dlaycock at MAIL.LAW.UTEXAS.EDU
Wed Mar 4 13:51:54 PST 1998
Avoiding controversy is at the heart of much government policy,
especially in public schools. Also in most "content neutral" regulations
restricting speech -- government tries to ban speech on both sides of
controversial topics, so no one will be distracted by the controversy. That
is the only way to make sense of rules that permit commercial advertising
but not political or religious advertising.
It is therefore clear that government does treat avoiding
controversy as *a* governmental interest.
Avoiding controversy should not in my view ever be a sufficiently
*important* governmental interest to justify overriding a constitutional
right -- although the Supreme Court sometimes treats it as such.
This thread has ostensibly been about a third question -- whether it
is a *legitimate* governmental interest when the controversy to be avoided
is about religion. Consider that question with a different example. Very
few schools teach comparative religion. Why not? My guess is that there
has been no strong demand and many schools have not considered the
possibility, and that most of those who did shuddered at the potential for
controversy and immediately dropped the idea. Avoiding controversy is a
reason for not teaching comparative religion. Constitutionally
illegitimate? I don't think so. Not a secular purpose? I don't think so.
Bad policy? Probably.
So what about taking evolution out of the schools as a way of
avoiding controversy? I think we are left with the fact that many on the
list simply don't believe that that is the reason state legislatures do
this. I don't think I believe it either. But that is a question of actual
motive, with all its well known problems. It is not a question of whether
there *could be* a secular purpose.
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
dlaycock at mail.law.utexas.edu
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