High School Choir Song Selection

Sun Dec 21 11:02:34 PST 1997

Marty Lederman raises the following good questions:

1.  Did Rotolo violate the Establishment Clause?  Does it matter whether the
songs with "Christian themes" were part of the classical choir repertoire
(Bach, Handel, etc.) or were (as in Bauchman) a bunch of "contemporary
Christian" songs?  Does the EC analysis depend upon whether Rotolo chose such
songs (i) because of or (ii) in spite of, their Christian content?  How about
the curious reference to the administrators' apparent objection that no song
"referred to any other religion"?  Is there a Larson v. Valente sect-
discrimination issue here?

Obviously context is going to matter, and I do think the crucial
question is whether music was chosen because of its Christian
content.  Sect discrimination may be relevant only insofar as failure
to include any other holiday music clearly rules out claims that this
was a program designed to sing music from different traditions.  But
if the claim is that this was a program designed to sing great music
from Western culture, the ommission of non-Christian music seems less
troublesome.  More facts are obviously needed.

2.  Assuming no EC violation, would Rotolo have a viable claim against the
school under pre-Boerne RFRA (or an equivalent New Mexico statute)?

It's hard to see how a public school teacher would have a free
exercise right to choose religious songs for a school choir.

3.  Again assuming no EC violation, what are the merits of Rotolo's possible
First Amendment claims based on (i) Pickering/Connick/Waters doctrine and (ii)
"academic freedom"?

If school administrators can control the content of a student
newspaper, than surely they can control what is sung at a student

Mark A. Graber
mgraber at bss2.umd.edu

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