1. I don’t think that speech/parade permit requirements are
limited to “first come, first served.” Grayned v. City of Rockford, for
instance, noted that demonstrations or parades could be forbidden if they “put
an intolerable burden on the essential flow of traffic”; Cox v. New Hampshire
contemplates that such factors would be considered as part of the demonstration
licensing system, so long as the licenser’s “discretion ... [is] exercised with
‘uniformity of method of treatment upon the facts of each application, free
from improper or inappropriate considerations and from unfair discrimination,’”
and so long as the licenser uses a "systematic, consistent and just order of
treatment, with reference to the convenience of public use of the highways.”
Thomas v. Chicago Park Dist. likewise allowed consideration of whether “the
intended use would present an unreasonable danger to the health or safety of
park users or Park District employees.”
To be sure, it’s possible that, if read too broadly and
flexibly, these factors can indeed be applied in a discriminatory way.
(Indeed, even the most precisely defined criminal prohibitions could be applied
in a discriminatory way, just given the risk of prosecutorial discretion.) But
the Court has been willing to conclude, and I think rightly so, that the
factors, if sufficiently well-defined and subject to policing for inconsistent
application, the risk of discrimination is not so great that it invalidates the
program.
What if the Missouri program? Fortunately, Missouri posts the
evaluation criteria, which you can read at http://dnr.mo.gov/pubs/pub2425.pdf.
The first three basically focus on whether the application has been completely
filled out, in sufficient detail. The remaining factors, with specific point
allotments, include (4) the fraction of the scrap tires that would come from
Missouri, (4a) whether the project uses “mats/tiles or pour-in-place surface
material,” (4b) whether “the described method of containment for the
appropriate depth of loose surface material ... is adequate,” (4c) whether the
bids specify the fraction of the scrap tires that would come from Missouri, (5)
whether the grant, if awarded, would be announced in enough forms of media (if
I read this item correctly), presumably because Missouri wants the grants to
stimulate more interest in the program, (6) whether enough information is given
about how “solid waste management education ... will be incorporated into the
school’s curriculum or into informational material to be provided to the public
by the grant applicant,” (7) whether the Solid Waste Management Region is
involved with the project, (8) whether an adequate scope of work and timeline
for the work are given, (9) whether the budget is complete and supported by
three or more quotes, (10) how much scrap tire material the applicant would
also buy itself, (11) the fraction of the school population and neighboring
population below poverty level, and (12) whether there has been another recent
grant in the area.
Again, there’s always a risk of some discrimination in the
implementation of any program – but here that risk seems quite low, and well
below the risk involved in considering, for instance, traffic congestion and
traffic hazard questions in parade demonstration schemes.
2. Even under current law, this strikes me as quite fine under
the Mitchell v. Helms concurrence, given that the benefit is unlikely to
“result in governmental indoctrination” – the playground surface can help kids
play more safely, but even in the unlikely event that there would be worship
services held in the playground, those worship services are quite unlikely to
benefit materially from the resurfacing (given that the worship services are
unlikely to involve swinging, sliding, and climbing monkey bars). To be sure,
one difference here is that the school gets a grant that “for the purchase of
recycled tires to resurface playgrounds,” rather than just getting a truckload
of recycled tires. But I don’t read the Mitchell concurrence as making such
targeted grants categorically forbidden, especially given how little sense such
a distinction would make here.
Eugene
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, June 02, 2015 10:06 AM
To: Law & Religion issues for Law Academics
Subject: Re: 8th Cir. upholds exclusion of religious schools from playground
safety funds
Eugene, I doubt the speech/parade permit cases are analogous: In most such
cases, the "neutral" criterion (other than adhering to the time, place and
manner rules) turns out to be, simply, "first come, first served."
With grant programs such as these, I suppose it's possible that the
administrators engage in no assessment of "quality" or "importance" or
appropriateness" -- but I doubt it. Is it really very likely that in a very
selective grant program, the state will be just as willing to give playground
surfacing grants to, say, the Wiccan church, or the Church of Scientology, or
the Nation of Islam, or the Democratic Party Headquarters daycare center, as it
does to other playgrounds? If not, then I think there are serious
constitutional questions raised when churches ask to be evaluated along with
all other applicants.
