RE: Bowman v. U.S.
Would the result be the same if a school required community service, but prohibited students from fulfilling that obligation in a religious setting, or excluding say Sunday school teaching from the list of permissible placements? Marc Stern -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, May 04, 2009 7:51 PM To: Law Religion issues for Law Academics Subject: Re: Bowman v. U.S. While speech is involved in the classroom, career preparation is more involved than just speech. The state is not simply handing out funds for the sheer joy of learning or enriching discourse. The state funding of ministers or rabbis for that matter is a direct and knowing benefit to religious institutions. That is different from the abstract treatment of learning as nothing but a discourse of speech. Marci --Original Message-- From: Volokh, Eugene Sender: religionlaw-boun...@lists.ucla.edu To: Law Religion issues for Law Academics ReplyTo: Law Religion issues for Law Academics Sent: May 4, 2009 7:41 PM Subject: RE: Bowman v. U.S. What exactly is it about government-funded education directed at future careers that keeps it from being pure speech? It presumably wouldn't just be the government funding, since that was at issue in Rosenberger as well. I take it the theory must be that education is somehow more than just pure speech, in constitutionally significant ways. But why, especially when we're talking about education that basically just involves talking, rather than science labs, football games, and the like? Marci Hamilton writes: In any event, this is not pure speech -- it is government funding education directed at future careers. ___ 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. Sent from my Verizon Wireless BlackBerry ___ 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.
RE: Bowman v. U.S.
Liberty Counsel had a case such as the one Marc describes. It settled favorably. Here is the Liberty Counsel press release concerning the settlement of the case: January 29, 2008 School Board Settles Lawsuit By Amending Policy and Accepting Student’s Community Service Hours at Church Long Beach, CA – The Long Beach District School Board has approved a settlement agreement with Christopher Rand, a high school student who was denied credit for community service hours he completed at his church. Chris has now received full credit for the hours. The district administration also rewrote its community service learning policy to allow students to complete mandatory community service hours at either secular or religious organizations, including churches, on the same terms. In October 2007, Liberty Counsel filed a lawsuit against the district because Chris’s school refused to grant credit for more than 70 hours of community service, solely because it was performed at Long Beach Alliance Church. He interacted with the children in the church’s programs, answered questions, assisted with crafts and art projects, supervised activity time to help ensure safety, and performed other duties. After Chris submitted the required documentation regarding his volunteer service, he was denied credit because the district’s prior community service learning policy stated, “Service to your religious community does not count.” If Christopher had given the same service in a secular school or in a nonreligious childcare program, his service would have been credited. Shortly after Liberty Counsel filed suit, the district agreed to award Chris credit for the full 72.5 hours that had previously been rejected. In addition to giving Chris credit for his community service, the district accepted input from Liberty Counsel in revising its policy to comply with the First Amendment. Under the new policy, religious organizations will receive the same treatment as other nonprofit organizations in terms of the types of community service work that is permitted. Students are expressly allowed to supervise and assist with leading organized children’s activities, such as those performed by Chris. The district also agreed to pay attorney’s fees and costs to Liberty Counsel. Mathew D. Staver, Founder of Liberty Counsel and Dean of Liberty University School of Law, commented: “When community service is a graduation requirement, schools cannot limit service to secular venues. Discrimination against performing community service for religious organizations violates the First Amendment and offends the rich religious heritage that made this country great.” Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 --- On Tue, 5/5/09, Marc Stern mst...@ajcongress.org wrote: From: Marc Stern mst...@ajcongress.org Subject: RE: Bowman v. U.S. To: hamilto...@aol.com, Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Tuesday, May 5, 2009, 7:25 AM Would the result be the same if a school required community service, but prohibited students from fulfilling that obligation in a religious setting, or excluding say Sunday school teaching from the list of permissible placements? Marc Stern -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, May 04, 2009 7:51 PM To: Law Religion issues for Law Academics Subject: Re: Bowman v. U.S. While speech is involved in the classroom, career preparation is more involved than just speech. The state is not simply handing out funds for the sheer joy of learning or enriching discourse. The state funding of ministers or rabbis for that matter is a direct and knowing benefit to religious institutions. That is different from the abstract treatment of learning as nothing but a discourse of speech. Marci --Original Message-- From: Volokh, Eugene Sender: religionlaw-boun...@lists.ucla.edu To: Law Religion issues for Law Academics ReplyTo: Law Religion issues for Law Academics Sent: May 4, 2009 7:41 PM Subject: RE: Bowman v. U.S. What exactly is it about government-funded education directed at future careers that keeps it from being pure speech? It presumably wouldn't just be the government funding, since that was at issue in Rosenberger as well. I take it the theory must be that education is somehow more than just pure speech, in constitutionally significant ways. But why, especially when we're talking about education that basically just involves talking, rather than science labs, football games, and the like? Marci Hamilton writes: In any event, this is not pure speech -- it is government funding education directed at future careers. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin
Re: Bowman v. U.S.
