Establishment Clause, equal access, and confusion
I've never seen the force of concerns about confusion about government endorsement created by equal access proposals, especially when there's time to explain things to the confused people. Schools' job is to dispel confusion among students about various things. They have lots of opportunity to do it. How hard is it to put up signs - and, if necessary, even make an announcement in class or in some handouts - that say something like: Our school system opens up space after hours to any community group that wants to use it. This is our way of helping people speak on whatever subjects they want to speak about. All groups are equally entitled to use this space, even if they say things that other people might disagree with - that's what promoting free speech is all about. So please keep in mind that the things you see said and displayed here after hours don't come from the school system or the government - they come from the private groups that are using this space. Not a complicated message, and in fact a message that's worth teaching to the students generally. (Of course, this is just what I cobbled together in a couple of minutes; naturally, this can be edited to be clearer.) And if the constitutional norm is equal treatment, which I think it should be, then the answer to the argument that the government may reject the norm because of the risk of confusion is that there's a less restrictive means of avoiding the confusion: educating the public about the equal-access nature of the program. This problem, incidentally, likewise comes up with the statutes barring teachers from teaching in religious garb (which might be broad enough to cover yarmulkes and headscarves, though most clearly applies to nun's habits and the like). The statutes were upheld by two lower courts a few decades ago, but a more recent lower court decision struck one down, I think, and rightly so. Any concerns about confusion on the students' part can be easily dispelled, I think, by simply teaching students - and it shouldn't take long - that in our society different people have different beliefs, that some people believe that they need to wear particular religious clothing, and that these beliefs are the teachers' own, not the schools'. Again, not a complicated message, and one that's worth teaching in any event. To be sure, some people might remain confused even after this, and might insist on believing that the government is endorsing religion even when the government accurately and clearly reports that it simply provides equal access. But this possibility that a few people might be confused, even when the government makes clear that all it's offering is equal access - just like the equal access offered to religious groups in many contexts, such as tax exemptions, the use of GI Bill grants, and so on - doesn't strike me as reason enough to reject equal access. Eugene Marci Hamilton writes: Apologies to Marty for overreading his reference to Lukumi. The facts of Bronx Household indicate that the entire school is transformed into a worship center every Sunday. Students entering to get their homework or for any other reason would be confused regarding their school's support for the religious organization. This moves the case away from the club cases. For this reason, I do not share Marty's assumption about the Court's willingness to overrule and/or to even take the case. If separation means anything historically or contemporaneously, surely it means that a public building can draw the line at being home to full-scale religious worship. Is a courthouse that hosts bar association events required to permit its building to be transformed into a worship center on the relevant Sabbath? Part of the reason this is difficult is because Rosenberger was decided wrongly in my view, but the cases do not mandate a return to the days of establishment when public buildings were worship buildings and vice versa. ___ 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.
Re: Establishment Clause, equal access, and confusion
And how would the school explain to six-year-old students why the school is open to such uses only on Sundays; and why, just coincidently, the overwhelmingly predominant uses of the school are for Christian religious services? Don't get me wrong -- this doesn't mean that I necessary think there would be an EC violation. But I am inclined to think that, at a minimum, the school must (but cf. Braunfeld) expand its access policy beyond Sundays; provide very robust disclaimers (per the controlling opinions in Pinette) -- disclaimers explicable to young students (more of a challenge than Eugene suggests); and perhaps even make special efforts to ensure that an array of groups, religious and nonreligious, are encouraged to make use of the school. On Mon, Aug 15, 2011 at 12:40 PM, Volokh, Eugene vol...