RE: Lesser protection for religious advocacy
What about the following rule in a school. You can talk about each other's clothes and appearance, but nobody can be called ugly. Seems to be an elementary school could have that rule even though it is clearly viewpoint based discrimination. MAG Gene Summerlin [EMAIL PROTECTED] 11/09/04 11:45 PM To respond in a bit more detail to Mark's objection, I don't think the issue is really whether the students can proselytize per se, because the situation described here involved speech that occurred either before or after class as I understood it. Therefore, the issue is really whether the students can be prohibited from discussing religion during private conversations in non-class time. (I agree that the school could prohibit all leafleting, so long as it was not limited to certain topics). However, can the school say, yes, you can discuss religion or theology, but not in a manner in which you attempt to convert someone else to your view. If that is the prohibition being proposed, then that seems to be clear viewpoint based discrimination on speech, and I fail to understand the First Amendment underpinnings that would justify such a restriction. Gene Summerlin Ogborn, Summerlin Ogborn, P.C. 210 Windsor Place 330 South 10th St. Lincoln, NE 68508 402.434.8040 402.434.8044 (FAX) 402.730.5344 (Mobile) www.osolaw.com [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Mark Graber Sent: Tuesday, November 09, 2004 5:39 PM To: [EMAIL PROTECTED] Subject: RE: Lesser protection for religious advocacy Obviously overbroad. Students may clearly ask, who is the present Pope? The issue is whether students may proselytize. MAG Gene Summerlin [EMAIL PROTECTED] 11/09/04 6:18 PM Professor Newsome, Would it be constitutional, in your opinion, for a school to pass and enforce a rule which stated, Students may not discuss any matters relating to religion or theology while on school grounds, whether such discussions occur as part of a class discussion or as part of a private conversation between students and/or faculty. Gene Summerlin Ogborn, Summerlin Ogborn, P.C. 210 Windsor Place 330 South 10th St. Lincoln, NE 68508 402.434.8040 402.434.8044 (FAX) 402.730.5344 (Mobile) www.osolaw.com [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Newsom Michael Sent: Tuesday, November 09, 2004 3:25 PM To: Law Religion issues for Law Academics Subject: RE: Lesser protection for religious advocacy Well that is the question. Some people believe that schools should not be religious-free zones, and one of their arguments in support of that position -- apart from Protestant Empire imperatives -- is what I think is a wholly exaggerated and unwarranted view of what the Free Speech clause requires. -Original Message- From: Mark Graber [mailto:[EMAIL PROTECTED] Sent: Friday, November 05, 2004 6:03 PM To: [EMAIL PROTECTED] Subject: Re: Lesser protection for religious advocacy but schools are religious-free zones. MAG ___ To post, send message to [EMAIL PROTECTED] 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 [EMAIL PROTECTED] 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 [EMAIL PROTECTED] 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 [EMAIL PROTECTED] 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: Lesser protection for religious advocacy
Mark, That's a very good point. Of course, the school could justify the no calling people ugly rule based on the fact that name calling does not contribute to or advance the academic mission or environment of the school. Discussions of theology or religion, on the other hand, would seem to be more in line with the academic purpose of provoking critical thinking skills, so should that make a difference? In thinking about how a no religous discussions or even a no prostelytizing rule would work at a high school level, would it be acceptable for a school to discipline a high school student who raised divine creation as an alternative in a class room discussion of evolution? Gene Summerlin Ogborn Summerlin Ogborn P.C. 210 Windsor Place 330 So. 10th St. Lincoln, NE 68508 (402) 434-8040 (402) 434-8044 (FAX) (402) 730-5344 (Mobile) www.osolaw.com [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Mark Graber Sent: Wednesday, November 10, 2004 8:02 AM To: [EMAIL PROTECTED] Subject: RE: Lesser protection for religious advocacy What about the following rule in a school. You can talk about each other's clothes and appearance, but nobody can be called ugly. Seems to be an elementary school could have that rule even though it is clearly viewpoint based discrimination. MAG Gene Summerlin [EMAIL PROTECTED] 11/09/04 11:45 PM To respond in a bit more detail to Mark's objection, I don't think the issue is really whether the students can proselytize per se, because the situation described here involved speech that occurred either before or after class as I understood it. Therefore, the issue is really whether the students can be prohibited from discussing religion during private conversations in non-class time. (I agree that the school could prohibit all leafleting, so long as it was not limited to certain topics). However, can the school say, yes, you can discuss religion or theology, but not in a manner in which you attempt to convert someone else to your view. If that is the prohibition being proposed, then that seems to be clear viewpoint based discrimination on speech, and I fail to understand the First Amendment underpinnings that would justify such a restriction. Gene Summerlin Ogborn, Summerlin Ogborn, P.C. 210 Windsor Place 330 South 10th St. Lincoln, NE 68508 402.434.8040 402.434.8044 (FAX) 402.730.5344 (Mobile) www.osolaw.com [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Mark Graber Sent: Tuesday, November 09, 2004 5:39 PM To: [EMAIL PROTECTED] Subject: RE: Lesser protection for religious advocacy Obviously overbroad. Students may clearly ask, who is the present Pope? The issue is whether students may proselytize. MAG Gene Summerlin [EMAIL PROTECTED] 11/09/04 6:18 PM Professor Newsome, Would it be constitutional, in your opinion, for a school to pass and enforce a rule which stated, Students may not discuss any matters relating to religion or theology while on school grounds, whether such discussions occur as part of a class discussion or as part of a private conversation between students and/or faculty. Gene Summerlin Ogborn, Summerlin Ogborn, P.C. 210 Windsor Place 330 South 10th St. Lincoln, NE 68508 402.434.8040 402.434.8044 (FAX) 402.730.5344 (Mobile) www.osolaw.com [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Newsom Michael Sent: Tuesday, November 09, 2004 3:25 PM To: Law Religion issues for Law Academics Subject: RE: Lesser protection for religious advocacy Well that is the question. Some people believe that schools should not be religious-free zones, and one of their arguments in support of that position -- apart from Protestant Empire imperatives -- is what I think is a wholly exaggerated and unwarranted view of what the Free Speech clause requires. -Original Message- From: Mark Graber [mailto:[EMAIL PROTECTED] Sent: Friday, November 05, 2004 6:03 PM To: [EMAIL PROTECTED] Subject: Re: Lesser protection for religious advocacy but schools are religious-free zones. MAG ___ To post, send message to [EMAIL PROTECTED] 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 [EMAIL PROTECTED] 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
RE: Lesser protection for religious advocacy
