Salazar v. Buono - A Hypothetical

[John Taylor]

It's a good hypo for isolating one aspect of Salazar that is troubling.  On Chris's hypo, I think it is fairly clear that the school district's "new" practice shouldn't solve the problem.  In the hypo, the school has overwhelming reason to know that, given the opportunity, Samantha and Charlie will pray.  By singling them out and giving them a platform "to say whatever they want," the school acts with substantial certainty that they will pray and (almost certainly) with a purpose that they will pray.  That seems enough to negate the idea that their prayers could be deemed sufficiently "private" to remove EC concerns.  Similarly, the government knows full-well that the VFW will preserve the cross and the land is being transferred to the VFW  (as opposed to being, say, auctioned off) precisely for that reason.  Is this really enough to completely dissolve EC concerns?
 
I tend to be more sympathetic to the positions of those on the list who have argued that it is problematic to use a sectarian symbol as a war memorial (even with the best of intentions), and I am also a little reluctant to say the land transfer cures all for the sorts of reasons suggested by Chris's hypo.  Still, Salazar seems to me a harder case than the hypo for at least three reasons.
 
1)  I think Prof. Duncan has a point that the "captive audience" character of the school environment makes some difference in one's reaction to the hypo.  
 
2)  The government's reasons for wanting to "stack the deck" in favor of private religious speech in Salazar seem more defensible than in Chris's hypo.  In the hypo, the school just seems to be trying to make an end-run around the school prayer ban.  In Salazar, a government official who genuinely cared about separationist values might still be disturbed at the idea that something regarded as a "war memorial" might be taken down.
 
(On the other hand, maybe this point doesn't mean so much after all.  Perhaps every legitimate concern here would be addressed by having the "war memorial reversionary" clause but allowing someone other than the VFW a shot at getting the land.  I guess this would depend in part on whether the attachment to the idea that the cross should serve as a war memorial is taken as attachment to the history of the memorial or attachment to its religious character).
 
3)  Salazar probably seems harder because (as prior discussions have shown), there is considerable disagreement about whether the cross as a war memorial violates the EC even if it is clearly the government's speech.  In contrast, I suspect that there would be a good deal less dispute (at least on this list) that the constitution does not permit school officials to ask for student volunteers to lead prayers (as in the pre-lawsuit stage of Chris's hypo).  If one tried to imagine a case where (almost) everyone would agree the cross violated the EC on government land, things look a little different.  Suppose, for example, that the cross was inscribed with words to the effect that it was intended to memorialize the Christian soldiers who fell during WW I.  (I know this is probably unrealistic, and perhaps this underlines the idea that the choice of the cross was likely not self-consciously exclusive.)  My guess is that almost everyone on this list would find the cross unconstitutional on government land on this version.  Would it be OK for the government to just transfer the land (even for fair market value) with that cross to a specific group that it knew would preserve the message the government clearly could not utter on its own?  I'm doubtful.
 
John Taylor
Visiting Professor, UNC School of Law
Professor, WVU College of Law
 
 
 
 

>>> "Christopher Lund" <ed9034 at wayne.edu> 4/29/2010 5:56 PM >>>
So I'm reading the opinion and interested in Justice Alito's conclusion
that the land-transfer statute properly cures any potential Establishment
Clause problem.  

Here's a hypothetical I wanted to raise for the list.  (I hope it's apt --
I'm trying to isolate the privatization issue and put it in another
context -- but if it's not, I'm sure someone will tell me.)

A public school district asks for student volunteers to lead prayers in
the classroom.  The prayers are for our soldiers abroad in Iraq and
Afghanistan.  Let's say two students, Samantha and Charlie, volunteer and
lead those prayers.  There's a lawsuit.  The practice gets struck down
under Engle v. Vitale, Treen v. Karen B., Lee v. Weisman, and so on.  The
school says it has a plan to fix the problem.  It says that it will no
longer ask Samantha and Charlie to lead prayers.  Instead, Samantha and
Charlie will simply have a minute to speak however they want relating to
the wars in Iraq and Afghanistan.  Samantha and Charlie, now free to say
whatever they want, say that they will continue to offer prayers.

Has the school district fixed the problem?

Best,
Chris

___________________________
Christopher C. Lund
Assistant Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
lund at wayne.edu
(313) 577-4046 (phone)
(313) 577-9016 (fax)
Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

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