@law.ucla.eduwrote: I’ve never seen the force of concerns about confusion about government endorsement created by equal access proposals, especially when there’s time to explain things to the confused people. Schools’ *job* is to dispel confusion among students about various things. They have lots of opportunity to do it. How hard is it to put up signs – and, if necessary, even make an announcement in class or in some handouts – that say something like: ** ** Our school system opens up space after hours to any community group that wants to use it. This is our way of helping people speak on whatever subjects they want to speak about. All groups are equally entitled to use this space, even if they say things that other people might disagree with – that’s what promoting free speech is all about. So please keep in mind that the things you see said and displayed here after hours don’t come from the school system or the government – they come from the private groups that are using this space. ** ** Not a complicated message, and in fact a message that’s worth teaching to the students generally. (Of course, this is just what I cobbled together in a couple of minutes; naturally, this can be edited to be clearer.) And if the constitutional norm is equal treatment, which I think it should be, then the answer to the argument that the government may reject the norm because of the risk of confusion is that there’s a less restrictive means of avoiding the confusion: educating the public about the equal-access nature of the program. ** ** This problem, incidentally, likewise comes up with the statutes barring teachers from teaching in religious garb (which might be broad enough to cover yarmulkes and headscarves, though most clearly applies to nun’s habits and the like). The statutes were upheld by two lower courts a few decades ago, but a more recent lower court decision struck one down, I think, and rightly so. Any concerns about confusion on the students’ part can be easily dispelled, I think, by simply teaching students – and it shouldn’t take long – that in our society different people have different beliefs, that some people believe that they need to wear particular religious clothing, and that these beliefs are the teachers’ own, not the schools’. Again, not a complicated message, and one that’s worth teaching in any event. ** ** To be sure, some people might remain confused even after this, and might insist on believing that the government is endorsing religion even when the government accurately and clearly reports that it simply provides equal access. But this possibility that a few people might be confused, even when the government makes clear that all it’s offering is equal access – just like the equal access offered to religious groups in many contexts, such as tax exemptions, the use of GI Bill grants, and so on – doesn’t strike me as reason enough to reject equal access. ** ** Eugene ** ** Marci Hamilton writes: ** ** Apologies to Marty for overreading his reference to *Lukumi*. The facts of *Bronx Household* indicate that the entire school is transformed into a worship center every Sunday. Students entering to get their homework or for any other reason would be confused regarding their school's support for the religious organization. This moves the case away from the club cases. For this reason, I do not share Marty's assumption about the Court's willingness to overrule and/or to even take the case. If separation means anything historically or contemporaneously, surely it means that a public building can draw the line at being home to full-scale religious worship. Is a courthouse that hosts bar association events required to permit its building to be transformed into a worship center on the relevant Sabbath? Part of the reason this is difficult is because *Rosenberger *was decided wrongly in my view, but the cases do not mandate a return to the days of establishment when public buildings were worship
Re: Establishment Clause, equal access, and confusion
The 2d Cir does not disagree with the equal access point, but rather says that the School Dist is prohibiting an activity, not expression per se. In fact, prayer, religious instruction, expression of devotion to God, and the singing of hymns are not prohibited. What is excluded is full-scale worship services with all that entails. Worship services are not student groups, but rather collections of adults and children. If a student group engaging in proselytizing activities a la Rosenberger were the equivalent of a worship service, Eugene might be correct. The 2d Cir. is saying that there is no such equivalence here. On the confusion point, I would think that you are more likely to have confusion about government endorsement when a school is transformed into a church for a full day each week than when you have a short prayer announced at graduation. Yet, the latter is unconstitutional under Lee v. Weisman. The disclaimer proposal is insufficient to forestall children and everyone else, actually, from thinking that P.S. 151 is in fact Evangelical, or Buddhist, or whatever, when it is the worship home for a congregation. I don't know if you have noticed, but it is a fact that politicians routinely favor their own religion, so it is perfectly reasonable to conclude that a school board opening the door to a particular religious group for their most important religious activity, worship, is an endorsement of that religious group. And the school board's rejection of a particular religious group's application, even if based on neutral principles, also would raise serious questions about endorsement. Thus, the prohibition is necessary to avoid an Establishment Clause violation. Marci In a message dated 8/15/2011 12:40:58 P.M. Eastern Daylight Time, vol...@law.ucla.edu writes: But this possibility that a few people might be confused, even when the government makes clear that all it’s offering is equal access – just like the equal access offered to religious groups in many contexts, such as tax exemptions, the use of GI Bill grants, and so on – doesn’t strike me as reason enough to reject equal access. ___ 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.