I agree that the application of the principle has to be carefully thought through. I think that the totality of the facts in the particular case control the application. We have long understood that the rules that apply in the common schools are different than the rules that apply elsewhere. In that context, one can safely say that the schools cannot, by inaction, permit this sort of targeted leafleting. There is no slippery slope here unless the Supreme Court cases on religion in schools are all wrong. -Original Message- From: Scarberry, Mark [mailto:[EMAIL PROTECTED] Sent: Tuesday, November 09, 2004 5:24 PM To: 'Law Religion issues for Law Academics' Subject: RE: Lesser protection for religious advocacy The idea that the govt is responsible for all that it does not prohibit must be treated with great care. It has the potential of making govt responsible for all of life, and of eliminating the sphere of private action. Taken far enough, it is totalitarian. Thus, for example, the argument I heard at one AALS section meeting that Catholic refusal to ordain women as priests violates the 14th Amendment, because the govt's refusal to extend anti-discrim laws to churches results in church discrimination being state action. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: marc stern [mailto:[EMAIL PROTECTED] Sent: Tuesday, November 09, 2004 2:14 PM To: 'Law Religion issues for Law Academics' Subject: RE: Lesser protection for religious advocacy That the failure to regulate might constitute state action-as in failing to ban private segregation- was one of the most hotly contested issues of the mid-sixties civil right litigationTHE Supreme court ,if my memories of law school are reliable, always dodged the question. It largely became moot as a result of the 1964 civil rights act. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Tuesday, November 09, 2004 5:05 PM To: [EMAIL PROTECTED] Subject: Re: Lesser protection for religious advocacy In a message dated 11/9/2004 5:00:06 PM Eastern Standard Time, [EMAIL PROTECTED] writes: Can't the state regulate the use of its property? Can't one say that failure to do so might amount to state action? Seems at least plausible that if you can make that work, you can find state action in the failure of a local government agency to prevent assaults on public sidewalks. After all, they are public property. Jim Henderson Senior Counsel ACLJ ___ To post, send message to [EMAIL PROTECTED] 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: Lesser protection for religious advocacy
Could you please explain the relevance of this hypothetical to the targeted leafleting that served as the genesis of this thread? I guess that you are going to have to explain to me what discuss means. -Original Message- From: Gene Summerlin [mailto:[EMAIL PROTECTED] Sent: Tuesday, November 09, 2004 6:18 PM To: Law Religion issues for Law Academics Subject: RE: Lesser protection for religious advocacy Professor Newsome, Would it be constitutional, in your opinion, for a school to pass and enforce a rule which stated, Students may not discuss any matters relating to religion or theology while on school grounds, whether such discussions occur as part of a class discussion or as part of a private conversation between students and/or faculty. Gene Summerlin Ogborn, Summerlin Ogborn, P.C. 210 Windsor Place 330 South 10th St. Lincoln, NE 68508 402.434.8040 402.434.8044 (FAX) 402.730.5344 (Mobile) www.osolaw.com [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Newsom Michael Sent: Tuesday, November 09, 2004 3:25 PM To: Law Religion issues for Law Academics Subject: RE: Lesser protection for religious advocacy Well that is the question. Some people believe that schools should not be religious-free zones, and one of their arguments in support of that position -- apart from Protestant Empire imperatives -- is what I think is a wholly exaggerated and unwarranted view of what the Free Speech clause requires. -Original Message- From: Mark Graber [mailto:[EMAIL PROTECTED] Sent: Friday, November 05, 2004 6:03 PM To: [EMAIL PROTECTED] Subject: Re: Lesser protection for religious advocacy but schools are religious-free zones. MAG ___ To post, send message to [EMAIL PROTECTED] 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 [EMAIL PROTECTED] 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 [EMAIL PROTECTED] 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: Lesser protection for religious advocacy
You seriously want me to explain what discuss means?!? It means to talk about. I'm not aware of other hidden or technical meanings attributed to the term. Gene Summerlin Ogborn, Summerlin Ogborn, P.C. 210 Windsor Place 330 South 10th St. Lincoln, NE 68508 402.434.8040 402.434.8044 (FAX) 402.730.5344 (Mobile) www.osolaw.com [EMAIL PROTECTED] -Original Message- From: Newsom Michael [mailto:[EMAIL PROTECTED] Sent: Wednesday, November 10, 2004 11:01 AM To: [EMAIL PROTECTED]; Law Religion issues for Law Academics Subject: RE: Lesser protection for religious advocacy Could you please explain the relevance of this hypothetical to the targeted leafleting that served as the genesis of this thread? I guess that you are going to have to explain to me what discuss means. -Original Message- From: Gene Summerlin [mailto:[EMAIL PROTECTED] Sent: Tuesday, November 09, 2004 6:18 PM To: Law Religion issues for Law Academics Subject: RE: Lesser protection for religious advocacy Professor Newsome, Would it be constitutional, in your opinion, for a school to pass and enforce a rule which stated, Students may not discuss any matters relating to religion or theology while on school grounds, whether such discussions occur as part of a class discussion or as part of a private conversation between students and/or faculty. Gene Summerlin Ogborn, Summerlin Ogborn, P.C. 210 Windsor Place 330 South 10th St. Lincoln, NE 68508 402.434.8040 402.434.8044 (FAX) 402.730.5344 (Mobile) www.osolaw.com [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Newsom Michael Sent: Tuesday, November 09, 2004 3:25 PM To: Law Religion issues for Law Academics Subject: RE: Lesser protection for religious advocacy Well that is the question. Some people believe that schools should not be religious-free zones, and one of their arguments in support of that position -- apart from Protestant Empire imperatives -- is what I think is a wholly exaggerated and unwarranted view of what the Free Speech clause requires. -Original Message- From: Mark Graber [mailto:[EMAIL PROTECTED] Sent: Friday, November 05, 2004 6:03 PM To: [EMAIL PROTECTED] Subject: Re: Lesser protection for religious advocacy but schools are religious-free zones. MAG ___ To post, send message to [EMAIL PROTECTED] 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 [EMAIL PROTECTED] 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 [EMAIL PROTECTED] 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: Lesser protection for religious advocacy
Maybe we should separate the two questions being asked here, to wit: 1. Can't the state regulate the use of it's property?, and 2. Can't one say that failure to do so might amount to state action? Even if the answer to the latter question is, No, that still leaves the first question. Public schools are not completely open public fora, like streets, and I don't read Tinker to say otherwise. It seems to me the question boils down to how much and what type of regulation may be imposed either in the classroom or in the school but outside the classroom, given that neither school setting is a full free speech zone, and that both involve non-mature (here I think I differ with Eugene) captive audiences (given compulsory attendance). It's not entirely clear to me that messages admonishing the only-Jewish-recipients to find Jesus (assuming that's what these were) are, as someone else described them, discussions of religion or theology, or even discussions. Whether they are nevertheless protected by the Free Speech guarantee, so that a public school that chooses to curtail this private speech is prohibited from doing so, is still debatable. Does Tinker say that schools can only limit speech so inciteful that it threatens a breach of the peace? If so, how is the school different from a public street? Robin Charlow Hofstra University School of Law Hempstead, New York 11549 email: [EMAIL PROTECTED] phone (516) 463-5166 [EMAIL PROTECTED] 11/10/2004 11:58:32 AM I agree that the application of the principle has to be carefully thought through. I think that the totality of the facts in the particular case control the application. We have long understood that the rules that apply in the common schools are different than the rules that apply elsewhere. In that context, one can safely say that the schools cannot, by inaction, permit this sort of targeted leafleting. There is no slippery slope here unless the Supreme Court cases on religion in schools are all wrong. -Original Message- From: Scarberry, Mark [mailto:[EMAIL PROTECTED] Sent: Tuesday, November 09, 2004 5:24 PM To: 'Law Religion issues for Law Academics' Subject: RE: Lesser protection for religious advocacy The idea that the govt is responsible for all that it does not prohibit must be treated with great care. It has the potential of making govt responsible for all of life, and of eliminating the sphere of private action. Taken far enough, it is totalitarian. Thus, for example, the argument I heard at one AALS section meeting that Catholic refusal to ordain women as priests violates the 14th Amendment, because the govt's refusal to extend anti-discrim laws to churches results in church discrimination being state action. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: marc stern [mailto:[EMAIL PROTECTED] Sent: Tuesday, November 09, 2004 2:14 PM To: 'Law Religion issues for Law Academics' Subject: RE: Lesser protection for religious advocacy That the failure to regulate might constitute state action-as in failing to ban private segregation- was one of the most hotly contested issues of the mid-sixties civil right litigationTHE Supreme court ,if my memories of law school are reliable, always dodged the question. It largely became moot as a result of the 1964 civil rights act. Marc Stern _ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Tuesday, November 09, 2004 5:05 PM To: [EMAIL PROTECTED] Subject: Re: Lesser protection for religious advocacy In a message dated 11/9/2004 5:00:06 PM Eastern Standard Time, [EMAIL PROTECTED] writes: Can't the state regulate the use of its property? Can't one say that failure to do so might amount to state action? Seems at least plausible that if you can make that work, you can find state action in the failure of a local government agency to prevent assaults on public sidewalks. After all, they are public property. Jim Henderson Senior Counsel ACLJ ___ To post, send message to [EMAIL PROTECTED] 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: Lesser protection for religious advocacy
