aebrownstein at UCDAVIS.EDU
Sat Dec 9 18:49:34 PST 2000
Let me clarify my comments. Choir is a class at Davis High School as it is
at many other schools. Participation in the concerts is required of the
students enrolled in the class (although students who objected to singing a
particular song on religious grounds would probably be permitted not to
participate in that part of the program.) The choir director selects all of
the songs the choir sings. Students have no role in song selection.
If Jim's comments are limited to private expression that occurs in open
forums on public property, I understand his position. That is what I was
referring to when I distinguished public forums from government speech or
government subsidized or sponsored speech. It is the latter context where
the government picks the music, commissions the painting, or chooses the
sculpture that raises the Establishment Clause problems I was trying to
illustrate with my example of the concert choir.
At 05:53 PM 12/9/00 -0500, you wrote:
>>>> aebrownstein at UCDAVIS.EDU 12/09/00 05:00PM >>> writes
>Jim's suggestion may work if we are talking about private speech in some
>kind of public forum. At least in that context there is a constitutional
>requirement of neutrality without regard to the Establishment Clause. And
>there are relatively low transaction costs if private actors want to add
>unrepresented religious speech to the forum by presenting their own
>If we are talking about government speech or government sponsored or
>subsidized speech, the issue is much more complicated. First, there is no
>speech clause requirement of content neutrality so we have to rely on
>Establishment Clause or equal protection principles to avoid religious
>preferences. Second, a requirement prohibiting religious preferences will
>be just as subjective and indeterminate as an endorsement test. Take the
>simple example of a public school's Christmas concert or Holiday concert or
>Winter concert. Which religion's songs will be included? Is there a problem
>if there are some Hecate worshippers in the community and their music is
>I've snipped here because it is at this point, perhaps, that the analysis
takes a turn that I do not understand, or perhaps I do understand and
disagree with the reasoning. If a public school "has" a concert, who is
speaking? To me, the public school is a public forum. The students are
permitted to speak. Time and manner regulation keeps all other citizens
from claiming a right to "speak" (or sing) at the concert.
>I agree that if the school ORDERS or even PERSUADES the students to sing
certain songs then the government is acting. But if the fact the concert is
in a public building makes it government speech or government sponsored or
subsidized speech, then we're back to the public square which the
government owns and maintains (and subsidizes).
>I understand that if a school board dictates that only one perspective on
an issue be taught, that is the perspective of a particular religion, that
there's government speech that needs to be squashed because it it
tantamount to establishment.
>To illustrate, let me answer the question. If there are children who want
to sing Hecate music, then why not? If there are people "in the community"
who are not students, then they have no claim to dictate what the children
choose to do. If, of course, the children have been taught by the school
that only the hymns of a particular religion exist (unlikely if the
students have home lives or religious experience), or that such hymns are
the only ones permitted, then, yes, the child who wants to sing Hecate
music should be able to do so.
>I hope this explains in a better way what I'm trying (with some lack of
articulation, I guess) to ask.
>Professor of Law, Villanova University School of Law
>Villanova PA 19085
>maule at law.villanova.edu
>President, TaxJEM Inc (computer assisted tax law instruction)
>Publisher, JEMBook Publishing Co. (www.jembook.com)
>Maule Family Archivist & Genealogist (www.maulefamily.com)
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