Here's what the court said about the restriction on Bishop's
"optional classes." (I set aside the restrictions on Bishop's in-class
remarks, which strike me as raising some slightly different matters.)
"As for the after-class meetings, the University has concluded
that meetings on the evidence of God in human physiology or from a
'Christian perspective' cannot be conducted by Dr. Bishop in a manner
that connects them to the courses he teaches. The University has not
suggested that Dr. Bishop cannot organize such meetings, make notice of
them on campus, or request University space to conduct them; nor could
it so prohibit him. The University has simply said he may not hold such
meetings as classes related to the courses he teaches. The phrasing
'optional class' or 'optional meeting' and the scheduling before finals
gave the impression of official sanction, which might have unduly
pressured students into attending and, at least for purposes of
examination, into adopting the beliefs expressed by Dr. Bishop. The
University may seek to avoid these consequences, even where unintended.
Conversely, when Dr. Bishop makes it plain to his students that such
meetings are not mandatory, not considered part of the course work, and
not related to grading, the University cannot prevent him from
conducting such meetings, nor has it."
That strikes me as a conclusion that if a professor organizes
Talmud study class, invites students generally -- for instance, through
a leaflet posted on a bulletin board, or even a school-wide e-mail
announcing the event or program much like other events or programs are
announced -- "makes it plain . . . that such [classes] are not
mandatory, not considered part of the course work, and not related to
grading, the University cannot prevent him from conducting such
[classes]."
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Joel Sogol
> Sent: Tuesday, November 08, 2005 6:06 PM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Free Exercise Clause and government employees
>
>
> If I understand this right, some of it was discussed in
> Bishop v. Aronov, 926 F.2d 1066 (C.A.11 (Ala.)),1991.:
>
> "The University of Alabama through its Board of Trustees (the
> "University") appeals the district court's summary judgment
> and other orders in favor of Assistant Professor Phillip A.
> Bishop ("Dr. Bishop") enjoining the University from
> curtailing his speech and religion rights in certain
> respects. [FN1] We conclude that the action taken by the
> University did not transgress constitutional guarantees and
> proscriptions, and we now reverse."
>
> At the time, I was the Hillel director, and was involved in
> channeling some of the complaints to the University. It
> appeared that student grades were impacted by attendance at
> the meetings at Bishop's, but I do not recall if that was
> ever proven. There was certainly concern about it on the
> part of the students who did not attend.
>
> Joel L. Sogol
> Attorney at Law
> 811 21st Avenue
> Tuscaloosa, Alabama 35401
> ph (205) 345-0966
> fx (205) 345-0971
> [EMAIL PROTECTED]
>
> Ben Franklin observed that truth wins a fair fight -- which
> is why we have evidence rules in U.S. courts.
>
>
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Alan
> Brownstein
> Sent: Tuesday, November 08, 2005 5:29 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Free Exercise Clause and government employees
>
> Good questions, Eugene.
>
> I'm glad to hear that students are studying Talmud at UCLA.
> And I doubt there is a problem with a faculty member joining
> them if they meet in an open classroom as a Jewish Study Group.
>
> But I have a problem with the faculty member organizing and
> leading a Talmud study group in his office and inviting
> students from his class to participate. (I also have a
> problem with a faculty member organizing and leading a
> Republican Party study group in his office and inviting
> students from his class to participate.)
>
> If the former isn't an Establishment clause violation, I
> think it comes close enough to be prohibited under the play
> in the joints analysis in Locke.
>
> As for the free exercise argument, if a prohibition against
> such study groups did not violate the free speech clause,
> there may be a real problem in holding that it violates the
> free exercise clause. We would need to know whether a
> prohibition against other group meetings would also be upheld
> under free speech clause, government as employer doctrine. If
> meetings involving other subjects and viewpoints could also
> be prohibited, can religious expressive activities receive
> greater protection under the free exercise clause than
> secular expressive activities receive under the free speech clause?
>
> Alan Brownstein
>
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of
> Volokh, Eugene
> Sent: Tuesday, November 08, 2005 2:06 PM
> To: Law & Religion issues for Law Academics
> Subject: Free Exercise Clause and government employees
>
> Alan asks some excellent points. I should say that
> there are sometimes Talmud study classes held during the day
> at UCLA law school; I don't think they're taught by a faculty
> member, but if there were a faculty member who wanted to
> teach them, I think that would be great, and I think it would
> also be great if students were invited.
>
> But let me ask a broader question; we've spoken so far
> about the Free Speech Clause, but it seems to me the Free
> Exercise Clause is also involved here. Holding a Bible study
> class in the place where one lives, it seems to me, is the
> exercise of religion. A rule that facially discriminates
> against such exercise of religion would thus presumptively
> implicate the Free Exercise Clause. See McDaniel v. Paty;
> Lukumi Babalu.
>
> Does Locke v. Davey rescue such a prohibition from
> invalidity? Does the Free Exercise Clause somehow not apply
> to discrimination against religious practices when the
> government is acting as employer?
>
> Eugene
>
> Alan Brownstein writes:
>
> > What makes this a hard case is that RAs wear several
> > different hats -- and it's not that easy to distinguish
> > between them because RAs don't have fixed office hours (at
> > least I don't think they do) and may be on the job for a good
> > part of the day -- maybe all of it.
> >
> > So let's break this down.
> >
> > 1. Suppose an RA is on the job, at the office in a sense, and
> > available for counseling or other work related interactions
> > with dorm students from 9 to 5, Monday through Friday. Could
> > he be told not to hold bible study classes in his room during
> > this period? Would the University also have to prohibit him
> > from holding other kinds of meetings as well.
> >
> > 2. Who gets invited to these classes? Does it matter whether
> > the RA invites students from the hall for which he is an RA.
> >
> > 3. Can I hold Torah study classes in my office at the Law
> > School during the school day and invite my students to
> > attend? Can the Law School prohibit me from doing so?
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