It's not just older cases that have done this. The 2nd Circuit, in an opinion by Judge Calabresi, did so less than 2 weeks ago. Peck ex rel. Peck v. Baldwinsville Central School Dist. Judge Calabresi recognized that the rule of viewpoint neutrality has been and remains a "core facet of First Amendment protection."
Nor do I think it's a particularly liberal or conservative issue to ask federal courts to enforce a rule prohibiting viewpoint discrimination in schools. Indeed, in light of the value that our society has traditionally placed on academic freedom, it seems surprising that we would be happy with the idea that educators may systematically censor particular viewpoints from students responding to classroom assignments. Derek L. Gaubatz Director of Litigation The Becket Fund for Religious Liberty 1350 Connecticut Avenue, NW, Suite 605 Washington DC 20036 202 349-7208 (phone) 202 955-0090 (fax) -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Alan Brownstein Sent: Monday, October 31, 2005 5:15 PM To: Law & Religion issues for Law Academics Subject: RE: Alito and Religion I'm aware that some circuits in some older cases read Hazelwood to be a non-public forum case and require the rigorous review of viewpoint discriminatory pedagogical decisions in a school classroom. I think these cases are wrong. Other circuits read Hazelwood more broadly and clearly have the better of the argument -- particularly in light of recent Supreme Court decisions. The direction of the Court's free speech cases has been to move away from forum analysis in evaluating the decisions of librarians, broadcast programmers and other officials whose work involves discretionary judgments about both the content and viewpoint of speech. In Arkansas Public Television and in American Library Association, the Court recognized that government expressive institutions are not forums. Judicial review of the decisions made by the officials running these institutions should be lenient -- if indeed these decisions should be subject to judicial review at all. It does not matter whether we are talking about librarian discretion, editorial discretion, curricular discretion, or pedagogical discretion. Teachers, librarians, and others simply can not do their jobs without making choices that could render them vulnerable to claims of content and viewpoint discrimination. Subjecting their decisions to strict scrutiny on free speech clause grounds is impractical -- and more critically, it substitutes the judgment of the federal courts for value based decisions that should be left to political determination -- except in the most egregious of situations. The line the Court draws between content and viewpoint discrimination is nowhere near clear enough to permit this distinction to be employed as a basis for rigorously reviewing the decisions of people whose business it is to make decisions about speech. And even if the line was clearer than it is, rigorously reviewing viewpoint discriminatory decisions would still make no sense because part of the job of these officials to make distinctions based on viewpoint. This is particularly true when we are talking about elementary schools where part of what teachers do is to teach basic values, manners, morality and citizenship. There is nothing neutral about favoring stories promoting honesty, for example. If we took the argument seriously that viewpoint discriminatory judgments by teachers regarding student speech is subject to strict scrutiny review, the federal courts would become the de facto principals and schools boards of every public school in the United States. It is hard to believe that this suggestion is supported by conservatives who claim to be advocates of judicial restraint. Alan Brownstein UC Davis Hazelwood specifically limited itself to allowing schools greater leeway to engage in subject matter restrictions. It did not lift the requirement that strict scrutiny continue to apply to the more invidious censorship based on viewpoint (which, of course, includes religious viewpoints). So for example, in Searcey v. Harris, 888 F.2d 1314 (11th Cir. 1989), the Eleventh Circuit held: Although Hazelwood provides reasons for allowing a school official to discriminate based on content, we do not believe it offers any justification for allowing educators to discriminate based on viewpoint. The prohibition against viewpoint discrimination is firmly embedded in first amendment analysis. Without more explicit direction, we will continue to require school officials to make decisions relating to speech which are viewpoint neutral. See also Planned Parenthood of Southern Nevada, Inc. v. Clark County Sch. Dist., 941 F.2d 817, 829 (9th Cir. 1991) (en banc) (holding that school newspaper, sporting event programs, and yearbook were school-sponsored, non-public fora under Hazelwood and Cornelius, and therefore "control over access . . . can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.") Derek L. Gaubatz Director of Litigation The Becket Fund for Religious Liberty 1350 Connecticut Avenue, NW, Suite 605 Washington DC 20036 202 349-7208 (phone) 202 955-0090 (fax) Alan what serious questions are you referring to? It seems to me that Judge Alito's position reflects the majority view of the courts of appeals that Hazelwood requires application of strict scrutiny to viewpoint based censorship of student speech. -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Alan Brownstein Sent: Monday, October 31, 2005 12:12 PM To: Law & Religion issues for Law Academics Subject: RE: Alito and Religion Whether O'Connor would have decided Oliva the same way or not, Alito's opinion in this case raises some serious questions about his understanding of free speech doctrine. If I understand his opinion correctly, Alito argues that public school classrooms and students assignments are non-public forums, and, therefore, viewpoint discriminatory restrictions on student speech in either context should be reviewed under strict scrutiny. The captive audience issue Marc raises is only part of the problem. Alan Brownstein UC Davis [EMAIL PROTECTED] [EMAIL PROTECTED] _______________________________________________ _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