Bob Tuttle and I prepared an extended analysis (for the Roundtable on Religion and Social Welfare Policy) on Bowman v. U.S. at the time of the district court's decision in the case. The government's position seemed quite out of line with the GWB Faith-Based Initiative, but the outcome does seem correct under Locke v. Davey. And this is a program for retirement credit for former members of the Armed Forces -- hard to see any better free speech claim here than there was in Locke (where the claim was summarily rejected). Our analysis is here: http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=62 Chip Original message Date: Mon, 4 May 2009 09:41:16 -0700 From: Volokh, Eugene vol...@law.ucla.edu Subject: Bowman v. U.S. To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Any thoughts on Bowman v. U.S., a Sixth Circuit case decided last December but just redesignated two weeks ago as being for publication? Federal law allows a wide range of public and community service by military personnel - including working for organizations that provide elementary, secondary, or postsecondary school teaching, or any other public or community service -- to count toward [one's] years of service needed to obtain a full twenty-year military retirement. But the program excludes participation in activities of organizations engaged in religious activities, unless such activities are unrelated to religious instructions, worship services, or any form of proselytization (as well as in activities of for-profit businesses, labor unions, and partisan political organizations). Thus, for instance, if someone were volunteering to teach in a school program aimed at spreading various controversial views on environmental responsibility, or social justice, or civil liberties, that would presumably count. But if someone were volunteering to teach in a school program aimed at spreading religious views, that would not count. The Sixth Circuit upheld this against a Free Exercise Clause challenge, citing Locke v. Davey. Is that right? What should the result have been under the Free Speech Clause, if such a claim had been made (presumably relying on Rosenberger)? Eugene ___ 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. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ 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: Bowman v. U.S.
How would you all analyze the Free Speech Clause issue in a case that was like Bowman except the exclusion covered participation in activities of schools or organizations teaching or advocating about the need to reduce global warming or about marriage from a gay rights perspective? Would it violate the Free Speech Clause to allow military service personnel to accumulate pension rights via volunteer service in all non-profits except those excluded in the hypo above? If so, don't we have the same free speech issue when the exclusion concerns volunteering for schools teaching from a religious perspective? Again, if the dictum in Locke v. Davey applies, it applies to these secular speech exclusions as well, since Rehnquist merely concluded that a scholarship is not a forum triggering the Free Speech Clause. So, under Davey, a scholarship exclusion for students majoring in gender studies from a feminist perspective would also have failed to trigger the Free Speech Clause. If this seems wrong, it is because it does indeed implicate the FSC to take the viewpoint of the major into account when awarding scholarships such as the Promise Scholarship. The Rehnquist dictum in Davey is both unreasoned and wrong. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 --- On Mon, 5/4/09, Volokh, Eugene vol...@law.ucla.edu wrote: From: Volokh, Eugene vol...@law.ucla.edu Subject: Bowman v. U.S. To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Monday, May 4, 2009, 9:41 AM Any thoughts on Bowman v. U.S., a Sixth Circuit case decided last December but just redesignated two weeks ago as being for publication? Federal law allows a wide range of public and community service by military personnel - including working for organizations that provide elementary, secondary, or postsecondary school teaching, or any other public or community service -- to count toward [one's] years of service needed to obtain a full twenty-year military retirement. But the program excludes participation in activities of organizations engaged in religious activities, unless such activities are unrelated to religious instructions, worship services, or any form of proselytization (as well as in activities of for-profit businesses, labor unions, and partisan political organizations). Thus, for instance, if someone were volunteering to teach in a school program aimed at spreading various controversial views on environmental responsibility, or social justice, or civil liberties, that would presumably count. But if someone were volunteering to teach in a school program aimed at spreading religious views, that would not count. The Sixth Circuit upheld this against a Free Exercise Clause challenge, citing Locke v. Davey. Is that right? What should the result have been under the Free Speech Clause, if such a claim had been made (presumably relying on Rosenberger)? Eugene ___ 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.