Context matters, and the nature of discussion matters. Certainly as a matter of first impression, I do not believe a student who raises divine creation as an alternative to evolution can be disciplined (though part of my instinct is the lack of past rules. So, in absence of a school ban on proselytizing, neither can proselytizing be disciplined. My relatively uninformed views on creation science suggest the following. 1) The scientific basis of the claim are sufficiently thin as to justify a finding that the main reason for teaching it would be to establish a religion. 2) The scientic basis is just (barely) thick enough as to permit student advocacy of that position in a science class. These, I should emphasize are more intuitions, made in the spirit of friendly conversation, that strong positions. MAG Gene Summerlin [EMAIL PROTECTED] 11/10/04 9:49 AM Mark, That's a very good point. Of course, the school could justify the no calling people ugly rule based on the fact that name calling does not contribute to or advance the academic mission or environment of the school. Discussions of theology or religion, on the other hand, would seem to be more in line with the academic purpose of provoking critical thinking skills, so should that make a difference? In thinking about how a no religous discussions or even a no prostelytizing rule would work at a high school level, would it be acceptable for a school to discipline a high school student who raised divine creation as an alternative in a class room discussion of evolution? Gene Summerlin Ogborn Summerlin Ogborn P.C. 210 Windsor Place 330 So. 10th St. Lincoln, NE 68508 (402) 434-8040 (402) 434-8044 (FAX) (402) 730-5344 (Mobile) www.osolaw.com [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Mark Graber Sent: Wednesday, November 10, 2004 8:02 AM To: [EMAIL PROTECTED] Subject: RE: Lesser protection for religious advocacy What about the following rule in a school. You can talk about each other's clothes and appearance, but nobody can be called ugly. Seems to be an elementary school could have that rule even though it is clearly viewpoint based discrimination. MAG Gene Summerlin [EMAIL PROTECTED] 11/09/04 11:45 PM To respond in a bit more detail to Mark's objection, I don't think the issue is really whether the students can proselytize per se, because the situation described here involved speech that occurred either before or after class as I understood it. Therefore, the issue is really whether the students can be prohibited from discussing religion during private conversations in non-class time. (I agree that the school could prohibit all leafleting, so long as it was not limited to certain topics). However, can the school say, yes, you can discuss religion or theology, but not in a manner in which you attempt to convert someone else to your view. If that is the prohibition being proposed, then that seems to be clear viewpoint based discrimination on speech, and I fail to understand the First Amendment underpinnings that would justify such a restriction. Gene Summerlin Ogborn, Summerlin Ogborn, P.C. 210 Windsor Place 330 South 10th St. Lincoln, NE 68508 402.434.8040 402.434.8044 (FAX) 402.730.5344 (Mobile) www.osolaw.com [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Mark Graber Sent: Tuesday, November 09, 2004 5:39 PM To: [EMAIL PROTECTED] Subject: RE: Lesser protection for religious advocacy Obviously overbroad. Students may clearly ask, who is the present Pope? The issue is whether students may proselytize. MAG Gene Summerlin [EMAIL PROTECTED] 11/09/04 6:18 PM Professor Newsome, Would it be constitutional, in your opinion, for a school to pass and enforce a rule which stated, Students may not discuss any matters relating to religion or theology while on school grounds, whether such discussions occur as part of a class discussion or as part of a private conversation between students and/or faculty. Gene Summerlin Ogborn, Summerlin Ogborn, P.C. 210 Windsor Place 330 South 10th St. Lincoln, NE 68508 402.434.8040 402.434.8044 (FAX) 402.730.5344 (Mobile) www.osolaw.com [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Newsom Michael Sent: Tuesday, November 09, 2004 3:25 PM To: Law Religion issues for Law Academics Subject: RE: Lesser protection for religious advocacy Well that is the question. Some people believe that schools should not be religious-free zones, and one of their arguments in support of that position -- apart from Protestant Empire imperatives -- is what I think is a wholly exaggerated and unwarranted view of what the Free Speech clause requires. -Original Message- From: Mark Graber [mailto:[EMAIL PROTECTED] Sent: Friday, November 05, 2004 6:03 PM To: [EMAIL PROTECTED] Subject: Re: Lesser protection for religious
Re: Lesser protection for religious advocacy
Pardon me for jumping in. I'm brand new to this list, but as my organization, Michigan Citizens for Science, is involved in questions of science curricula I thought I'd jump in on this particular discussion. It should probably be noted up front that I am not an attorney myself. Mark Graber wrote: Context matters, and the nature of discussion matters. Certainly as a matter of first impression, I do not believe a student who raises divine creation as an alternative to evolution can be disciplined (though part of my instinct is the lack of past rules. So, in absence of a school ban on proselytizing, neither can proselytizing be disciplined. My relatively uninformed views on creation science suggest the following. 1) The scientific basis of the claim are sufficiently thin as to justify a finding that the main reason for teaching it would be to establish a religion. 2) The scientic basis is just (barely) thick enough as to permit student advocacy of that position in a science class. The first statement is certainly true, there is no solid scientific basis for teaching creationism (or Intelligent Design, the more modern version of it). But it seems to me that the second statement is superfluous. Regardless of whether there is a thick enough basis for creationism, what possible legal basis could there be for actually disciplining a student for advocating it? I can understand a legal basis for disciplining a teacher for teaching it, simply as a matter of not teaching according to state or local curriculum standards, but wouldn't disciplining a student for advocating it (bringing it up in class, or handing out literature about it, etc) be a question of content-based censorship? If a student perhaps wrote a paper for a biology class advocating creationism, the teacher would certainly be within his rights to pass whatever academic judgment he sees fit on the quality of the work, and most likely to fail the student or give him a low grade, but to enact disciplinary measures for it? I can't imagine a school could or should do that. Ed Brayton ___ To post, send message to [EMAIL PROTECTED] 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: Lesser protection for religious advocacy
