And how would the school explain to six-year-old students why the school is open to such uses only on Sundays; and why, just coincidently, the overwhelmingly predominant uses of the school are for Christian religious services?
Don't get me wrong -- this doesn't mean that I necessary think there would be an EC violation. But I am inclined to think that, at a minimum, the school must (but cf. Braunfeld) expand its access policy beyond Sundays; provide very robust disclaimers (per the controlling opinions in Pinette) -- disclaimers explicable to young students (more of a challenge than Eugene suggests); and perhaps even make special efforts to ensure that an array of groups, religious and nonreligious, are encouraged to make use of the school. On Mon, Aug 15, 2011 at 12:40 PM, Volokh, Eugene <vol...@law.ucla.edu>wrote: > I’ve never seen the force of concerns about confusion about > government endorsement created by equal access proposals, especially when > there’s time to explain things to the confused people. Schools’ *job* is > to dispel confusion among students about various things. They have lots of > opportunity to do it. How hard is it to put up signs – and, if necessary, > even make an announcement in class or in some handouts – that say something > like:**** > > ** ** > > Our school system opens up space after hours to any community group that > wants to use it. This is our way of helping people speak on whatever > subjects they want to speak about. All groups are equally entitled to use > this space, even if they say things that other people might disagree with – > that’s what promoting free speech is all about. So please keep in mind that > the things you see said and displayed here after hours don’t come from the > school system or the government – they come from the private groups that are > using this space.**** > > ** ** > > Not a complicated message, and in fact a message that’s worth teaching to > the students generally. (Of course, this is just what I cobbled together in > a couple of minutes; naturally, this can be edited to be clearer.) And if > the constitutional norm is equal treatment, which I think it should be, then > the answer to the argument that the government may reject the norm because > of the risk of confusion is that there’s a less restrictive means of > avoiding the confusion: educating the public about the equal-access nature > of the program.**** > > ** ** > > This problem, incidentally, likewise comes up with the > statutes barring teachers from teaching in religious garb (which might be > broad enough to cover yarmulkes and headscarves, though most clearly applies > to nun’s habits and the like). The statutes were upheld by two lower courts > a few decades ago, but a more recent lower court decision struck one down, I > think, and rightly so. Any concerns about confusion on the students’ part > can be easily dispelled, I think, by simply teaching students – and it > shouldn’t take long – that in our society different people have different > beliefs, that some people believe that they need to wear particular > religious clothing, and that these beliefs are the teachers’ own, not the > schools’. Again, not a complicated message, and one that’s worth teaching > in any event.**** > > ** ** > > To be sure, some people might remain confused even after > this, and might insist on believing that the government is endorsing > religion even when the government accurately and clearly reports that it > simply provides equal access. But this possibility that a few people might > be confused, even when the government makes clear that all it’s offering is > equal access – just like the equal access offered to religious groups in > many contexts, such as tax exemptions, the use of GI Bill grants, and so on > – doesn’t strike me as reason enough to reject equal access.**** > > ** ** > > Eugene**** > > ** ** > > Marci Hamilton writes:**** > > ** ** > > Apologies to Marty for overreading his reference to *Lukumi*. The facts > of *Bronx Household* indicate that the entire school is transformed into a > worship center every Sunday. Students entering to get their homework or for > any other reason would be confused regarding their school's support for the > religious organization. This moves the case away from the "club" cases. > For this reason, I do not share Marty's assumption about the Court's > willingness to overrule and/or to even take the case. **** > > **** > > If separation means anything historically or contemporaneously, surely it > means that a public building can draw the line at being home to full-scale > religious worship. Is a courthouse that hosts bar association events > required to permit its building to be transformed into a worship center on > the relevant Sabbath? Part of the reason this is difficult is because > *Rosenberger > *was decided wrongly in my view, but the cases do not mandate a return to > the days of establishment when public buildings were worship buildings and > vice versa.**** > > **** > > _______________________________________________ > 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. >
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