Re: Bowman v. U.S.
And how would you, Rick, analyze the free speech issue if the the exclusion covered: participation in activities of organizations teaching about, counseling, advocating, or performing abortions? In Locke, and in the abortion case, and in your hypothetical, the government must only have a non-arbitrary reason for the exclusion. In Locke, the non-arbitrary reason had to do with not funding the training of clergy; in my hypothetical, the reason would be just like that in Rust v. Sullivan and its progeny (that the government is pro-life, and does not want its resources to support a certain cause, thought immoral by many citizens). Perhaps your hypothetical would similarly be OK, particularly on the gay marriage point. Excluding organizations that teach about the need to reduce global warming is a bit tougher, but not much -- the cause is controversial, and the state does not want to be creating incentives for people to advance that cause. They remain free to advance it with their own resources. In Bowman, the non-arbitrary reason for exclusion is not so easy to find, but perhaps it is designed to keep the government away from the question of whether a particular religious organization serves any public good (the organization might get a tax exemption, but those who help it can't get this sort of credit toward a military pension). If all religions must be included in the retirement credit system, perhaps the government would be a bit stingier in recognizing a religion for tax exemption purposes. That doesn't sound to me like a healthy constitutional trade-off. The rule upheld in Bowman is a product of a now abandoned constitutional regime, which is why Bob Tuttle and I were surprised that DoD still had this rule, and that DOJ defended it. But its provenance does not make it unconstitutional, especially in light of Locke. Chip Original message Date: Mon, 4 May 2009 12:38:43 -0700 (PDT) From: Rick Duncan nebraskalawp...@yahoo.com Subject: Re: Bowman v. U.S. To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu How would you all analyze the Free Speech Clause issue in a case that was like Bowman except ? Would it violate the Free Speech Clause to allow military service personnel to accumulate pension rights via volunteer service in all non-profits except those excluded in the hypo above? If so, don't we have the same free speech issue when the exclusion concerns volunteering for schools teaching from a religious perspective? Again, if the dictum in Locke v. Davey applies, it applies to these secular speech exclusions as well, since Rehnquist merely concluded that a scholarship is not a forum triggering the Free Speech Clause. So, under Davey, a scholarship exclusion for students majoring in gender studies from a feminist perspective would also have failed to trigger the Free Speech Clause. If this seems wrong, it is because it does indeed implicate the FSC to take the viewpoint of the major into account when awarding scholarships such as the Promise Scholarship. The Rehnquist dictum in Davey is both unreasoned and wrong. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 --- On Mon, 5/4/09, Volokh, Eugene vol...@law.ucla.edu wrote: From: Volokh, Eugene vol...@law.ucla.edu Subject: Bowman v. U.S. To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Monday, May 4, 2009, 9:41 AM Any thoughts on Bowman v. U.S., a Sixth Circuit case decided last December but just redesignated two weeks ago as being for publication? Federal law allows a wide range of public and community service by military personnel - including working for organizations that provide elementary, secondary, or postsecondary school teaching, or any other public or community service -- to count toward [one's] years
Re: Bowman v. U.S.
But Doug, Rehnquist's dictum was completely unreasoned. He merely asserted that a scholarship program is not a speech forum in a case that presented only Free Exercise questions. Why not? Why is the scholarship program closer to Rust than to Rosenberger? Rehnquist doesn't even hint at an answer. Thus, if the facts of Davey were re-litigated tomorrow, and the Free Sp issue were clearly before the Ct, it is almost a case of first impression. The dictum in Davey doesn't change the fact that the Ct has never explained why viewpoint restrictions in scholarships do not trigger serious Free Sp scrutiny. So my hypos force the issue; and no one seems to like the answer that a scholarship exclusion for students majoring in gender studies from a feminist perspective does not even trigger serious scrutiny under the Free Sp Cl. It ought to. And if the case came before the Ct, Davey would not preclude the issue. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 ___ 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: Bowman v. U.S.
