Eric: I would need a thick and objective description of what happened at Washburn in order to evaluate its significance in this larger argument. For example, what was the Mormon student saying (or planning to say) about the Bible that caused such consternation and conflict? Was there a back story of conflict between Mormons (or this particular student) and CLS members that preceded this incident? That would all be quite useful to know, but I have to say that it's still only one story, and I would guess that CLS lawyers (who have been litigating these cases for years) would have been on the lookout for such incidents. So one story and one story only would not change my basic intuition that an all-comers policy in a school-created forum presents a cooperation game, where everyone understands that aggressive challenges and takeovers will invite reciprocal action, and that such tit-for-tat responses will quickly destroy the forum.
Chip Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ---- Original message ---- >Date: Thu, 13 May 2010 13:59:20 -0400 >From: religionlaw-boun...@lists.ucla.edu (on behalf of Eric Rassbach ><erassb...@becketfund.org>) >Subject: RE: A real-life on-campus example >To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > >Chip - > >Does the situation where the Mormon student shut down the Washburn chapter of >CLS represent the sort of "dynamism, openness and challenge" you are talking >about? (That's the real-life on-campus example you asked for earlier and was >cited in Petitioner's brief at page 33.) > >That scenario seems to create the opposite of dynamism, by allowing one >student to enlist the government in shutting down the dialogue altogether. >Remember, we aren't talking about the ability to create dialogue--CLS meetings >are open to all students--we are talking about the ability of one group of >students to get the government to withdraw permission from another group of >students to use email, bulletin boards, etc. to communicate with the rest of >the student body. Conditioning permission to speak to the entire student body >on relinquishing any ability to affirm a specific set of beliefs burdens >freedom of association under Healy. > >The sort of open-source associational dynamic you describe sounds nice if you >don't get too specific about how it actually works in practice, but in reality >even open-source systems always need exclusionary rules for there to be a >coherent dialogue. Even Wikipedia has rules against vandals. > >Eric > > > >________________________________________ >From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] >On Behalf Of Ira (Chip) Lupu [icl...@law.gwu.edu] >Sent: Thursday, May 13, 2010 1:30 PM >To: Law & Religion issues for Law Academics >Subject: RE: A real-life on-campus example > >Alan asks a good question about the standard of review. This is a designated >public forum. The "reasonableness" standard (that is, reasonable in light of >the purposes of the forum) ordinarily applies to exclusion of speech content >(by subject matter, or by viewpoint, but the latter will be never be >reasonable). But the Hastings LS all-comers policy is not an exclusion of >speech content -- it's a policy regarding associational freedom. It only >indirectly and occasionally (perhaps rarely, perhaps never) operates to >exclude any speech content at all. Because the challenged policy covers >association and not content, I think the requirements of reasonableness (in >light of the purposes of the forum) might be even weaker than would be the >case for a policy of subject matter exclusion. And, because the challenged >all-comers policy rarely if ever will compromise the group's message (and >hasn't been shown to do so here), there is no substantial burden on >associational freedom. >And -- to your question, Rick -- the forum can have more than one purpose. It >can be designed to have diverse groups (e.g., by allowing a very small number >to form a group), and it can simultaneously be designed to permit dynamism, >openness, and challenge within a group if a student wants to do that (hence >all-comers). If these policies are reasonable, it is not an unconstitutional >condition to make compliance with them a condition of access to the forum. >(The most orthodox CLS students can still meet outside the forum, and may >exclude anyone they choose to exclude in that separate associational context.) > >Ira C. Lupu >F. Elwood & Eleanor Davis Professor of Law >George Washington University Law School >2000 H St., NW >Washington, DC 20052 >(202)994-7053 >My SSRN papers are here: >http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg > > >---- Original message ---- >>Date: Thu, 13 May 2010 09:26:48 -0700 >>From: religionlaw-boun...@lists.ucla.edu (on behalf of "Brownstein, Alan" >><aebrownst...@ucdavis.edu>) >>Subject: RE: A real-life on-campus example >>To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> >> >>Just to make sure I understand your argument, Chip. Is it your position that >>reasonableness is the appropriate standard of review in this case with regard >>to the CLS freedom of association claims because CLS associational freedom >>will not be substantially burdened by the Hastings policy? Or is there >>another reason why you believe a reasonableness standard of review is >>appropriate in this case and your analysis of the magnitude of the burden >>goes to the application of the standard. Are you analogizing the review of >>freedom of association claims challenging a broadly applicable policy to the >>review of content discrimination claims in a designated limited public forum? >> >>Alan Brownstein >> >>-----Original Message----- >>From: religionlaw-boun...@lists.ucla.edu >>[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu >>Sent: Thursday, May 13, 2010 8:11 AM >>To: Law & Religion issues for Law Academics; hamilto...