to a view of the law as merely a direction by the State as employer to its employees. This sort of astigmatism, it held, would ignore overriding constitutional values, and "should not be followed," and it proceeded to confront the substance of the law and its effect.
242 Ark. 922, 416 S.W.2d 322 (1967).
"Per Curiam. Upon the principal issue, that of constitutionality, the court holds that Initiated Measure No. 1 of 1928, Ark.Stat.Ann. § 80-1627 and § 80-1628 (Repl.1960), is a valid exercise of the state's power to specify the curriculum in its public schools. The court expresses no opinion on the question whether the Act prohibits any explanation of the theory of evolution or merely prohibits teaching that the theory is true; the answer not being necessary to a decision in the case, and the issue not having been raised."
"The decree is reversed, and the cause dismissed."
"Ward, J., concurs. Brown, J., dissents."
"Paul Ward, Justice, concurring. I agree with the first sentence in the majority opinion."
"To my mind, the rest of the opinion beclouds the clear announcement made in the first sentence."
Miss.Code Ann. §§ 6798, 6799 (1942). Ark.Stat.Ann. §§ 80-1627, 80-1628 (1960 Repl. Vol.). The Tennessee law was repealed in 1967. Oklahoma enacted an anti-evolution law, but it was repealed in 1926. The Florida and Texas Legislatures, in the period between 1921 and 1929, adopted resolutions against teaching the doctrine of evolution. In all, during that period, bills to this effect were introduced in 20 States. American Civil Liberties Union (ACLU), The Gag on Teaching 8 (2d ed., 1937).
"I understand that the States of Tennessee and Mississippi both continue to teach that the earth is round and that the revolution on its axis brings the day and night, in spite of all opposition."
The Story of My Life 247 (1932).
"exhibiting a kind of phylogenetic snobbery [which led them] to think that Darwin had libeled the [human] race by discovering simian, rather than seraphic, ancestors."
In Scopes v. State, 154 Tenn. 105, 126, 289 S.W. 363, 369 (1927), Judge Chambliss, concurring, referred to the defense contention that Tennessee's anti-evolution law gives a "preference" to "religious establishments which have as one of their tenets or dogmas the instantaneous creation of man."
Everson v. Board of Education, 330 U. S. 1, 330 U. S. 18 (1947); McCollum v. Board of Education, 333 U. S. 203 (1948); Zorach v. Clauson, 343 U. S. 306, 343 U. S. 313-314 (1952); Fowler v. Rhode Island, 345 U. S. 67 (1953); Torcaso v. Watkins, 367 U. S. 488, 367 U. S. 495 (1961).
See the discussion in Developments in The Law -- Academic Freedom, 81 Harv.L.Rev. 1045, 1051-1055 (1968).
The case involved a conviction for teaching "the subject of reading in the German language" to a child of 10 years.
"involves an effort to prevent (by censorship) or punish the presentation of intellectually significant matter which contradicts accepted social, moral or religious ideas."
Leflar, Legal Liability for the Exercise of Free Speech, 10 Ark.L.Rev. 155, 158 (1956). See also R. Hofstadter & W. Metzger, The Development of Academic Freedom in the United States 320-366 (1955) (passim); H. Beale, A History of Freedom of Teaching in American Schools 202-207 (1941); Emerson & Haber, The Scopes Case in Modern Dress, 27 U.Chi.L.Rev. 522 (1960); Waller, The Constitutionality of the Tennessee Anti-Evolution Act, 35 Yale L.J.191 (1925) (passim); ACLU, The Gag on Teaching 7 (2d ed., 1937); J. Scopes & J. Presley, Center of the Storm 45-53 (1967).
"THE BIBLE OR ATHEISM, WHICH?"
"All atheists favor evolution. If you agree with atheism, vote against Act No. 1. If you agree with the Bible, vote for Act No. 1. . . . Shall conscientious church members be forced to pay taxes to support teachers to teach evolution which will undermine the faith of their children? The Gazette said Russian Bolshevists laughed at Tennessee. True, and that sort will laugh at Arkansas. Who cares? Vote FOR ACT No. 1."
The Arkansas Gazette, Little Rock, Nov. 4, 1928, p. 12, cols. 4-5.
"The cosmogony taught by [evolution] runs contrary to that of Moses and Jesus, and, as such, is nothing, if anything at all, but atheism. . . . Now let the mothers and fathers of our state that are trying to raise their children in the Christian faith arise in their might and vote for this anti-evolution bill that will take it out of our tax-supported schools. When they have saved the children, they have saved the state."