In a message dated 5/4/09 7:14:29 PM, nebraskalawp...@yahoo.com writes: no one seems to like the answer that a scholarship exclusion for students majoring in gender studies from a feminist perspective does not even trigger serious scrutiny under the Free Sp Cl. I'm not sure where I come out on this, but does your position mean that if Big State U. sets up a Department of Peace Studies it also has to set up a Department of War Studies? If an alumnus donates money to create a chair for the study of democratic institutions, the university can't accept those funds unless it also finds funds for a chair for the study of totalitarian institutions? If there's a scholarship for a student majoring in dispute resolution, there must also be a scholarship for a student majoring in dispute fomentation?Why are these examples of private speech rather than of government subsidy for the speech (and only the speech) it wishes to promote? Art Spitzer (employed by but not speaking for the ACLU) ** 2009 3 Free CREDIT SCORES: See Your 3 Credit Scores from All 3 Bureaus FREE! (http://pr.atwola.com/promoclk/100126575x1221797372x1201397989/aol?redir=https:%2F %2Fwww.freescore.com%2FOffers%2FStart%2FFreeCreditReportAndScore.aspx%3FID%3 D91831F371F138345B53A153F49D4D872%26siteid%3De927580bf7) ___ 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: Bowman v. U.S.
I disagree with Rick's analysis as well. The decision rested in no small part on Establishment Clause values with a long historical pedigree starting with James Madison. Government funding of the education of ministers is as close to establishment of religion as you can get short of the sorts of establishments in place during the founding era. It would have been ahistorical to have decided the case purely on free speech grounds. In any event, this is not pure speech -- it is government funding education directed at future careers. That was not the issue in either Rust or Rosenberger, where speech was at least arguably a major element of the policy challenged. Rick is sounding like the movement that would define away the Establishment Clause by making every potential disestablishment case an individual rights case (whether free exercise or speech). Rosenberger was a 5 to 4 decision that divided on that fault line -- with the majority speaking in speech terms and the dissent in est cl terms. The closeness of that decision and the preceding est cl case law combined with the history should have made Davey a toss-up and not the slam dunk some seem to think it should have been. This relates to the orthodoxy point I made yesterday. Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Rick Duncan nebraskalawp...@yahoo.com Date: Mon, 4 May 2009 16:13:38 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: Re: Bowman v. U.S. ___ 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.
RE: Bowman v. U.S.
What exactly is it about government-funded education directed at future careers that keeps it from being pure speech? It presumably wouldn't just be the government funding, since that was at issue in Rosenberger as well. I take it the theory must be that education is somehow more than just pure speech, in constitutionally significant ways. But why, especially when we're talking about education that basically just involves talking, rather than science labs, football games, and the like? Marci Hamilton writes: In any event, this is not pure speech -- it is government funding education directed at future careers. ___ 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: Bowman v. U.S.
While speech is involved in the classroom, career preparation is more involved than just speech. The state is not simply handing out funds for the sheer joy of learning or enriching discourse. The state funding of ministers or rabbis for that matter is a direct and knowing benefit to religious institutions. That is different from the abstract treatment of learning as nothing but a discourse of speech. Marci --Original Message-- From: Volokh, Eugene Sender: religionlaw-boun...@lists.ucla.edu To: Law Religion issues for Law Academics ReplyTo: Law Religion issues for Law Academics Sent: May 4, 2009 7:41 PM Subject: RE: Bowman v. U.S. What exactly is it about government-funded education directed at future careers that keeps it from being pure speech? It presumably wouldn't just be the government funding, since that was at issue in Rosenberger as well. I take it the theory must be that education is somehow more than just pure speech, in constitutionally significant ways. But why, especially when we're talking about education that basically just involves talking, rather than science labs, football games, and the like? Marci Hamilton writes: In any event, this is not pure speech -- it is government funding education directed at future careers. ___ 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. Sent from my Verizon Wireless BlackBerry ___ 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: Bowman v. U.S.