For this argument to stand up, one has to conclude that any conflict between the possible meaning of the First Amendment trumps possible meanings of the Fourteenth Amendment. I thought the rule of construction was that the latter in time trumps the former in time. There is no doubt -- recall Incorporation -- that the Fourteenth Amendment invites some new thinking and reworking of pre-Fourteenth Amendment rights, privileges, powers, immunities, and the whole nine yards. But of course this means that the latter in time can trump the former in time. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Friday, November 05, 2004 7:21 PM To: Law Religion issues for Law Academics Subject: RE: Lesser protection for religious advocacy The Fourteenth Amendment doesn't justify speech restrictions in the cause of fighting racism any more than it justifies unreasonable searches for evidence of racist crimes, or abolition of jury trials in prosecutions for lynchings. And, here, the Establishment Clause, which speaks (at most) to the views that *the government* may express says nothing to authorize the government to suppress *private persons'* religious messages. Eugene ___ To post, send message to [EMAIL PROTECTED] 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: Lesser protection for religious advocacy
But note that the 14th amendment has a state action requirement... Mark S. Scarberry Pepperdine University School of Law -Original Message- From: Newsom Michael [mailto:[EMAIL PROTECTED] Sent: Tuesday, November 09, 2004 1:33 PM To: Law Religion issues for Law Academics Subject: RE: Lesser protection for religious advocacy For this argument to stand up, one has to conclude that any conflict between the possible meaning of the First Amendment trumps possible meanings of the Fourteenth Amendment. I thought the rule of construction was that the latter in time trumps the former in time. There is no doubt -- recall Incorporation -- that the Fourteenth Amendment invites some new thinking and reworking of pre-Fourteenth Amendment rights, privileges, powers, immunities, and the whole nine yards. But of course this means that the latter in time can trump the former in time. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Friday, November 05, 2004 7:21 PM To: Law Religion issues for Law Academics Subject: RE: Lesser protection for religious advocacy The Fourteenth Amendment doesn't justify speech restrictions in the cause of fighting racism any more than it justifies unreasonable searches for evidence of racist crimes, or abolition of jury trials in prosecutions for lynchings. And, here, the Establishment Clause, which speaks (at most) to the views that *the government* may express says nothing to authorize the government to suppress *private persons'* religious messages. Eugene ___ To post, send message to [EMAIL PROTECTED] 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 [EMAIL PROTECTED] 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: Lesser protection for religious advocacy
Agreed, but we could engage in a long discussion as to what that requirement means. Certainly in the public school context (public space and compulsory attendance rules), the presence of the state and its action or inaction are difficult to gainsay. The pamphlets were placed on public property, if I understand the facts right. Can't the state regulate the use of its property? Can't one say that failure to do so might amount to state action? -Original Message- From: Scarberry, Mark [mailto:[EMAIL PROTECTED] Sent: Tuesday, November 09, 2004 4:52 PM To: 'Law Religion issues for Law Academics' Subject: RE: Lesser protection for religious advocacy But note that the 14th amendment has a state action requirement... Mark S. Scarberry Pepperdine University School of Law -Original Message- From: Newsom Michael [mailto:[EMAIL PROTECTED] Sent: Tuesday, November 09, 2004 1:33 PM To: Law Religion issues for Law Academics Subject: RE: Lesser protection for religious advocacy For this argument to stand up, one has to conclude that any conflict between the possible meaning of the First Amendment trumps possible meanings of the Fourteenth Amendment. I thought the rule of construction was that the latter in time trumps the former in time. There is no doubt -- recall Incorporation -- that the Fourteenth Amendment invites some new thinking and reworking of pre-Fourteenth Amendment rights, privileges, powers, immunities, and the whole nine yards. But of course this means that the latter in time can trump the former in time. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Friday, November 05, 2004 7:21 PM To: Law Religion issues for Law Academics Subject: RE: Lesser protection for religious advocacy The Fourteenth Amendment doesn't justify speech restrictions in the cause of fighting racism any more than it justifies unreasonable searches for evidence of racist crimes, or abolition of jury trials in prosecutions for lynchings. And, here, the Establishment Clause, which speaks (at most) to the views that *the government* may express says nothing to authorize the government to suppress *private persons'* religious messages. Eugene ___ To post, send message to [EMAIL PROTECTED] 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 [EMAIL PROTECTED] 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 [EMAIL PROTECTED] 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: Lesser protection for religious advocacy
In a message dated 11/9/2004 5:00:06 PM Eastern Standard Time, [EMAIL PROTECTED] writes: Can't the stateregulate the use of its property? Can't one say that failure to do somight amount to state action? Seems at least plausible that if you can make that work, you can find state action in the failure of a local government agency to prevent assaults on public sidewalks. After all, they are public property. Jim Henderson Senior Counsel ACLJ ___ To post, send message to [EMAIL PROTECTED] 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: Lesser protection for religious advocacy
You might. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Tuesday, November 09, 2004 5:05 PM To: [EMAIL PROTECTED] Subject: Re: Lesser protection for religious advocacy In a message dated 11/9/2004 5:00:06 PM Eastern Standard Time, [EMAIL PROTECTED] writes: Can't the state regulate the use of its property? Can't one say that failure to do so might amount to state action? Seems at least plausible that if you can make that work, you can find state action in the failure of a local government agency to prevent assaults on public sidewalks. After all, they are public property. Jim Henderson Senior Counsel ACLJ ___ To post, send message to [EMAIL PROTECTED] 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: Lesser protection for religious advocacy
That the failure to regulate might constitute state action-as in failing to ban private segregation- was one of the most hotly contested issues of the mid-sixties civil right litigationTHE Supreme court ,if my memories of law school are reliable, always dodged the question. It largely became moot as a result of the 1964 civil rights act. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of [EMAIL PROTECTED] Sent: Tuesday, November 09, 2004 5:05 PM To: [EMAIL PROTECTED] Subject: Re: Lesser protection for religious advocacy In a message dated 11/9/2004 5:00:06 PM Eastern Standard Time, [EMAIL PROTECTED] writes: Can't the state regulate the use of its property? Can't one say that failure to do so might amount to state action? Seems at least plausible that if you can make that work, you can find state action in the failure of a local government agency to prevent assaults on public sidewalks. After all, they are public property. Jim Henderson Senior Counsel ACLJ ___ To post, send message to [EMAIL PROTECTED] 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: Lesser protection for religious advocacy
The idea that the govt is responsible for all that it does not prohibit must be treated with great care. It has the potential of making govt responsible for all of life, and of eliminating the sphere of private action. Taken far enough, it is totalitarian. Thus, for example, the argument I heard at one AALS section meeting that Catholic refusal to ordain women as priests violates the 14th Amendment, because the govt's refusal to extend anti-discrim laws to churches results in church discrimination being state action. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: marc stern [mailto:[EMAIL PROTECTED] Sent: Tuesday, November 09, 2004 2:14 PM To: 'Law Religion issues for Law Academics' Subject: RE: Lesser protection for religious advocacy That the failure to regulate might constitute state action-as in failing to ban private segregation- was one of the most hotly contested issues of the mid-sixties civil right litigationTHE Supreme court ,if my memories of law school are reliable, always dodged the question. It largely became moot as a result of the 1964 civil rights act. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Tuesday, November 09, 2004 5:05 PM To: [EMAIL PROTECTED] Subject: Re: Lesser protection for religious advocacy In a message dated 11/9/2004 5:00:06 PM Eastern Standard Time, [EMAIL PROTECTED] writes: Can't the state regulate the use of its property? Can't one say that failure to do so might amount to state action? Seems at least plausible that if you can make that work, you can find state action in the failure of a local government agency to prevent assaults on public sidewalks. After all, they are public property. Jim Henderson Senior Counsel ACLJ ___ To post, send message to [EMAIL PROTECTED] 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: Lesser protection for religious advocacy
