"Coercion" and plea bargaining [long]

David Cruz dcruz at LAW.USC.EDU
Wed Aug 22 14:22:12 PDT 2001


On Wed, 22 Aug 2001, David Bernstein wrote:

> [snip]
> By the way, David and other Californians teaching at private schools, is
> anyone planning to challenge the Leonard Law post-Dale?  The (unappealed
> district court) Stanford decision was based on an interpretation of
> expressive association that is now clearly been shown to be wrong.

A very good question.  As I read Gerhard Casper's statement on the
district court's decision in Corry v. Stanford University, available at
http://www.stanford.edu/dept/pres-provost/president/speeches/950309corry.html
for those interested, it could well be taken to articulate a Dale-esque
defense of Stanford's rules.

I'm not certain, however, that the Leonard Law would be a good candidate
for a facial challenge.  (If California courts take a welcoming approach
to declaratory judgment actions, then maybe I'm wrong.)  At any rate, I
haven't heard any rumblings here about specific, ripe applications of the
Leonard Law that the University might be sufficiently willing to challenge
as to commit itself very publicly to being against First Amendment
principles (in some particular, narrow context with profoundly weighty
countervailing considerations, of course).

But while we're on this topic, suppose some secular private college
challenges the Leonard Law under Dale and loses despite having a sincere
expressive position.  Would it then be able to challenge the Leonard Law
as impermissibly discriminating in favor of religion when it provides that
"This section does not apply to any private postsecondary educational
institution that is controlled by a religious organization, to the extent
that the application of this section would not be consistent with the
religious tenets of the organization."?  Any ideas how robust permissive
religious accommodation doctrine would prove in such a context, in light
of the Court's increasing embrace of "equal treatment is not
establishment" in the speech context?  Would the inverse ("unequal
treatment is establishment") likely be held in the hypothetical context
I'm positing?

-David B. Cruz, USC Law (Cal.)
[in my personal capacity, as always]



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