@aol.com; Esenberg, >>Richard >>Subject: RE: A real-life on-campus example >> >>Marc Stern is overstating the holding of Gilmore. Most of the opinion is >>about a state action question -- whether the city is complicit in the >>segregation of certain facilities. With respect to those private entities or >>groups with which the city is not so complicit, Gilmore has a brief passage >>at the end of the opinion recognizing their freedom of private association, >>and concluding that they cannot be excluded by an injunction from the right >>to participate in recreational activities in a public park. >> >>But Hastings is not running a park where children come to play. It has >>created a limited public forum, with access to various communications >>facilities. Its rules have to be non-discriminatory and reasonable in light >>of the forum's purposes. The all-comers policy is certainly >>non-discriminatory. We're arguing about whether it's reasonable (there might >>have been an argument about whether it was pretextual, but the parties' >>stipulation seems to eliminate that argument completely.) Some of us on this >>list think the policy is quite reasonable; it is not likely to disturb any >>group's message, because of the incentives of mutual respect and >>forebearance, but it leaves open the possibility of challenge to a group's >>message. A law school might reasonably see that openness to challenge -- and >>the imposition of a corresponding duty to include all-comers -- as a healthy >>and necessary quality in a student organization. The fact that students are >>only at the school for three years! ! > m! >> ak! >>es this even more reasonable; the next cohort of students may want a >>different kind of CLS. They can show up and challenge, or (more likely, if >>the local CLS views are entrenched) form their own student organization. CLS >>wants the right to exclude, but it has real trouble demonstrating a tangible >>harm (rather than a harm "in principle") from its inability to do so for >>purposes of access to the forum. >> >>One argument for unreasonableness that seems to me out of bounds is that CLS >>national has an unwaivable statement of faith. If Hastings CLS can't comply >>with that, that's a problem between the national and the local affiliate, but >>that's not a problem for Hastings LS. Likewise if the national ACLU, or any >>other national organization, does not like the local Hastings chapter policy >>on some issue. >> >> >>Ira C. Lupu >>F. Elwood & Eleanor Davis Professor of Law >>George Washington University Law School >>2000 H St., NW >>Washington, DC 20052 >>(202)994-7053 >>My SSRN papers are here: >>http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg >> >> >>---- Original message ---- >>>Date: Thu, 13 May 2010 09:35:34 -0400 >>>From: religionlaw-boun...@lists.ucla.edu (on behalf of "Marc Stern" >>><mst...@ajcongress.org>) >>>Subject: RE: A real-life on-campus example >>>To: <hamilto...@aol.com>,"Law & Religion issues for Law Academics" >>><religionlaw@lists.ucla.edu>,"Esenberg, Richard" >>><richard.esenb...@marquette.edu> >>> >>>Nothing CLS has said challenges Hastings' duty to enforce rules against >>>its own discrimination on the basis of inter alia sexual orientation or >>>religion. As Gilmore v. City of Montgomery holds, however, a city's duty >>>not to engage itself in (there racial) discrimination ) does not >>>authorize it to deny non-exclusive access to public spaces to groups >>>that engage in such discrimination. The Court held there that to enforce >>>non-discrimination rules against such private groups (schools!) would >>>deny the segregation academies freedom of association. Why isn't Gilmore >>>controlling here? >>>Marc Stern >>> >>>-----Original Message----- >>>From: religionlaw-boun...@lists.ucla.edu >>>[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of >>>hamilto...@aol.com >>>Sent: Thursday, May 13, 2010 9:19 AM >>>To: Esenberg, Richard; Law & Religion issues for LawAcademics >>>Subject: Re: A real-life on-campus example >>> >>>Of course the marketplace works as I described it especially in the US. >>>Groups thrive and shrivel and respond to and interact with the culture >>>and if they cannot adapt to broadbased moral and social changes by >>>changing their beliefs and practices, they become marginalized. Groups >>>spin off of other groups. >>>The many religions that supported slavery and the subjection of women >>>and children to state-sponsored patriarchal control have had to adjust >>>or choose the sidelines. Hasn't CLS conceded that the school can >>>enforce race discrimination laws? >>> >>>Marci >>> >>>Sent from my Verizon Wireless BlackBerry >>> >>>-----Original Message----- >>>From: "Esenberg, Richard" <richard.esenb...@marquette.edu> >>>Date: Thu, 13 May 2010 12:32:59 >>>To: hamilto...@aol.com<hamilto...@aol.com>; Law & Religion issues for >>>LawAcademics<religionlaw@lists.ucla.edu> >>>Subject: RE: A real-life on-campus example >>> >>>The right of expressive association is not a demand for government >>>protection in the market place of ideas or a demand for government >>>support. It is, rather, a shield against government compulsion, i.e., >>>the demand that an organization not define itself by adherance to any >>>particular creed or that it engage in practices inconsistent with its >>>expressive message or core beliefs. While in the public forum context, >>>it might involve access to a government benefit but that is a function >>>of the government's decision to establish a forum and the (quite >>>reasonble rule) that, if it chooses to do so, it may not discriminate on >>>the basis of viewpoint. >>> >>>This doesn't immunize religious organizations from the market place of >>>ideas which, in any event, does not work as she thinks it does. Churches >>>regularly impose creedal