I tried to respond to Mark's email regarding academic freedom and failed to edit the paper trail. In light of some of the posts that have responded to Mark's email, I have modified my remarks to address what I believe is the core problem here.
Difficulties abound when the law holds that the state can TEACH ABOUT religion, but cannot proselytize. The literature on the subject that I have seen is highly critical of "religious studies" programs in colleges and universities. We have failed to work out the structural and institutional problems inherent in the seductive language of the Northwest Ordinance: "[r]eligion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Who has the institutional competence to teach about religion, and who has the institutional competence to proselytize? My piece on Common School Religion tries to sort this out, but perhaps all that I accomplished there was some fleshing out of the questions. Isn't the heart of the problem the fact that teachers are not "neutral" transmitters of "neutral" facts? Teachers and academic administrators have to make choices all of the time. Sisk is unhappy with the choices made by, in his opinion, the religious studies establishment. But given the psychological strength of the religious views held by some, somebody will surely be more than a little annoyed with *ANY* choices made by any teachers of religious studies departments, not only with regard to guest lectures, but as to the course taught, and the points of view expressed or developed in those course. I am troubled by the argument that somehow if the "balance" were different then the objections would go away. In matters of religion, there cannot be a "good" balance that everybody will accept. Who has the competence to declare what the proper "balance" might be? Surely the answer cannot be federal judges. One of the reasons we have academic freedom is precisely because nobody has that competence, at least in any absolute sense. We privilege teachers because we can't come up with anything better. And once we privilege them, we have to accept the consequences. *THAT* is why permitting tax-supported schools to teach about religion is so problematic. And yet, prohibiting them from doing so would strike many as unacceptable. (As an aside, I find Mark Tushnet's hypothetical interesting indeed. But I keep beating dead horses because I continue to believe that religious talk is different than non-religious talk, and I am bold enough to suggest that Mark's hypothetical makes my point. We get tied up in knots very easily when we attempt to use a "free speech" or "equality" analysis. I do not believe that even if we treat religious speech as a legally different kind of speech, something which I believe the very language and structure of the 1st A requires, that we can easily solve the problem of how to reconcile freedom *FROM* religion (nonestablishment) and freedom *OF* religion (free exercise). (I, of course, would have written the religion clauses entirely differently, but nobody has asked or is likely to ask for my opinion on this subject. But, if anybody really cares, see the introduction in my Protestant Empire piece and the introduction in my Common School Religion piece. There are some clues in those articles as to how I might go about writing a religion clause.) But surely the scope of the problem is narrower, and more manageable, if we limit ourselves to religion, religious speech, religious duties, religious acts, and our history and experience with religion, particularly the Anglo-American religious settlements. And I believe that we stand a better chance of getting things right -- or kinda right -- if we accept the act that there is something constitutionally significant about religion and our religious history etc.) _______________________________________________ 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
