No subject

[Robin Charlow]

As to (A), one of the facts that appeared particularly significant was
that the speakers were chosen by majority vote, so that minority voices
are effectively absent.  Unless I misunderstood, I thought you retained
that fact in your hypo, which is why I thought it would still be
unconstitutional, despite the totality of facts.
As to (B), it might be the best they could get, but once the lottery
winners started giving their speeches it seemed that surely some
heretic(s) would be among them, rendering the enterprise
counterproductive.  Perhaps there are so few it wouldn't matter, but one
wouldn't know that in advance.

Robin Charlow
Hofstra University School of Law
Hempstead, New York  11549
email: lawrdc at hofstra.edu
phone (516) 463-5166

>>> "Richard D. Friedman" <rdfrdman at UMICH.EDU> 06/19/00 10:46PM >>>
I don't think it's clear on either point.  (A) The decision appears to
have
been quite fact-based, and two of the facts that were different in the
actual
case from my first hypo (election by students) are (1) no attempt in
the hypo
to confine the substance of the statement beyond the generalization
that it
should be appropriate for the occasion (and of course it would be
crucial that
a applied there would be no after-the-fact attempt to encourage
religious
content), and (2) in the hypo, there's a new student for each game,
rather than
a choice for the entire season (a factor emphasized by the Court) -- so
the
entire oepration may appear more pluralistic.  I assume, for example,
that if,
as at a small high school in my town, every student is invited to make
a
statement at graduation, there is no Establishment Clause violation if
some of
them make statements with religious content. (Is it different if they
also ask
the audience to sing along, and it's to a religious song?)

        (B) As to what the authorities would accept, I don't think
they're in a
position to be choosy.  They've just lost in the big time.  If they
were coming
to me for advice (not a position I'd relish, because I'm glad they lost
and
htink they should have) and asked what could they salvage, I might
suggest that
something like my second variation -- the selection of a student by lot
for
each game -- would offer a pretty good chance of being approved,
because the
perception of endorsement is diminished further by elimination of the
election.  And the chance might be further enhanced if the identity of
each
selected student is kept anonymous, so that the student could choose
without
recrimination not to make a statement at all.  As to what it doesf or
them, if
Santa Fe is the type of Texas town in which a lot of people care
passionately
about making religious invocations before football games -- and I
gather from
the majority opinion that it is -- then presumably many of the
students
selected by lot would choose to make religious statements.  Of course,
there's
a problem:  If this policy is too successful, then it appears simply to
be an
evasion of the previous decisions preventing the school district from
using
more overt means of generating religious invocations.  This path
dependence --
you can't get half a loaf because you previously tried to get a full
loaf and
were told you couldn't -- is one of the interesting aspects of the
majority
opinion and, in my novice's view, of this whole area of law.

Rich Friedman
University of Michigan Law School

At 05:24 PM 6/19/00 -0400, you wrote:
>With the very big proviso that I've only read the syllabus and not
the
>decision, it seems as though the first proposal would still be found
>unconstitutional and the second would be unacceptable to the
authorities
>who instituted the system in Santa Fe.
>
>Robin Charlow
>Hofstra University School of Law
>Hempstead, New York  11549
>email: lawrdc at hofstra.edu
>phone (516) 463-5166
>
>>>> "Richard D. Friedman" <rdfrdman at UMICH.EDU> 06/19/00 05:00PM >>>
>
>Pardon me if the conversation has moved beyond -- but I was prompted
>to
>subscribe to this list by the Supreme Court's decision today in Santa
>Fe
>Independent School District v. Doe, and I'm curious what people think
>would
>or should happen if the District came back with this policy:
>Before each football season, a number of students equal to the number
>of  home football games shall be selected from among volunteers [two
>variations:  (a) by student vote, each student having one vote to
>cast;  (b) by lot)], each one to have the option immediately before
>one
>game to
>make a statement over the stadium's public address system.  The
>statement  shall be an appropriate one for the occasion.  [Possible
>addition:  The
>school shall not reveal the identity of any student chosen, except to
>the
>student, until such time as the student makes the statement.]
>
>If nothing else, I guess that makes a potential exam question for
those
>who
>teach the subject, which I no longer do.
>
>Rich Friedman
>University of Michigan Law School