Professor Newsome, Would it be constitutional, in your opinion, for a school to pass and enforce a rule which stated, Students may not discuss any matters relating to religion or theology while on school grounds, whether such discussions occur as part of a class discussion or as part of a private conversation between students and/or faculty. Gene Summerlin Ogborn, Summerlin Ogborn, P.C. 210 Windsor Place 330 South 10th St. Lincoln, NE 68508 402.434.8040 402.434.8044 (FAX) 402.730.5344 (Mobile) www.osolaw.com [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Newsom Michael Sent: Tuesday, November 09, 2004 3:25 PM To: Law Religion issues for Law Academics Subject: RE: Lesser protection for religious advocacy Well that is the question. Some people believe that schools should not be religious-free zones, and one of their arguments in support of that position -- apart from Protestant Empire imperatives -- is what I think is a wholly exaggerated and unwarranted view of what the Free Speech clause requires. -Original Message- From: Mark Graber [mailto:[EMAIL PROTECTED] Sent: Friday, November 05, 2004 6:03 PM To: [EMAIL PROTECTED] Subject: Re: Lesser protection for religious advocacy but schools are religious-free zones. MAG ___ To post, send message to [EMAIL PROTECTED] 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 [EMAIL PROTECTED] 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: Lesser protection for religious advocacy
Mark, Respectfully, I disagree that my question is obviously overbroad. I hear a number of opinions that seem to indicate that religious speech may be banned from schools. My question, I think, is an appropriate one to determine the reach to which such a ban would extend. Gene Summerlin Ogborn, Summerlin Ogborn, P.C. 210 Windsor Place 330 South 10th St. Lincoln, NE 68508 402.434.8040 402.434.8044 (FAX) 402.730.5344 (Mobile) www.osolaw.com [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Mark Graber Sent: Tuesday, November 09, 2004 5:39 PM To: [EMAIL PROTECTED] Subject: RE: Lesser protection for religious advocacy Obviously overbroad. Students may clearly ask, who is the present Pope? The issue is whether students may proselytize. MAG Gene Summerlin [EMAIL PROTECTED] 11/09/04 6:18 PM Professor Newsome, Would it be constitutional, in your opinion, for a school to pass and enforce a rule which stated, Students may not discuss any matters relating to religion or theology while on school grounds, whether such discussions occur as part of a class discussion or as part of a private conversation between students and/or faculty. Gene Summerlin Ogborn, Summerlin Ogborn, P.C. 210 Windsor Place 330 South 10th St. Lincoln, NE 68508 402.434.8040 402.434.8044 (FAX) 402.730.5344 (Mobile) www.osolaw.com [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Newsom Michael Sent: Tuesday, November 09, 2004 3:25 PM To: Law Religion issues for Law Academics Subject: RE: Lesser protection for religious advocacy Well that is the question. Some people believe that schools should not be religious-free zones, and one of their arguments in support of that position -- apart from Protestant Empire imperatives -- is what I think is a wholly exaggerated and unwarranted view of what the Free Speech clause requires. -Original Message- From: Mark Graber [mailto:[EMAIL PROTECTED] Sent: Friday, November 05, 2004 6:03 PM To: [EMAIL PROTECTED] Subject: Re: Lesser protection for religious advocacy but schools are religious-free zones. MAG ___ To post, send message to [EMAIL PROTECTED] 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 [EMAIL PROTECTED] 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 [EMAIL PROTECTED] 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 [EMAIL PROTECTED] 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: Lesser protection for religious advocacy
To respond in a bit more detail to Mark's objection, I don't think the issue is really whether the students can proselytize per se, because the situation described here involved speech that occurred either before or after class as I understood it. Therefore, the issue is really whether the students can be prohibited from discussing religion during private conversations in non-class time. (I agree that the school could prohibit all leafleting, so long as it was not limited to certain topics). However, can the school say, yes, you can discuss religion or theology, but not in a manner in which you attempt to convert someone else to your view. If that is the prohibition being proposed, then that seems to be clear viewpoint based discrimination on speech, and I fail to understand the First Amendment underpinnings that would justify such a restriction. Gene Summerlin Ogborn, Summerlin Ogborn, P.C. 210 Windsor Place 330 South 10th St. Lincoln, NE 68508 402.434.8040 402.434.8044 (FAX) 402.730.5344 (Mobile) www.osolaw.com [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Mark Graber Sent: Tuesday, November 09, 2004 5:39 PM To: [EMAIL PROTECTED] Subject: RE: Lesser protection for religious advocacy Obviously overbroad. Students may clearly ask, who is the present Pope? The issue is whether students may proselytize. MAG Gene Summerlin [EMAIL PROTECTED] 11/09/04 6:18 PM Professor Newsome, Would it be constitutional, in your opinion, for a school to pass and enforce a rule which stated, Students may not discuss any matters relating to religion or theology while on school grounds, whether such discussions occur as part of a class discussion or as part of a private conversation between students and/or faculty. Gene Summerlin Ogborn, Summerlin Ogborn, P.C. 210 Windsor Place 330 South 10th St. Lincoln, NE 68508 402.434.8040 402.434.8044 (FAX) 402.730.5344 (Mobile) www.osolaw.com [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Newsom Michael Sent: Tuesday, November 09, 2004 3:25 PM To: Law Religion issues for Law Academics Subject: RE: Lesser protection for religious advocacy Well that is the question. Some people believe that schools should not be religious-free zones, and one of their arguments in support of that position -- apart from Protestant Empire imperatives -- is what I think is a wholly exaggerated and unwarranted view of what the Free Speech clause requires. -Original Message- From: Mark Graber [mailto:[EMAIL PROTECTED] Sent: Friday, November 05, 2004 6:03 PM To: [EMAIL PROTECTED] Subject: Re: Lesser protection for religious advocacy but schools are religious-free zones. MAG ___ To post, send message to [EMAIL PROTECTED] 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 [EMAIL PROTECTED] 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 [EMAIL PROTECTED] 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 [EMAIL PROTECTED] 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: Lesser protection for religious advocacy
I'm puzzled. Is Mark genuinely saying that it should be considered harassment -- and thus presumably punishable under hostile environment harassment law (unless Mark agrees with me that hostile environment harassment law is unconstitutional to this extent) -- for people to express the view that Jews should convert to Christianity, or Christians should convert away from Christianity? If this were American Atheists putting up a table expressing the view that religion is irrational, and religious people should become atheists, would that be harassment, too? On the other hand, maybe despite the first sentence, he thinks this doesn't constitute[] harassment -- or is constitutionally protected harassment -- but simply shows that people are differentially offended by various viewpoints. You bet. There's no doubt that many people find criticism of Christianity to be offensive. There's also no doubt that many people find expressions of the idea that non-Christians (including Jews) should convert to Christianity to be offensive. I had thought, though, that the First Amendment protected even the expression of offensive ideas (though in K-12 schools, perhaps it might restrict them if there's serious evidence of disruption, beyond the level observed in Tinker). Mark, on the other hand, seems to think that the First Amendment allows and possibly even *requires* the suppression of such ideas in government-run schools. I find it hard to see