Arkansas' law was adopted by popular initiative in 1928, three years after Tennessee's law was enacted and one year after the Tennessee Supreme Court's decision in the Scopes case, supra.
In its brief, the State says that the Arkansas statute was passed with the holding of the Scopes case in mind. Brief for Appellee 1.
should it remain on the books for the next century. Now, nearly 40 years after the law has slumbered on the books as though dead, a teacher, alleging fear that the State might arouse from its lethargy and try to punish her, has asked for a declaratory judgment holding the law unconstitutional. She was subsequently joined by a parent who alleged his interest in seeing that his two then school-age sons "be informed of all scientific theories and hypotheses. . . ." But whether this Arkansas teacher is still a teacher, fearful of punishment under the Act, we do not know. It may be, as has been published in the daily press, that she has long since given up her job as a teacher and moved to a distant city, thereby escaping the dangers she had imagined might befall her under this lifeless Arkansas Act. And there is not one iota of concrete evidence to show that the parent-intervenor's sons have not been or will not be taught about evolution. The textbook adopted for use in biology classes in Little Rock includes an entire chapter dealing with evolution. There is no evidence that this chapter is not being freely taught in the schools that use the textbook, and no evidence that the intervenor's sons, who were 15 and 17 years old when this suit was brought three years ago, are still in high school, or yet to take biology. Unfortunately, however, the State's languid interest in the case has not prompted it to keep this Court informed concerning facts that might easily justify dismissal of this alleged lawsuit as moot or as lacking the qualities of a genuine case or controversy.
"Upon the principal issue, that of constitutionality, the court holds that Initiated Measure No. 1 of 1928, Ark.Stat.Ann. § 81627 and § 81628 (Repl.1960), is a valid exercise of the state's power to specify the curriculum in its public schools. The court expresses no opinion on the question whether the Act prohibits any explanation of the theory of evolution or merely prohibits teaching that the theory is true, the answer not being necessary to a decision in the case and the issue not having been raised."
Arkansas has deliberately refused to give its statute that meaning, we should not presume to do so.
It seems to me that, in this situation, the statute is too vague for us to strike it down on any ground but that: vagueness. Under this statute, as construed by the Arkansas Supreme Court, a teacher cannot know whether he is forbidden to mention Darwin's theory at all or only free to discuss it as long as he refrains from contending that it is true. It is an established rule that a statute which leaves an ordinary man so doubtful about its meaning that he cannot know when he has violated it denies him the first essential of due process. See, e.g., Connally v. General Construction Co., 269 U. S. 385, 269 U. S. 391 (1926). Holding the statute too vague to enforce would not only follow longstanding constitutional precedents, but it would avoid having this Court take unto itself the duty of a State's highest court to interpret and mark the boundaries of the State's laws. And, more important, it would not place this Court in the unenviable position of violating the principle of leaving the States absolutely free to choose their own curriculums for their own schools so long as their action does not palpably conflict with a clear constitutional command.
The Court, not content to strike down this Arkansas Act on the unchallengeable ground of its plain vagueness, chooses rather to invalidate it as a violation of the Establishment of Religion Clause of the First Amendment. I would not decide this case on such a sweeping ground for the following reasons, among others.
"there can be no doubt that Arkansas has sought to prevent its teachers from discussing the theory of evolution because it is contrary to the belief of some that the Book of Genesis must be the exclusive source of doctrine as to the origin of man."
subject from its schools; there is no reason I can imagine why a State is without power to withdraw from its curriculum any subject deemed too emotional and controversial for its public schools. And this Court has consistently held that it is not for us to invalidate a statute because of our views that the "motives" behind its passage were improper; it is simply too difficult to determine what those motives were. See, e.g., United States v. O'Brien, 391 U. S. 367, 391 U. S. 382-383 (1968).
