Title: Message
As most of you probably already know, Judge Alito
has written several very interesting opinions on the religion clauses,
including, most notably, FOP v. Newark (1999), perhaps the strongest
post-Lukumi reading of the Free Exercise Clause in the courts of
appeals, and
I have taken a quick look at Alito's Religion Clause opinions, and I
have two observations:
1. None of them are about funding issues, so we don't know where
he stands on those (i.e., where would he have been in, for example,
Mitchell v. Helms?). (I think it is very difficult to extrapolate from
It is not all apparent which way Justice O'Connor would have voted in
the Oliva case, which involved a clash between the right of the speaker
and the power of school officials to protect a captive audience against
forced religious speech. Justice O'Connor has not endorsed the straight
equal
Yes, but . . .
What are the odds that SOC would recognize the Free
Exercise claim in FOP v. Newark?
And what are the odds that Alito will embrace the
O'Connor opinion rather than the Thomas opinion in Mitchell v.
Helms?
Very, very low on both accounts, I think --
especially the latter.
Whether O'Connor would have decided Oliva the same way or not, Alito's
opinion in this case raises some serious questions about his
understanding of free speech doctrine. If I understand his opinion
correctly, Alito argues that public school classrooms and students
assignments are non-public
Alan what serious questions are you referring to? It seems to me that
Judge Alito's position reflects the majority view of the courts of
appeals that Hazelwood requires application of strict scrutiny to
viewpoint based censorship of student speech.
-Original Message-
From: [EMAIL
I am sure others will climb aboard here, but I think this is not what
Hazelwood held. Rather, the holding centered on school-sponsored
expression and stated that as to such expression, the school's
censorship authority is limited to the following:
It is only when the decision to censor a
Hazelwood specifically limited itself to allowing schools greater leeway
to engage in subject matter restrictions. It did not lift the
requirement that strict scrutiny continue to apply to the more invidious
censorship based on viewpoint (which, of course, includes religious
viewpoints).So
Title: Message
Many
of us deny that the public schools are hostile to religion because in the vast
majority of such cases, all it takes is a letter like this to set them straight.
I've worked with hundreds and hundreds of school administrators, school board
members, principals and teachers
Interesting case, Rick. Thanks for posting it. I wish that the media and the right wing pundits would accurately state the law about religion at schools -- then maybe fewer people would misunderstand it. And I sure wish that administrators would be told the right rules in a way that they would
In a message dated 10/31/2005 1:24:20 P.M. Eastern Standard Time,
[EMAIL PROTECTED] writes:
I wish
that the media and the right wing pundits would accurately state the law about
religion at schools -- then maybe fewer people would misunderstand
it.
Please.
The right wing did not
Title: Message
Except that the ACLU has been very
consistent in defending the free speech and free exercise rights of students,
including events like See You At The Pole, the right to organize student bible
clubs, the rights of students to hand out religious literature to their
classmates,
WHere I live (Oklahoma) some teachers in some public schools take
attendance at the See you at the Polls meetings and some give extra
credit for those who attend. Students who do not attend are often
shunned by others. In one school a young man was holding the door for
students to enter the
Let me join others, with a few additional facts.
From Laycock, Equal Access and Moments of Silence: The Equal Status of
Religious Speech by Private Speakers, 81 Nw. U. L. Rev. 1, 52-53 (1986)
(footnotes omitted):
The American Civil Liberties Union opposed early drafts of the Equal
Access
I would like to know how solid Paul's
information is on this occurrence. I don't live in Oklahoma (though my father's
family left there during the Depression), but I'd think such blatant anti-Semitism
would be very unusual there.
I'd also be interested in Michael's
reaction to the
Brad, these kids meeting for prayer look more like pep rallies for
football games; and the encouragement they get from local preachers to
go out and convert their fellow students is ineeed a kind of zealotry.
From: Brad
In my 30+ years of supporting the ACLU in general and local chapters of it, I would have to say that to claim they have been fully consistent on any particular narrow issue either in any given year or especially over time would be quite an overstatement of it. But, in general, the ACLU really
Paul: I condemn acts of bigotrydirected at Jewish students (or at any student regardless of their faith). That is clear and unambiguous.
The question of sharing Christ and His salvation with non-Christians, however, is not an act of anti-Semitism. Indeed, if a person believes that Hell is real
Brad, Must be your HS was different from mine -- cliques reigned supreme at mine -- no matter what it was built around, an orthodoxy develops in them. So it would not at all surprise me to see most of the students involved doing exactly that, if the leaders of the group were doing it.See the
A brief followup. There is a Christian rock roll band called Audio Adrenaline that sings a popular song, called "A.K.A. Public School," that views public schools as a missions field. Here is an excerpt from the lyrics:
School is the place to be when you're young and fancy free 'Cause you got
Not all that many years ago, I was
involved in a suit against a school in a rural county in south Alabama, The only Jewish
children in the school had been regularly forced (physically) to bow their
heads in Christian prayer. When the oldest boy refused, he was sent to the
Principal. The
I'm aware that some circuits in some older cases read Hazelwood to be a
non-public forum case and require the rigorous review of viewpoint
discriminatory pedagogical decisions in a school classroom. I think
these cases are wrong. Other circuits read Hazelwood more broadly and
clearly have the
Joel: I think everyone should treat everyone with respect. My children don't go to public schools, because we believe the public schools undermine much of what we teach them at home.
But if you support the public school monopoly, you have to accept that one of the "blessings" of public schools is
It's not just older cases that have done this. The 2nd Circuit, in an
opinion by Judge Calabresi, did so less than 2 weeks ago. Peck ex rel.
Peck v. Baldwinsville Central School Dist. Judge Calabresi recognized
that the rule of viewpoint neutrality has been and remains a core facet
of First
I think this basic description of the trend in
recent cases is largely correct, Alan (whether or not it ought to be
the way the Court deals with such cases). As Kennedy suggests in
Forbes, in cases where the state actor's very job is to make inherently
content-based distinctions among
Title: Message
It seems to me that if peaceful
attempts to change Jews' religious views are condemned as "anti-Semitism," then
the word "anti-Semitism" will have lost most of its well-deserved pejorative
quality. It is of course completely proper for atheists to try to persuade
Christians
You got me. I missed that recent case. I'll have to read it before I
tell you whether I think it's wrong or not.
As for what is liberal or conservative, conservatives typically want the
courts to stay out of the business of running the public schools. Or at
least they used to. Something about
In a message dated 10/31/2005 4:20:08 PM Eastern Standard Time,
[EMAIL PROTECTED] writes:
Of
course, once your friend says "no, thanks," you should not harass or in any
way impose your beliefs on the unwilling listener.
I wonder how realistic this
is. Ifmembers of a particular
This is one of the most vexing free speech and, often, free exercise issues that I've had to deal with. I don't think that calling the activity curricular solves the problem, either, since extremes at either end of that spectrum also defy application of a general rule. If a child is placed in
Thanks for a very thoughtful post, Roman.
Actually, I think a distinction between a school denying a student the
opportunity to speak in class and a school disciplining a student for what he
or she says may be constitutionally significant. Vik Amar and I have a piece in
press for Green Bag
Title: Message
Marci: Any thoughts on how far
you'd take the "religious reasons are rejected whereas secular reasons for the
very same conduct are not . . . trigger[s] strict scrutiny" argument? An
example: Title VII generally bars sex discrimination in employment, but
provides a BFOQ
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