why; it's not the school that's endorsing (or, as to American Atheists, disapproving of) religion. The school is simply tolerating a viewpoint that some people find offensive. I would think that under Tinker, that's the school's constitutional *duty*, not a constitutional violation. Seriously, Mark, do you really think that if an atheist high school student decides to tell some of his classmates why religion is wrong, and why they should stop believing -- and let's assume he does that politely, and there is indeed no evidence of disruption (because his classmates are decent people who don't start fighting when they hear offensive ideas) -- then the school has a constitutional duty to suppress the speech? Or that if he wears a Religion is the Opium of the Masses T-shirt, the school must tell him to take it off? Or even that it has the power to suppress the speech, even when the Tinker requirements aren't satisfied? Eugene Mark Graber writes: A little story on what constitutes harassment. When I was an undergraduate at Dartmouth, the university allowed Jews for Jesus to set up shop in the main campus center where we picked up our mail. When Jewish students protested, we were told, we were way too sensitive. That night some of us formed a new group, Christians Against Christ. We took a table in the main campus center. Within an hour, both groups were asked to leave. As to whether that was right, who knows. But it is interesting that a great many people who did not think Jews should be bothered by Christian proslytization were really bothered when some uppity Jews engaged in anti-Christian proslytization. It does seem fairly clear to me that under the Establishment Clause a state can say (perhaps must say, given mandatory attendence) that no prolytization shall go on in the schools. ___ To post, send message to [EMAIL PROTECTED] 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: Lesser protection for religious advocacy
The purpose of the story was simply to point out, as I thought I made clear, that a great many Christians who thought nothing problematic about converting Jews suddenly found speech offensive when they were the converters. I suspect, by the way, that we agree that harrassment is the wrong word. I do think religion or anti-religion has no place in the public schools. Schools may teach that progressive taxes are good or that they may be evil. They may teach that the Vietnam War is good or that it was evil. And students must be free to disagree. But schools may neither teach that religion per se or religion in general is good or evil. Thus, I find nothing objectionable in an across the board ban on prolytizing in schools, that Tinker is different partly because Tinker is about political speech. Tnker is also different for a separate reason. Students ought to be permitted to wear various garb identifying themselves as religious. Crosses and stars of david are okay. The line isn't neat, but proslytizing does cross the line. People who go to school are not safe from political ideas, and they must mingle with students who disagree, but schools are religious-free zones. MAG [EMAIL PROTECTED] 11/05/04 5:38 PM I'm puzzled. Is Mark genuinely saying that it should be considered harassment -- and thus presumably punishable under hostile environment harassment law (unless Mark agrees with me that hostile environment harassment law is unconstitutional to this extent) -- for people to express the view that Jews should convert to Christianity, or Christians should convert away from Christianity? If this were American Atheists putting up a table expressing the view that religion is irrational, and religious people should become atheists, would that be harassment, too? On the other hand, maybe despite the first sentence, he thinks this doesn't constitute[] harassment -- or is constitutionally protected harassment -- but simply shows that people are differentially offended by various viewpoints. You bet. There's no doubt that many people find criticism of Christianity to be offensive. There's also no doubt that many people find expressions of the idea that non-Christians (including Jews) should convert to Christianity to be offensive. I had thought, though, that the First Amendment protected even the expression of offensive ideas (though in K-12 schools, perhaps it might restrict them if there's serious evidence of disruption, beyond the level observed in Tinker). Mark, on the other hand, seems to think that the First Amendment allows and possibly even *requires* the suppression of such ideas in government-run schools. I find it hard to see why; it's not the school that's endorsing (or, as to American Atheists, disapproving of) religion. The school is simply tolerating a viewpoint that some people find offensive. I would think that under Tinker, that's the school's constitutional *duty*, not a constitutional violation. Seriously, Mark, do you really think that if an atheist high school student decides to tell some of his classmates why religion is wrong, and why they should stop believing -- and let's assume he does that politely, and there is indeed no evidence of disruption (because his classmates are decent people who don't start fighting when they hear offensive ideas) -- then the school has a constitutional duty to suppress the speech? Or that if he wears a Religion is the Opium of the Masses T-shirt, the school must tell him to take it off? Or even that it has the power to suppress the speech, even when the Tinker requirements aren't satisfied? Eugene ___ To post, send message to [EMAIL PROTECTED] 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: Lesser protection for religious advocacy
I'm glad that we agree such speech shouldn't be called harassment. But I'm puzzled by Mark's second paragraph. Why does the fact that *schools* may not teach religion or atheism mean that schools may or even must restrict *students* who want to advocate religion or atheism? Mark says schools are religious-free zones -- but why? The Establishment Clause may prohibit schools from endorsing religion (and, incidentally, from putting up religious symbols). Mark agrees that it doesn't prohibit students from wearing religious symbols. But he seems to think that it prohibits students from expressing the view that some should convert to some religion, or should stop being religious. What's the justification for this sort of strikingly speech-restrictive position? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Mark Graber Sent: Friday, November 05, 2004 3:03 PM To: [EMAIL PROTECTED] Subject: Re: Lesser protection for religious advocacy The purpose of the story was simply to point out, as I thought I made clear, that a great many Christians who thought nothing problematic about converting Jews suddenly found speech offensive when they were the converters. I suspect, by the way, that we agree that harrassment is the wrong word. I do think religion or anti-religion has no place in the public schools. Schools may teach that progressive taxes are good or that they may be evil. They may teach that the Vietnam War is good or that it was evil. And students must be free to disagree. But schools may neither teach that religion per se or religion in general is good or evil. Thus, I find nothing objectionable in an across the board ban on prolytizing in schools, that Tinker is different partly because Tinker is about political speech. Tnker is also different for a separate reason. Students ought to be permitted to wear various garb identifying themselves as religious. Crosses and stars of david are okay. The line isn't neat, but proslytizing does cross the line. People who go to school are not safe from political ideas, and they must mingle with students who disagree, but schools are religious-free zones. ___ To post, send message to [EMAIL PROTECTED] 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: Lesser protection for religious advocacy