Marci has to be right here. Deciding what is speech for first amendment purposes has to involve more than just the fact that an activity involves a lot of talking. Sermons from the pulpit are talking, so is the practice of psychotherapy, most of what lawyers do, and a lot of what doctors do. Analyzing regulations of all these activities under a free speech paradigm isn't going to work. Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, May 04, 2009 4:51 PM To: Law Religion issues for Law Academics Subject: Re: Bowman v. U.S. While speech is involved in the classroom, career preparation is more involved than just speech. The state is not simply handing out funds for the sheer joy of learning or enriching discourse. The state funding of ministers or rabbis for that matter is a direct and knowing benefit to religious institutions. That is different from the abstract treatment of learning as nothing but a discourse of speech. Marci --Original Message-- From: Volokh, Eugene Sender: religionlaw-boun...@lists.ucla.edu To: Law Religion issues for Law Academics ReplyTo: Law Religion issues for Law Academics Sent: May 4, 2009 7:41 PM Subject: RE: Bowman v. U.S. What exactly is it about government-funded education directed at future careers that keeps it from being pure speech? It presumably wouldn't just be the government funding, since that was at issue in Rosenberger as well. I take it the theory must be that education is somehow more than just pure speech, in constitutionally significant ways. But why, especially when we're talking about education that basically just involves talking, rather than science labs, football games, and the like? Marci Hamilton writes: In any event, this is not pure speech -- it is government funding education directed at future careers. ___ 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. Sent from my Verizon Wireless BlackBerry ___ 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.
RE: Bowman v. U.S.
I'm still not sure what it is that makes classroom speech more than just speech for First Amendment purposes. One suggestion in the following is the state's instrumental motive in funding the speech -- but that's about the state's motive, not about whether classroom teaching is or is not speech. Beyond this, say that the situation involved not restriction on religious speech but on, say, feminist speech or anti-war speech or environmentalist speech or what have you. Would we say that it's OK for the government to, for instance, refuse to allow federal funds to any programs that teach pacifism or feminism or environmentalism, on the grounds that classroom teaching is somehow more than just speech? Another suggestion is that perhaps career preparation is somehow less speech than, say, a liberal arts education. That's actually not in play in the Bowman regulation, since it's hardly limited to career preparation speech. But even in a case where someone is getting a vocational education, what exactly is the basis for saying that teaching someone how to be a minister, or how to be a schoolteacher, or how to be an artist, or how to be a lawyer is less constitutionally protected than other speech? This is very important, of course, since it directly affects the degree to which the government can impose condition on the wide range of benefits -- from tax exemptions to student loans to whatever else -- that it offers to private universities, private schools, and other institutions. That general free speech question arises far outside the context of religious proselytizing. If classroom speech in private (but indirectly government-funded) classrooms is somehow specially regulable for First Amendment purposes, either in general or when it involves career preparation, then that's a very important doctrine, the boundaries of which need to be made clear. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, May 04, 2009 4:51 PM To: Law Religion issues for Law Academics Subject: Re: Bowman v. U.S. While speech is involved in the classroom, career preparation is more involved than just speech. The state is not simply handing out funds for the sheer joy of learning or enriching discourse. The state funding of ministers or rabbis for that matter is a direct and knowing benefit to religious institutions. That is different from the abstract treatment of learning as nothing but a discourse of speech. Marci --Original Message-- From: Volokh, Eugene Sender: religionlaw-boun...@lists.ucla.edu To: Law Religion issues for Law Academics ReplyTo: Law Religion issues for Law Academics Sent: May 4, 2009 7:41 PM Subject: RE: Bowman v. U.S. What exactly is it about government-funded education directed at future careers that keeps it from being pure speech? It presumably wouldn't just be the government funding, since that was at issue in Rosenberger as well. I take it the theory must be that education is somehow more than just pure speech, in constitutionally significant ways. But why, especially when we're talking about education that basically just involves talking, rather than science labs, football games, and the like? Marci Hamilton writes: In any event, this is not pure speech -- it is government funding education directed at future careers. ___ 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. Sent from my Verizon Wireless BlackBerry ___ 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
Re: Bowman v. U.S.
