Re: Axson-Flynn

[Marty Lederman]

ï

Sandy, the Tenth Circuit opinion does not suggest that your hypo would state a claim -- to the contrary.  The court's opinion explains in great detail why a school has the authority to require students to fullfill curricular requirements, and why that does not make out a "compelled speech" or free exercise violation.  The only reason the court of appeals reversed the summary judgment on the free speech claim was because there was a smidgen of evidence in the record that defendants' reason for requiring strict "script adherence" was hostility to plaintiff's Mormonism, rather than a genuine, consistently applied pedagogical rule.  Similarly, the court allows the free exercise claim to go forward for trial because there is some evidence that defendants selectively singled out the plaintiff for more stringent treatment, and that the defendants had a policy of "individualized exemptions" that they applied to permit other students to "opt out" of certain curricular assignments, but which they refused to apply to permit the plaintiff to "opt out."

 

 

----- Original Message -----

From: "Levinson" <[EMAIL PROTECTED]>

To: <[EMAIL PROTECTED]>

Sent: Wednesday, February 04, 2004 4:49 PM

Subject: Re: Re: Axson-Flynn

I haven't read the opinion.  But let me ask this:  Let's assume that the play chosen for presentation in a given semester was, say, David Mamet's Glengarry Glen Ross, which, to put it mildly, includes tons of profanity.  A student presents herself at an audition, saying, "you realize, of course, that I cannot use those words, so I expect you to rewrite my part if I am chosen."  Is there anyone on this list who believes that this "states a claim," so to speak, or can the audition be conditioned on the willingness to read the lines as written by the playwright?  Does anyone on this list believe that the director has a duty to select a play that everyone in the class would be comfortable with?  (Recall Butler v. Michigan, where the Court struck down a requirement that all literature sold in bookstores had to be acceptable for an audience that included children.  Surely that was correct.)  So is this case (which, recall, I haven't yet read) simply fact-specific or does it state a generalizable principle that would affect my hypothetical.  (Or, with regard to the Jewish student), does she have a right that the play not be performed on Yom Kippur?  Surely not.  So, in the alternative, does the director have the duty to train an understudy who can perform on Yom Kippur rather than impose a duty on anyone selected to perform in the play to show up at all performances unless sick?)

sandy

-----Original Message-----
From: David Cruz <[EMAIL PROTECTED]>
To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]>
Date: Wed, 4 Feb 2004 13:13:53 -0800 (Pacific Standard Time)
Subject: Re: Axson-Flynn

On Wed, 4 Feb 2004, Rick Duncan wrote:

> The 10th Circuit finally came down in Axson-Flynn (the
> case involving the LDS drama student who refused to
> say the "F" word or to curse in God's name as part of
> class exercises at the U of Utah). The Court ruled in
> her favor and reversed and remanded.
> [snip]
> The court held that since the drama faculty had
> exempted a Jewish student from a required
> improvisational exercise on Yom Kippur but refused to
> grant Ms. Axson-Flynn an exemption from saying the
> forbidden words when performing required exercises,
> there was at least a genuine issue of material fact as
> to whether the University maintained an individualized
> exemption process which would trigger strict scrutiny
> under Smith-Lukumi-Sherbert. It seems right to me.
> [snip]

Thanks to Rick for bringing this to our attention.  I think that as long
as "individualized exemptions" remain a legally viable distinction from
Smith, the disputed issue here does seem genuine and material.

David B. Cruz
Professor of Law
University of Southern California Law School
Los Angeles, CA 90089-0071
U.S.A.
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