Two issues here. 1. Must schools restrict proslytizing by students. 2. May schools constitutionally restrict proslytizing by students. I'm focusing on the second. Eugene and I agree that religion is different from ordinary speech in at least the sense that religion may not be the subject of official government speech. Politics may. We agree the state may not proslytize. It seems to me that the state may also say student debate in school may be limited to materials that the school may teach and comment on. Another line of argument. When the state creates a quasi-captive audience situation, seems to be that the state may forbid religious proslytizing. It is not speech restrictive, it is religious restrictive. The very text of the first amendment creates this distinction. MAG [EMAIL PROTECTED] 11/05/04 6:07 PM I'm glad that we agree such speech shouldn't be called harassment. But I'm puzzled by Mark's second paragraph. Why does the fact that *schools* may not teach religion or atheism mean that schools may or even must restrict *students* who want to advocate religion or atheism? Mark says schools are religious-free zones -- but why? The Establishment Clause may prohibit schools from endorsing religion (and, incidentally, from putting up religious symbols). Mark agrees that it doesn't prohibit students from wearing religious symbols. But he seems to think that it prohibits students from expressing the view that some should convert to some religion, or should stop being religious. What's the justification for this sort of strikingly speech-restrictive position? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Mark Graber Sent: Friday, November 05, 2004 3:03 PM To: [EMAIL PROTECTED] Subject: Re: Lesser protection for religious advocacy The purpose of the story was simply to point out, as I thought I made clear, that a great many Christians who thought nothing problematic about converting Jews suddenly found speech offensive when they were the converters. I suspect, by the way, that we agree that harrassment is the wrong word. I do think religion or anti-religion has no place in the public schools. Schools may teach that progressive taxes are good or that they may be evil. They may teach that the Vietnam War is good or that it was evil. And students must be free to disagree. But schools may neither teach that religion per se or religion in general is good or evil. Thus, I find nothing objectionable in an across the board ban on prolytizing in schools, that Tinker is different partly because Tinker is about political speech. Tnker is also different for a separate reason. Students ought to be permitted to wear various garb identifying themselves as religious. Crosses and stars of david are okay. The line isn't neat, but proslytizing does cross the line. People who go to school are not safe from political ideas, and they must mingle with students who disagree, but schools are religious-free zones. ___ To post, send message to [EMAIL PROTECTED] 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 [EMAIL PROTECTED] 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: Lesser protection for religious advocacy
It seems to me that Mark's claim goes far, far beyond what the Tinker court stated. Nothing in Tinker seems to suggest that religious speech is second class speech and less deserving of protection than other forms of pure speech that the First Amendment clearly protects. Speech about religion, theology or God is entitled to the same constitutional protection that applies to speech about politics, Vietnam, taxes, veganism, homosexuality or any other important topic. The fact that the school administration may not endorse religion, does not equate to the school administration being empowered to ban all mention of religion in student conversations, any more than the administration could ban discussions of politics between students during non-instructional time. Gene Summerlin Ogborn, Summerlin Ogborn, P.C. 210 Windsor Place 330 South 10th St. Lincoln, NE 68508 402.434.8040 402.434.8044 (FAX) 402.730.5344 (Mobile) www.osolaw.com [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Mark Graber Sent: Friday, November 05, 2004 5:03 PM To: [EMAIL PROTECTED] Subject: Re: Lesser protection for religious advocacy The purpose of the story was simply to point out, as I thought I made clear, that a great many Christians who thought nothing problematic about converting Jews suddenly found speech offensive when they were the converters. I suspect, by the way, that we agree that harrassment is the wrong word. I do think religion or anti-religion has no place in the public schools. Schools may teach that progressive taxes are good or that they may be evil. They may teach that the Vietnam War is good or that it was evil. And students must be free to disagree. But schools may neither teach that religion per se or religion in general is good or evil. Thus, I find nothing objectionable in an across the board ban on prolytizing in schools, that Tinker is different partly because Tinker is about political speech. Tnker is also different for a separate reason. Students ought to be permitted to wear various garb identifying themselves as religious. Crosses and stars of david are okay. The line isn't neat, but proslytizing does cross the line. People who go to school are not safe from political ideas, and they must mingle with students who disagree, but schools are religious-free zones. MAG [EMAIL PROTECTED] 11/05/04 5:38 PM I'm puzzled. Is Mark genuinely saying that it should be considered harassment -- and thus presumably punishable under hostile environment harassment law (unless Mark agrees with me that hostile environment harassment law is unconstitutional to this extent) -- for people to express the view that Jews should convert to Christianity, or Christians should convert away from Christianity? If this were American Atheists putting up a table expressing the view that religion is irrational, and religious people should become atheists, would that be harassment, too? On the other hand, maybe despite the first sentence, he thinks this doesn't constitute[] harassment -- or is constitutionally protected harassment -- but simply shows that people are differentially offended by various viewpoints. You bet. There's no doubt that many people find criticism of Christianity to be offensive. There's also no doubt that many people find expressions of the idea that non-Christians (including Jews) should convert to Christianity to be offensive. I had thought, though, that the First Amendment protected even the expression of offensive ideas (though in K-12 schools, perhaps it might restrict them if there's serious evidence of disruption, beyond the level observed in Tinker). Mark, on the other hand, seems to think that the First Amendment allows and possibly even *requires* the suppression of such ideas in government-run schools. I find it hard to see why; it's not the school that's endorsing (or, as to American Atheists, disapproving of) religion. The school is simply tolerating a viewpoint that some people find offensive. I would think that under Tinker, that's the school's constitutional *duty*, not a constitutional violation. Seriously, Mark, do you really think that if an atheist high school student decides to tell some of his classmates why religion is wrong, and why they should stop believing -- and let's assume he does that politely, and there is indeed no evidence of disruption (because his classmates are decent people who don't start fighting when they hear offensive ideas) -- then the school has a constitutional duty to suppress the speech? Or that if he wears a Religion is the Opium of the Masses T-shirt, the school must tell him to take it off? Or even that it has the power to suppress the speech, even when the Tinker requirements aren't satisfied? Eugene ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get
RE: Lesser protection for religious advocacy
? Mark says schools are religious-free zones -- but why? The Establishment Clause may prohibit schools from endorsing religion (and, incidentally, from putting up religious symbols). Mark agrees that it doesn't prohibit students from wearing religious symbols. But he seems to think that it prohibits students from expressing the view that some should convert to some religion, or should stop being religious. What's the justification for this sort of strikingly speech-restrictive position? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Mark Graber Sent: Friday, November 05, 2004 3:03 PM To: [EMAIL PROTECTED] Subject: Re: Lesser protection for religious advocacy The purpose of the story was simply to point out, as I thought I made clear, that a great many Christians who thought nothing problematic about converting Jews suddenly found speech offensive when they were the converters. I suspect, by the way, that we agree that harrassment is the wrong word. I do think religion or anti-religion has no place in the public schools. Schools may teach that progressive taxes are good or that they may be evil. They may teach that the Vietnam War is good or that it was evil. And students must be free to disagree. But schools may neither teach that religion per se or religion in general is good or evil. Thus, I find nothing objectionable in an across the board ban on prolytizing in schools, that Tinker is different partly because Tinker is about political speech. Tnker is also different for a separate reason. Students ought to be permitted to wear various garb identifying themselves as religious. Crosses and stars of david are okay. The line isn't neat, but proslytizing does cross the line. People who go to school are not safe from political ideas, and they must mingle with students who disagree, but schools are religious-free zones. ___ To post, send message to [EMAIL PROTECTED] 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 [EMAIL PROTECTED] 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 [EMAIL PROTECTED] 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: Lesser protection for religious advocacy