Wolman is not really on point if, as you suggest, that program was one that
offered health services (not cash, mind you) to all schoolchildren. I agree
with you that it should be the case that religious entities are, at a minimum,
not constitutionally prohibited from enjoying truly universal
benefits/entitlements, such as police and fire protection. And perhaps that
should extend to universally available funding, as well (if there is any such
thing).
But the cases we've been discussing (those in the 6th and 8th Circuits) are not
those in which the funding is universally available, and provided to all those
who qualify. Hard choices must be made--and they will be made by state actors.
In any event, whatever the law should be, I think you'd agree that, for at
least several decades, the Supreme Court law has been that churches are
constitutionally ineligible to receive direct funding, even pursuant to an
otherwise universal program, let alone one that is highly selective. Let's say
you are right that that doctrine has been wrongheaded, and that the Court
should (and is likely to) overturn it. Even so:
1. Shouldn't a lower court at least acknowledge the sea change from decades of
doctrine, and contend with the hard questions, as Sutton (to his credit) did?
2. Wouldn't there be something at least a bit odd, and disconcerting, for the
Supreme Court to go further, and to say to every state and locality: "We know
that for as long as any of us can remember, this Court has concluded that
governments must not provide direct funding to churches. That doctrine was
ill-advised and we hereby overturn it. But wait!: It is not only the case
that the Constitution permits such funding . . . turns out we had it exactly
backwards all those years: the Constitution requires churches to be funded on
a nondiscriminatory basis.
The oddity of such an about-face is, I think, one big reason why Rehnquist
wrote, and Kennedy joined, the majority opinion in Locke v. Davey: there'd be
something very weird, to say the least, about going from long-prohibited to
required in one fell swoop. Doesn't mean they can't or shouldn't do so; but it
is understandable that they'd be anxious about it.
On Tue, Jun 2, 2015 at 11:33 AM, Volokh, Eugene
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
1. In Trinity, the state apparently had a pretty detailed
application evaluation process for resurfacing grant applications, to the point
that it could tell Trinity that it had ranked 5th out of 44 applications. I
imagine many highly bureaucratized processes with 44 applications, especially
ones that don’t involve difficult judgments of artistic or scientific quality,
are comparably structured. In the Free Speech Clause context, sufficiently
cabined (even if not perfectly mathematical) rules for parade permits and the
like are seen as sufficient to prevent undue risk of viewpoint discrimination.
I don’t see why sufficiently cabined rules for grant applications wouldn’t
suffice to prevent undue risk of religious discrimination.
2. I think that religious institutions should generally be able
to participate in generally available benefits programs on the same footing as
secular ones, even if the benefits (e.g., tax exemptions, post-natural-disaster
rebuilding funds, and so on) can be used for specifically religious aspects of
the institution; in this respect, I largely agree with the Mitchell plurality.
But note that, in the playground case, it is extremely unlikely that the safer
playground surface would itself be used for, say, religious worship; even if
there is a religious service on the playground, that service will likely not
involve climbing and jumping, and thus could have just as well been performed
regardless of the surface. The safer playground surface simply makes playing
safer for kids.
3. Even in the 1970s, Wolman v. Walter noted that “the
provision of health services to all schoolchildren public and nonpublic does
not have the primary effect of aiding religion” and is thus constitutional. To
be sure, those could be conceptualized as being given to schoolchildren
directly, rather than to schools. But you can’t provide safer playground
surfaces on a schoolchild-by-schoolchild basis – the way you provide this
health-protection service to schoolchildren (at those schools, public and
nonpublic, selected through an evaluation process that doesn’t discriminate
based on religion) is by resurfacing the playground at the school. That
strikes me as an eminently legitimate thing for the government to do (we’re
talking about the Establishment Clause) and as something that the government
ought not to be able to discriminate against religious schools in doing (back
to the Free Exercise Clause and perhaps the
effect-of-hindering-rather-than-promoting / disapproval-rather-than-endorsement
prong of the Establishment Clause).
Eugene
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