Art Spitzer asks some great questions: I'm not sure where I come out on this, but does your position mean that if Big State U. sets up a Department of Peace Studies it also has to set up a Department of War Studies? If an alumnus donates money to create a chair for the study of democratic institutions, the university can't accept those funds unless it also finds funds for a chair for the study of totalitarian institutions? If there's a scholarship for a student majoring in dispute resolution, there must also be a scholarship for a student majoring in dispute fomentation? Why are these examples of private speech rather than of government subsidy for the speech (and only the speech) it wishes to promote? I think that the govt can say whatever it wants to say when it is the speaker. Thus, the University of Nebraska can set up a Dept of Peace if that is what it wishes to do. Its curriculum is its own speech, so it can adopt a particular viewpoint if that is what it wishes to do. Moreover, the govt could probably fund a scholarship only for certain subjects (as opposed to certain viewpoints)--such as a scholarship for nursing majors or education majors. This would probably best be considered a non-public forum in which content restrictions are permitted, but viewpoint restrictions are prohibited. The problem in Davey was that Washington created a general scholarship covering all majors including theology majors and excluded only one viewpoint--devotional theology majors (those majoring in theology from a believing perspective as opposed to an agnostic perspective). This amounts to viewpoint discrimination in a forum for private educative speech--this is not a Rust govt speech case, it is more like a Rosenberger case in which govt is seeking to facilitate the private speech of citizens who have qualified for a generally available scholarship on the basis of objective characteristics (GPA and family income). Thus, viewpoint discrimination is forbidden. It is the clear viewpoint discrimination that make the hypos I pose seem so clearly unconstitutional--a scholarship for all students except those who major in gender studies from a feminist perspective, or except those who major in economics from a socialist perspective. Would anyone on the list uphold such viewpoint restrictions on scholarships? Rehnquist's unreasoned Fr Sp dictum in Davey, a Fr Ex case, should not preclude the issue from being considered in a future case in which the Fr Sp issue is part of the question presented. The test suites I propose make Rehnquist's non-analysis in Davey cry out for full and fair reconsideration. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 ___ 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: Bowman v. U.S.
Thanks for the compliment, Rick. I can see how funding a Department of X, or a Chair of X Studies, could be characterized as funding the speech of one or more professors about X. But it's hard for me to see how funding a scholarship for students who study X amounts to funding the student's speech about X, or about anything. The students aren't being paid to speak (unless, I suppose, their course of study is drama or rhetoric). Why is receiving a scholarship a form of private speech? Is receiving a tax refund a form of speech? Art In a message dated 5/4/09 11:41:55 PM, nebraskalawp...@yahoo.com writes: Art Spitzer asks some great questions: I'm not sure where I come out on this, but does your position mean that if Big State U. sets up a Department of Peace Studies it also has to set up a Department of War Studies? If an alumnus donates money to create a chair for the study of democratic institutions, the university can't accept those funds unless it also finds funds for a chair for the study of totalitarian institutions? If there's a scholarship for a student majoring in dispute resolution, there must also be a scholarship for a student majoring in dispute fomentation? Why are these examples of private speech rather than of government subsidy for the speech (and only the speech) it wishes to promote? I think that the govt can say whatever it wants to say when it is the speaker. Thus, the University of Nebraska can set up a Dept of Peace if that is what it wishes to do. Its curriculum is its own speech, so it can adopt a particular viewpoint if that is what it wishes to do. Moreover, the govt could probably fund a scholarship only for certain subjects (as opposed to certain viewpoints)--such as a scholarship for nursing majors or education majors. This would probably best be considered a non-public forum in which content restrictions are permitted, but viewpoint restrictions are prohibited. The problem in Davey was that Washington created a general scholarship covering all majors including theology majors and excluded only one viewpoint--devotional theology majors (those majoring in theology from a believing perspective as opposed to an agnostic perspective). This amounts to viewpoint discrimination in a forum for private educative speech--this is not a Rust govt speech case, it is more like a Rosenberger case in which govt is seeking to facilitate the private speech of citizens who have qualified for a generally available scholarship on the basis of objective characteristics (GPA and family income). Thus, viewpoint discrimination is forbidden. It is the clear viewpoint discrimination that make the hypos I pose seem so clearly unconstitutional--a scholarship for all students except those who major in gender studies from a feminist perspective, or except those who major in economics from a socialist perspective. Would anyone on the list uphold such viewpoint restrictions on scholarships? Rehnquist's unreasoned Fr Sp dictum in Davey, a Fr Ex case, should not preclude the issue from being considered in a future case in which the Fr Sp issue is part of the question presented. The test suites I propose make Rehnquist's non-analysis in Davey cry out for full and fair reconsideration. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 ___ 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. ** 2009 3 Free CREDIT SCORES: See Your 3 Credit Scores from All 3 Bureaus FREE! (http://pr.atwola.com/promoclk/100126575x1221797372x1201397989/aol?redir=https:%2F%2Fwww.freescore.com%2FOffers%2FStart%2FFreeCreditRepor tAndScore.aspx%3FID%3D91831F371F138345B53A153F49D4D872%26siteid%3De927580bf7 ) ___ 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: Bowman v. U.S.