RE: Establishment Clause, equal access, and confusion
Lee v. Weisman was not about confusion. It was about actual government sponsorship. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, August 15, 2011 1:18 PM To: religionlaw@lists.ucla.edu Subject: Re: Establishment Clause, equal access, and confusion The 2d Cir does not disagree with the equal access point, but rather says that the School Dist is prohibiting an activity, not expression per se. In fact, prayer, religious instruction, expression of devotion to God, and the singing of hymns are not prohibited. What is excluded is full-scale worship services with all that entails. Worship services are not student groups, but rather collections of adults and children. If a student group engaging in proselytizing activities a la Rosenberger were the equivalent of a worship service, Eugene might be correct. The 2d Cir. is saying that there is no such equivalence here. On the confusion point, I would think that you are more likely to have confusion about government endorsement when a school is transformed into a church for a full day each week than when you have a short prayer announced at graduation. Yet, the latter is unconstitutional under Lee v. Weisman. The disclaimer proposal is insufficient to forestall children and everyone else, actually, from thinking that P.S. 151 is in fact Evangelical, or Buddhist, or whatever, when it is the worship home for a congregation. I don't know if you have noticed, but it is a fact that politicians routinely favor their own religion, so it is perfectly reasonable to conclude that a school board opening the door to a particular religious group for their most important religious activity, worship, is an endorsement of that religious group. And the school board's rejection of a particular religious group's application, even if based on neutral principles, also would raise serious questions about endorsement. Thus, the prohibition is necessary to avoid an Establishment Clause violation. Marci In a message dated 8/15/2011 12:40:58 P.M. Eastern Daylight Time, vol...@law.ucla.edu writes: But this possibility that a few people might be confused, even when the government makes clear that all it’s offering is equal access – just like the equal access offered to religious groups in many contexts, such as tax exemptions, the use of GI Bill grants, and so on – doesn’t strike me as reason enough to reject equal access. ___ 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.
Re: Establishment Clause, equal access, and confusion
I could have sworn Lee was about endorsement (characterized by J. Kennedy as coercion) and whether the listener felt disenfranchised by the govt's apparent endorsement of religion (whether the government intended to endorse it or not). Marci In a message dated 8/15/2011 1:35:48 P.M. Eastern Daylight Time, dlayc...@virginia.edu writes: Lee v. Weisman was not about confusion. It was about actual government sponsorship. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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.
RE: Establishment Clause, equal access, and confusion
I’m with Doug on this: It’s hard for the school to honestly disclaim endorsement and preferential treatment when it deliberately invites a member of the clergy, precisely because he is a member of the clergy. It’s much easier to make clear to people that there is no endorsement or preferential treatment when the school says, honestly, that this is a public access program that all groups can equally access, and that the church isn’t being given any special access because it’s a church or because the school endorses its message. Indeed, I take it that if a school opens up its facilities for nonworship programs, it would still want to make clear to people that it isn’t endorsing that group, whether the group is the Sierra Club or the Young Americans for Freedom or whoever else – or for that matter a religious group that isn’t engaged in worship services. Presumably the school thinks, and I think correctly so, that it will be easy enough to make this clear. It shouldn’t be any harder for worship services. Finally, if the concern is that students might view endorsement from the fact that the school is open that way every Sunday, nothing stops the school from limiting the number of times one group can use the school each year. And if the school thinks that this isn’t necessary, because it can let (say) the NRA use the school each Sunday without people thinking that the school endorses the NRA – presumably because that’s either already clear or could be made clear – then I think the school can equally let the church use the school each Sunday (with the proper disclaimers) without fear of undue confusion on the public’s part. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, August 15, 2011 10:18 AM To: religionlaw@lists.ucla.edu Subject: Re: Establishment Clause, equal access, and confusion The 2d Cir does not disagree with the equal access point, but rather says that the School Dist is prohibiting an activity, not expression per se. In fact, prayer, religious instruction, expression of devotion to God, and the singing of hymns are not prohibited. What is excluded is full-scale worship services with all that entails. Worship services are not student groups, but rather collections of adults and children. If a student group engaging in proselytizing activities a la Rosenberger were the equivalent of a worship service, Eugene might be correct. The 2d Cir. is saying that there is no such equivalence here. On the confusion point, I would think that you are more likely to have confusion about government endorsement when a school is transformed into a church for a full day each week than when you have a short prayer announced at graduation. Yet, the latter is unconstitutional under Lee v. Weisman. The disclaimer proposal is insufficient to forestall children and everyone else, actually, from thinking that P.S. 151 is in fact Evangelical, or Buddhist, or whatever, when it is the worship home for a congregation. I don't know if you have noticed, but it is a fact that politicians routinely favor their own religion, so it is perfectly reasonable to conclude that a school board opening the door to a particular religious group for their most important religious activity, worship, is an endorsement of that religious group. And the school board's rejection of a particular religious group's application, even if based on neutral principles, also would raise serious questions about endorsement. Thus, the prohibition is necessary to avoid an Establishment Clause violation. Marci In a message dated 8/15/2011 12:40:58 P.M. Eastern Daylight Time, vol...@law.ucla.edu writes: But this possibility that a few people might be confused, even when the government makes clear that all it’s offering is equal access – just like the equal access offered to religious groups in many contexts, such as tax exemptions, the use of GI Bill grants, and so on – doesn’t strike me as reason enough to reject equal access. ___ 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.
