Student Fees Upheld/Santa Fe

[Lederman, Marty]

But the critical point is that the "voters" in the referendum, as in Santa Fe, are engaged in state action, and may not (according to Kennedy) choose to benefit a *private* speaker based on the viewpoint of the anticipated speech.  Of course (and this is in response to Patrick Schiltz's post), it is *possible* that the majority will choose a public speaker without regard to the content of the expected speech; nevertheless, the significant risk of viewpoint discrmination renders unconstitutional the unbridled discretion that the electorate has.  (Lakewood.)  I think that's what Kennedy is getting at in today's opinion.

To be sure, if (as in Michael McConnell's example) the voters are merely voting to choose a *state* (rather than private) speaker, it's perfectly ok if the decision is based on the speaker's anticipated viewpoint, since the state speaker who is elected may "speak" in a viewpoint-discriminatory manner.  But if the chosen speaker is (as Michael suggests) a *state* actor, then the one viewpoint that she *cannot* promulgate in her official capacity is a view for (or against) religion.  So, if Michael is correct, and the Santa Fe students are, in effect, electing a person to a particular state "office" (football-game speaker), then any resulting prayer is unconstitutional, and the policy that expressly permits that prayer also is facially unconstitutional.

Marty Lederman
(in my private capacity)

-----Original Message-----
From: Michael McConnell [mailto:Mcconnellm at LAW.UTAH.EDU]
Sent: Wednesday, March 22, 2000 12:59 PM
To: CONLAWPROF at listserv.ucla.edu@inetgw
Subject: Re: Student Fees Upheld/Santa Fe


I think Marty Lederman identifies the right issue -- whether a
student vote for a speaker is equivalent to a student vote on the
content of the speaker's presentation -- but I think he may be wrong
about the answer. Analogy: it would be unconstitutional to pass a law
limiting a particular office to members of a particular religion, but
it is not unconstitutional to allow an election, even if some (many)
voters choose to vote on the basis of religion. That, it seems to me,
is the difference between Southworth and Santa Fe.


> Priority:      3
> Importance:    Normal
> Date:          Wed, 22 Mar 2000 14:32:32 -0400
> Reply-to:      Discussion list for con law professors
>                <CONLAWPROF at listserv.ucla.edu>
> From:          "Lederman, Marty" <Marty.Lederman at USDOJ.GOV>
> Subject:       Re: Student Fees Upheld/Santa Fe
> To:            CONLAWPROF at listserv.ucla.edu

> Michael McConnell agrees with the Court that a student vote for
> which private speakers should be preferred is not viewpoint-neutral.
>  (And the vote is attributable to the state, according to the Court
> (see slip op. p.2); if it weren't, there would be no reason to
> question its viewpoint-neutrality.)  But that's precisely what's at
> issue in the Santa Fe prayer case.  Accordingly, I would think that
> the student vote for a football-game "speaker" could be justified
> under the Free Speech Clause *only* if the student who wins the vote
> is thought to be speaking on behalf of the school.  But if *that's*
> the case, then any resulting prayer by that student/state actor is
> unconstitutional, right?
>
> Marty Lederman (in my private capacity)
>
> -----Original Message-----
> From: Michael McConnell
> Sent: Wednesday, March 22, 2000 11:06 AM
> To: CONLAWPROF at listserv.ucla.edu@inetgw2
> Subject: Re: Student Fees Upheld
>
>
> I have not read the entire opinion, but it appears to hold that the
> majority referendum method, under with the PIRG group is funded, is
> unconstitutional. The theory, presumably, is that this method is not
> viewpoint neutral but rather favors the majority.
>
> That seems right to me. But it also seems at tension with the
> assumption that allocation of funds by the student representative
> body is viewpoint neutral. That assumption was predicated on the
> stipulation of the parties. I don't understand the stipulation. The
> case appears to have been decided on the basis of a stipulation that
> has no conceivable relation to reality. What is the precedential
> effect of this decision in the next case, where the plaintiffs
> allege that funds are distributed not in a viewpoint-neutral manner
> but according to the political preferences of the majority?
>
>
> -- Michael McConnell (U of Utah)
-- Michael McConnell (U of Utah)