by students. 2. May schools constitutionally restrict proslytizing by students. I'm focusing on the second. Eugene and I agree that religion is different from ordinary speech in at least the sense that religion may not be the subject of official government speech. Politics may. We agree the state may not proslytize. It seems to me that the state may also say student debate in school may be limited to materials that the school may teach and comment on. Another line of argument. When the state creates a quasi-captive audience situation, seems to be that the state may forbid religious proslytizing. It is not speech restrictive, it is religious restrictive. The very text of the first amendment creates this distinction. MAG [EMAIL PROTECTED] 11/05/04 6:07 PM I'm glad that we agree such speech shouldn't be called harassment. But I'm puzzled by Mark's second paragraph. Why does the fact that *schools* may not teach religion or atheism mean that schools may or even must restrict *students* who want to advocate religion or atheism? Mark says schools are religious-free zones -- but why? The Establishment Clause may prohibit schools from endorsing religion (and, incidentally, from putting up religious symbols). Mark agrees that it doesn't prohibit students from wearing religious symbols. But he seems to think that it prohibits students from expressing the view that some should convert to some religion, or should stop being religious. What's the justification for this sort of strikingly speech-restrictive position? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Mark Graber Sent: Friday, November 05, 2004 3:03 PM To: [EMAIL PROTECTED] Subject: Re: Lesser protection for religious advocacy The purpose of the story was simply to point out, as I thought I made clear, that a great many Christians who thought nothing problematic about converting Jews suddenly found speech offensive when they were the converters. I suspect, by the way, that we agree that harrassment is the wrong word. I do think religion or anti-religion has no place in the public schools. Schools may teach that progressive taxes are good or that they may be evil. They may teach that the Vietnam War is good or that it was evil. And students must be free to disagree. But schools may neither teach that religion per se or religion in general is good or evil. Thus, I find nothing objectionable in an across the board ban on prolytizing in schools, that Tinker is different partly because Tinker is about political speech. Tnker is also different for a separate reason. Students ought to be permitted to wear various garb identifying themselves as religious. Crosses and stars of david are okay. The line isn't neat, but proslytizing does cross the line. People who go to school are not safe from political ideas, and they must mingle with students who disagree, but schools are religious-free zones. ___ To post, send message to [EMAIL PROTECTED] 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 [EMAIL PROTECTED] 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 [EMAIL PROTECTED] 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 [EMAIL PROTECTED] 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
RE: Lesser protection for religious advocacy
I don't quite understand how Mark's textual argument works. The Establishment Clause does distinguish *government* actions vis-a-vis religion from government actions vis-a-vis politics. But that doesn't justify restricting speech by citizens, such as students. The Free Exercise Clause does provide for protection for religion. But why should we think that this means that the Free Speech Clause is limited to nonreligious speech? The Free Exercise Clause speaks of religion broadly, not of religious speech in particular -- the text thus offers no reason to think that speech is somehow dealt with solely by the Free Exercise Clause. The Free Speech Clause likewise speaks of speech broadly; it offers no reason to think that religious speech is less protected than other speech. Certainly as a textual matter (and Mark claims he's making a textual argument) there's nothing at all in the text of the First Amendment that suggests that your or my or our children's religious speech is less protected than any other speech. Now if the First Amendment did embody a theory that religious belief is private -- and in the sense of should not be exposed to others, or should not be exposed to others in public places, or should not be exposed to others, even by private citizens, on public property -- then one might see why religious speech would be a less protected category. But that's Mark's theory. Nothing in the text of the First Amendment suggests this is so. To the extent the First Amendment supports the notion that religious belief is private, it at most supports the notion that the *government* ought not have a religious belief (that's the Establishment Clause, at least under its modern interpretation). But nothing in the text supports the notion that individuals' religious speech is somehow less within the freedom of speech than other speech. Likewise, to the extent that Mark is explaining to me the point of the Establishment Clause, there are many possible points, from the literal one that its point was to keep the federal government from creating a national religion, or interfering with state ones, to the modern Court's view that its point is to keep the government from having *its own* religious views. But how one can textually get from Congress shall make no law respecting an establishment of religion to the government has extra power to restrict individuals' religious speech I can't see. It seems to me that we have a pretty familiar phenomenon going on here: Some people believe that certain views -- here, that people should convert to Christianity -- are offensive and possibly wrong. They then want to turn those beliefs into government action that suppresses those views, in this instance in particular places. Faced with a claim that the speech, even if offensive and wrong, is constitutionally protected, they turn to supposed constitutional constraints on the Free Speech Clause itself -- the war power in the WWI era speech-suppressive cases, democracy in Frankfurter's opinion in Dennis, the Free Exercise Clause in Jackson's arguments for suppressing offensive religious speech, the Equal Protection Clause in modern arguments for suppressing allegedly racist or sexist speech, and more. I've written about this in Freedom of Speech and the Constitutional Tension Method (http://www1.law.ucla.edu/~volokh/tension.htm) -- and Mark has written about himself in Old Wine in New Bottles: The Constitutional Status of Unconstitutional Speech, 48 Vand L Rev 349 (1995). But here as there, the trouble is that *the other constitutional provisions do not actually limit the Free Speech Clause*. The Free Speech Clause is a limit on the war power, not vice versa. The Fourteenth Amendment doesn't justify speech restrictions in the cause of fighting racism any more than it justifies unreasonable searches for evidence of racist crimes, or abolition of jury trials in prosecutions for lynchings. And, here, the Establishment Clause, which speaks (at most) to the views that *the government* may express says nothing to authorize the government to suppress *private persons'* religious messages. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Mark Graber Sent: Friday, November 05, 2004 4:00 PM To: [EMAIL PROTECTED] Subject: RE: Lesser protection for religious advocacy This is part of a long argument Eugene and I have had, one we will probably not resolve here. it seems to me quite apparent from the text of the first amendment that Congress intended to deal with speech and religion separately, with an understanding that religious proselytizing is somehow different that political speech. So we need a coherent theory of why this is so. Why is the state not permitted to claim that Christianity is false, but may teach that Communism is false? One possible reason, religious belief