Re: Establishment Clause, equal access, and confusion
The two decisions in which possible erroneous endorsements play a role are Pinette and Good News(and maybe the ten commandment cases).In Lee,the problem was not about a mistake about the existence of endorsement, but what the meaning of the school's action in including a prayer at graduation. From: hamilto...@aol.com [mailto:hamilto...@aol.com] Sent: Monday, August 15, 2011 01:38 PM To: religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu Subject: Re: Establishment Clause, equal access, and confusion I could have sworn Lee was about endorsement (characterized by J. Kennedy as coercion) and whether the listener felt disenfranchised by the govt's apparent endorsement of religion (whether the government intended to endorse it or not). Marci In a message dated 8/15/2011 1:35:48 P.M. Eastern Daylight Time, dlayc...@virginia.edu writes: Lee v. Weisman was not about confusion. It was about actual government sponsorship. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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.
RE: Establishment Clause, equal access, and confusion
I doubt that a typical six-year-old is going to much notice this (I say this as a father of a six-year-old and a seven-year-old) -- especially once he's told that everyone is allowed to access the school equally, and that what he sees at the school those days comes from the group, not from the school. But if you think it necessary, you can add, You might notice that some groups have decided to use the school more than others. But that's their decision. We at the school just decided to open it to anyone who wants to come. But if you think this isn't enough, and that some six-year-olds will be confused, wouldn't the six-year-old might be confused standard go rather too far? I suppose a six-year-old who sees the principal going to church Sunday might think that the school is religious, and (to return to the religious garb case) a six-year-old seeing a teacher wearing a yarmulke might think that this was the school's choice and not the teacher's (even though other teachers don't wear yarmulkes). It seems to me, though, that constitutionality should be determined by something other than the possibility that some six-year-olds, despite a disclaimer, won't fully grasp the distinction between private choice and public choice. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, August 15, 2011 9:53 AM To: Law Religion issues for Law Academics Subject: Re: Establishment Clause, equal access, and confusion And how would the school explain to six-year-old students why the school is open to such uses only on Sundays; and why, just coincidently, the overwhelmingly predominant uses of the school are for Christian religious services? Don't get me wrong -- this doesn't mean that I necessary think there would be an EC violation. But I am inclined to think that, at a minimum, the school must (but cf. Braunfeld) expand its access policy beyond Sundays; provide very robust disclaimers (per the controlling opinions in Pinette) -- disclaimers explicable to young students (more of a challenge than Eugene suggests); and perhaps even make special efforts to ensure that an array of groups, religious and nonreligious, are encouraged to make use of the school. On Mon, Aug 15, 2011 at 12:40 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: I've never seen the force of concerns about confusion about government endorsement created by equal access proposals, especially when there's time to explain things to the confused people. Schools' job is to dispel confusion among students about various things. They have lots of opportunity to do it. How hard is it to put up signs - and, if necessary, even make an announcement in class or in some handouts - that say something like: Our school system opens up space after hours to any community group that wants to use it. This is our way of helping people speak on whatever subjects they want to speak about. All groups are equally entitled to use this space, even if they say things that other people might disagree with - that's what promoting free speech is all about. So please keep in mind that the things you see said and displayed here after hours don't come from the school system or the government - they come from the private groups that are using this space. Not a complicated message, and in fact a message that's worth teaching to the students generally. (Of course, this is just what I cobbled together in a couple of minutes; naturally, this can be edited to be clearer.) And if the constitutional norm is equal treatment, which I think it should be, then the answer to the argument that the government may reject the norm because of the risk of confusion is that there's a less restrictive means of avoiding the confusion: educating the public about the equal-access nature of the program. This problem, incidentally, likewise comes up with the statutes barring teachers from teaching in religious garb (which might be broad enough to cover yarmulkes and headscarves, though most clearly applies to nun's habits and the like). The statutes were upheld by two lower courts a few decades ago, but a more recent lower court decision struck one down, I think, and rightly so. Any concerns about confusion on the students' part can be easily dispelled, I think, by simply teaching students - and it shouldn't take long - that in our society different people have different beliefs, that some people believe that they need to wear particular religious clothing, and that these beliefs are the teachers' own, not the schools'. Again, not a complicated message, and one that's worth teaching in any event. To be sure, some people might remain confused even after this, and might insist on believing that the government is endorsing religion even when