2. A second question that arises for me is whether this Court's decision forbidding a State to exclude the subject of evolution from its schools infringes the religious freedom of those who consider evolution an anti-religious doctrine. If the theory is considered anti-religious, as the Court indicates, how can the State be bound by the Federal Constitution to permit its teachers to advocate such an "anti-religious" doctrine to school children? The very cases cited by the Court as supporting its conclusion hold that the State must be neutral, not favoring one religious or anti-religious view over another. The Darwinian theory is said to challenge the Bible's story of creation; so, too, have some of those who believe in the Bible, along with many others, challenged the Darwinian theory. Since there is no indication that the literal Biblical doctrine of the origin of man is included in the curriculum of Arkansas schools, does not the removal of the subject of evolution leave the State in a neutral position toward these supposedly competing religious and anti-religious doctrines? Unless this Court is prepared simply to write off as pure nonsense the views of those who consider evolution an anti-religious doctrine, then this issue presents problems under the Establishment Clause far more troublesome than are discussed in the Court's opinion.
political, or religious subjects that the school's managers do not want discussed. This Court has said that the rights of free speech, "while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time." Cox v. Louisiana, 379 U. S. 536, 379 U. S. 554; Cox v. Louisiana, 379 U. S. 559, 379 U. S. 574. I question whether it is absolutely certain, as the Court's opinion indicates, that "academic freedom" permits a teacher to breach his contractual agreement to teach only the subjects designated by the school authorities who hired him.
Certainly the Darwinian theory, precisely like the Genesis story of the creation of man, is not above challenge. In fact the Darwinian theory has not merely been criticized by religionists, but by scientists, and perhaps no scientist would be willing to take an oath and swear that everything announced in the Darwinian theory is unquestionably true. The Court, it seems to me, makes a serious mistake in bypassing the plain, unconstitutional vagueness of this statute in order to reach out and decide this troublesome, to me, First Amendment question. However wise this Court may be or may become hereafter, it is doubtful that, sitting in Washington, it can successfully supervise and censor the curriculum of every public school in every hamlet and city in the United States. I doubt that our wisdom is so nearly infallible.
I would either strike down the Arkansas Act as too vague to enforce or remand to the State Supreme Court for clarification of its holding and opinion.
case savors of a studied effort to avoid coming to grips with this anachronistic statute, and to "pass the buck" to this Court. This sort of temporizing does not make for healthy operations between the state and federal judiciaries. Despite these observations, I am in agreement with this Court's opinion that, the constitutional claims having been properly raised and necessarily decided below, resolution of the matter by us cannot properly be avoided. * See, e.g., Chicago Life Insurance Co. v. Needles, 113 U. S. 74, 113 U. S. 579 (1885).
I concur in so much of the Court's opinion as holds that the Arkansas statute constitutes an "establishment of religion" forbidden to the States by the Fourteenth Amendment. I do not understand, however, why the Court finds it necessary to explore at length appellants' contentions that the statute is unconstitutionally vague and that it interferes with free speech, only to conclude that these issues need not be decided in this case. In the process of not deciding them, the Court obscures its otherwise straightforward holding, and opens its opinion to possible implications from which I am constrained to disassociate myself.
* Short of reading the Arkansas Supreme Court's opinion to have proceeded on the premise that it need not consider appellants' "establishment" contention, clearly raised in the state courts and here, in view of its holding that the State possesses plenary power to fix the curriculum in its public schools, I can perceive no tenable basis for remanding the case to the state court for an explication of the purpose and meaning of the statute in question. I am unwilling to ascribe to the Arkansas Supreme Court any such quixotic approach to constitutional adjudication. I take the first sentence of its opinion (ante at 393 U. S. 101, n. 7) to encompass an overruling of appellants' "establishment" point, and the second sentence to refer only to their "vagueness" claim.
MR JUSTICE STEWART, concurring in the result.
free, for example, to decide that the only foreign language to be taught in its public school system shall be Spanish. But would a State be constitutionally free to punish a teacher for letting his students know that other languages are also spoken in the world? I think not.
It is one thing for a State to determine that "the subject of higher mathematics, or astronomy, or biology" shall or shall not be included in its public school curriculum. It is quite another thing for a State to make it a criminal offense for a public school teacher so much as to mention the very existence of an entire system of respected human thought. That kind of criminal law, I think, would clearly impinge upon the guarantees of free communication contained in the First Amendment and made applicable to the States by the Fourteenth.
The Arkansas Supreme Court has said that the statute before us may or may not be just such a law. The result, as MR. JUSTICE BLACK points out, is that "a teacher cannot know whether he is forbidden to mention Darwin's theory at all." Since I believe that no State could constitutionally forbid a teacher "to mention Darwin's theory at all," and since Arkansas may, or may not, have done just that, I conclude that the statute before us is so vague as to be invalid under the Fourteenth Amendment. See Cramp v. Board of Pub. Instruction, 368 U. S. 278.