requirements on clergy, leaders and members. If >>>congregants don't like it, they leave much as those who don't like CLS >>>policy could leave as well. >>> >>>The problem with "takeovers" - whether effected through rules of a >>>public forum or antidiscrimination laws - is that they would undermine >>>the capacity of minority or, more specifically, unpopular groups to >>>associate for a particular expressive purpose because, as soon as they >>>choose to combine, they must be prepared, in this context, to permit >>>others to come in and not simply expose their creed to the market place >>>of ideas (that happens in all events) but to vote it out. >>> >>> >>>Professor Rick Esenberg >>>Marquette University Law School >>>Sensenbrenner Hall 321C >>>1103 W. Wisconsin Avenue >>>Milwaukee, WI 53201 >>>(o) 414-288-6908 >>>(m)414-213-3957 >>>(f) 414-288-6975 >>> >>> >>>________________________________________ >>>From: religionlaw-boun...@lists.ucla.edu >>>[religionlaw-boun...@lists.ucla.edu] on behalf of hamilto...@aol.com >>>[hamilto...@aol.com] >>>Sent: Thursday, May 13, 2010 7:09 AM >>>To: Law & Religion issues for Law Academics >>>Subject: Re: A real-life on-campus example >>> >>>It is not majoritarian but rather the marketplace. Expressive >>>association is a new right with little justification in history and I am >>>beginning to think a large step toward government sponsored >>>Balkanization Does the government have an obligation to make sure >>>dwindling religions remain viable. I would say absolutely not. But >>>apparently Mark would disagree? >>> >>>Marci >>>Sent from my Verizon Wireless BlackBerry >>> >>>-----Original Message----- >>>From: "Scarberry, Mark" <mark.scarbe...@pepperdine.edu> >>>Date: Wed, 12 May 2010 19:11:04 >>>To: <religionlaw@lists.ucla.edu> >>>Subject: RE: A real-life on-campus example >>> >>>_______________________________________________ >>>To post, send message to Religionlaw@lists.ucla.edu To subscribe, >>>unsubscribe, change options, or get password, see >>>http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >>> >>>Please note that messages sent to this large list cannot be viewed as >>>private. Anyone can subscribe to the list and read messages that are >>>posted; people can read the Web archives; and list members can (rightly >>>or wrongly) forward the messages to others. >>> >>>_______________________________________________ >>>To post, send message to Religionlaw@lists.ucla.edu To subscribe, >>>unsubscribe, change options, or get password, see >>>http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >>> >>>Please note that messages sent to this large list cannot be viewed as >>>private. Anyone can subscribe to the list and read messages that are >>>posted; people can read the Web archives; and list members can (rightly >>>or wrongly) forward the messages to others. >>>_______________________________________________ >>>To post, send message to Religionlaw@lists.ucla.edu To subscribe, >>>unsubscribe, change options, or get password, see >>>http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >>> >>>Please note that messages sent to this large list cannot be viewed as >>>private. Anyone can subscribe to the list and read messages that are >>>posted; people can read the Web archives; and list members can (rightly >>>or wrongly) forward the messages to others. >>>_______________________________________________ >>>To post, send message to Religionlaw@lists.ucla.edu >>>To subscribe, unsubscribe, change options, or get password, see >>>http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >>> >>>Please note that messages sent to this large list cannot be viewed as >>>private. Anyone can subscribe to the list and read messages that are >>>posted; people can read the Web archives; and list members can (rightly or >>>wrongly) forward the messages to others. >>_______________________________________________ >>To post, send message to Religionlaw@lists.ucla.edu >>To subscribe, unsubscribe, change options, or get password, see >>http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >>Please note that messages sent to this large list cannot be viewed as >>private. Anyone can subscribe to the list and read messages that are posted; >>people can read the Web archives; and list members can (rightly or wrongly) >>forward the messages to others. >> >>_______________________________________________ >>To post, send message to Religionlaw@lists.ucla.edu >>To subscribe, unsubscribe, change options, or get password, see >>http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >>Please note that messages sent to this large list cannot be viewed as >>private. Anyone can subscribe to the list and read messages that are posted; >>people can read the Web archives; and list members can (rightly or wrongly) >>forward the messages to others. >_______________________________________________ >To post, send message to Religionlaw@lists.ucla.edu >To subscribe, unsubscribe, change options, or get password, see >http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > >Please note that messages sent to this large list cannot be viewed as private. > Anyone can subscribe to the list and read messages that are posted; people >can read the Web archives; and list members can (rightly or wrongly) forward >the messages to others. >_______________________________________________ >To post, send message to Religionlaw@lists.ucla.edu >To subscribe, unsubscribe, change options, or get password, see >http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > >Please note that messages sent to this large list cannot be viewed as private. > Anyone can subscribe to the list and read messages that are posted; people >can read the Web archives; and list members can (rightly or wrongly) forward >the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