Re: Establishment Clause, equal access, and confusion
, and that some six-year-olds will be confused, wouldn’t the “six-year-old might be confused” standard go rather too far? I suppose a six-year-old who sees the principal going to church Sunday might think that the school is religious, and (to return to the religious garb case) a six-year-old seeing a teacher wearing a yarmulke might think that this was the school’s choice and not the teacher’s (even though other teachers don’t wear yarmulkes). It seems to me, though, that constitutionality should be determined by something other than the possibility that some six-year-olds, despite a disclaimer, won’t fully grasp the distinction between private choice and public choice. ** ** Eugene ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Monday, August 15, 2011 9:53 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Establishment Clause, equal access, and confusion ** ** And how would the school explain to six-year-old students why the school is open to such uses only on Sundays; and why, just coincidently, the overwhelmingly predominant uses of the school are for Christian religious services? ** ** Don't get me wrong -- this doesn't mean that I necessary think there would be an EC violation. But I am inclined to think that, at a minimum, the school must (but cf. Braunfeld) expand its access policy beyond Sundays; provide very robust disclaimers (per the controlling opinions in Pinette) -- disclaimers explicable to young students (more of a challenge than Eugene suggests); and perhaps even make special efforts to ensure that an array of groups, religious and nonreligious, are encouraged to make use of the school. On Mon, Aug 15, 2011 at 12:40 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I’ve never seen the force of concerns about confusion about government endorsement created by equal access proposals, especially when there’s time to explain things to the confused people. Schools’ *job* is to dispel confusion among students about various things. They have lots of opportunity to do it. How hard is it to put up signs – and, if necessary, even make an announcement in class or in some handouts – that say something like: Our school system opens up space after hours to any community group that wants to use it. This is our way of helping people speak on whatever subjects they want to speak about. All groups are equally entitled to use this space, even if they say things that other people might disagree with – that’s what promoting free speech is all about. So please keep in mind that the things you see said and displayed here after hours don’t come from the school system or the government – they come from the private groups that are using this space. Not a complicated message, and in fact a message that’s worth teaching to the students generally. (Of course, this is just what I cobbled together in a couple of minutes; naturally, this can be edited to be clearer.) And if the constitutional norm is equal treatment, which I think it should be, then the answer to the argument that the government may reject the norm because of the risk of confusion is that there’s a less restrictive means of avoiding the confusion: educating the public about the equal-access nature of the program. This problem, incidentally, likewise comes up with the statutes barring teachers from teaching in religious garb (which might be broad enough to cover yarmulkes and headscarves, though most clearly applies to nun’s habits and the like). The statutes were upheld by two lower courts a few decades ago, but a more recent lower court decision struck one down, I think, and rightly so. Any concerns about confusion on the students’ part can be easily dispelled, I think, by simply teaching students – and it shouldn’t take long – that in our society different people have different beliefs, that some people believe that they need to wear particular religious clothing, and that these beliefs are the teachers’ own, not the schools’. Again, not a complicated message, and one that’s worth teaching in any event. To be sure, some people might remain confused even after this, and might insist on believing that the government is endorsing religion even when the government accurately and clearly reports that it simply provides equal access. But this possibility that a few people might be confused, even when the government makes clear that all it’s offering is equal access – just like the equal access offered to religious groups in many contexts, such as tax exemptions, the use of GI Bill grants, and so on – doesn’t strike me as reason enough to reject equal access. Eugene Marci Hamilton writes