Art writes: But it's hard for me to see how funding a scholarship for students who study X amounts to funding the student's speech about X, or about anything. The students aren't being paid to speak (unless, I suppose, their course of study is drama or rhetoric). Why is receiving a scholarship a form of private speech? Is receiving a tax refund a form of speech? I guess I look at a college scholarship as govt facilitating students opportunity to receive educative speech from the college and major of their choosing (but providing that one major from a particular viewpoint is excluded). A college education consists of students listening to educative speech, reading books, speaking out in class discussions, writing papers, and generally engaging in a whole host of expressive activities at the core of free speech. What about a govt program funding free movie tickets to needy citizens but providing that the tickets could not be used to attend a movie that expressed an anti-war point of view? Or govt providing vouchers for needy citizens to purchase newspapers but providing that the voucher could not be used to purchase a newspaper that had an editorial position in favor of same-sex marriage? Or govt providing a tax credit for the purchase of books except books expressing a viewpoint supporting abortion rights? In all of these cases, Art, assume the citizen eligible for the free tickets, newspaper voucher, or tax credit walked into your office and asked you if they have a claim under the Free Sp Cl. What would you advise them? Cheers, Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.--Ben Franklin (perhaps misattributed, but still worthy of Franklin) It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. --- On Mon, 5/4/09, artspit...@aol.com artspit...@aol.com wrote: From: artspit...@aol.com artspit...@aol.com Subject: Re: Bowman v. U.S. To: religionlaw@lists.ucla.edu Date: Monday, May 4, 2009, 8:59 PM Thanks for the compliment, Rick. I can see how funding a Department of X, or a Chair of X Studies, could be characterized as funding the speech of one or more professors about X. But it's hard for me to see how funding a scholarship for students who study X amounts to funding the student's speech about X, or about anything. The students aren't being paid to speak (unless, I suppose, their course of study is drama or rhetoric). Why is receiving a scholarship a form of private speech? Is receiving a tax refund a form of speech? Art In a message dated 5/4/09 11:41:55 PM, nebraskalawp...@yahoo.com writes: Art Spitzer asks some great questions: I'm not sure where I come out on this, but does your position mean that if Big State U. sets up a Department of Peace Studies it also has to set up a Department of War Studies? If an alumnus donates money to create a chair for the study of democratic institutions, the university can't accept those funds unless it also finds funds for a chair for the study of totalitarian institutions? If there's a scholarship for a student majoring in dispute resolution, there must also be a scholarship for a student majoring in dispute fomentation? Why are these examples of private speech rather than of government subsidy for the speech (and only the speech) it wishes to promote? I think that the govt can say whatever it wants to say when it is the speaker. Thus, the University of Nebraska can set up a Dept of Peace if that is what it wishes to do. Its curriculum is its own speech, so it can adopt a particular viewpoint if that is what it wishes to do. Moreover, the govt could probably fund a scholarship only for certain subjects (as opposed to certain viewpoints)--such as a scholarship for nursing majors or education majors. This would probably best be considered a non-public forum in which content restrictions are permitted, but viewpoint restrictions are prohibited. The problem in Davey was that Washington created a general scholarship covering all majors including theology majors and excluded only one viewpoint--devotional theology majors (those majoring in theology from a believing perspective as opposed to an agnostic perspective). This amounts to viewpoint discrimination in a forum for private educative speech--this is not a Rust govt speech case, it is more like a Rosenberger case in which govt is seeking to facilitate the private speech of citizens who have qualified for a generally available scholarship on the basis of objective characteristics (GPA and family
