dlaycock at MAIL.LAW.UTEXAS.EDU
Mon Oct 25 15:16:09 PDT 1999
I don't know enough about the financing and management of the Brooklyn
Museum to have a firm opinion on that case. But it is plainly different
from a school voucher plan. The only question is whether the difference is
great enough to put it over the line. The difference is this:
Nearly all proposals for vouchers or other forms of government aid to
private schools at the elementary and secondary level contemplate that all
schools will be treated equally. Whatever amount of money is available
will be divided on some form of per-student basis. The speech of the
schools will remain their own; the government will not be promoting a
particular message. The only significant departure from this scenario are
the people who think government can fund private secular schools without
funding private religious schools. That has always seemed to me the most
obviously unconstitutional of all the alternatives, because it is so
obviously viewpoint discriminatory.
Government does not fund all the art or all the museums. The curators of
the Brooklyn Museum chose this art on some criterion. I don't know if
their choices are effectively the government's choices; I don't know how
much government funding they get, and funding alone does not create state
action after Rendell-Baker. I don't know if they are selective enough
that they can be said to have endorsed whatever they exhibit. But
certainly they are much closer to endorsing what they exhibit than a
voucher plan is to endorsing every school some parent selects for her child.
At 01:27 PM 10/25/1999 -0500, you wrote:
>At 12:37 PM 10/25/99 -0500, Douglas Laycock wrote:
>> The government does not generally have to be viewpoint neutral.
>>has to be viewpoint neutral on religion, and it has to be viewpoint neutral
>>in subsidizing private speech. When it is sending its own secular message,
>>it can say what it wants.
> Viewpoint neutrality on religion is not in issue here. As to
>private speech," does this mean the mayor is wrong (art being "speech")? If
>the answer is "yes," fine (in terms of consistency). But if it's "no"
>(which was the way I read Rick), we seem to have a distinction between
>paying for schools and paying for museums. What might that distinction be?
>Notre Dame Law School
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
dlaycock at mail.law.utexas.edu
More information about the Religionlaw