Majority vote prayer after Southworth

[Scarberry, Mark]

The majority rule in Southworth involved direct choices of programs with
stated viewpoints. Perhaps that is distinguishable from majority choice of a
person to speak, where that person is then free to express whatever
viewpoints he or she wishes. At least the viewpoint discrimination, if any,
is less direct where a person is elected. Note also that Justice Kennedy
does not flatly rule out majoritarian funding decisions but rather asks what
safeguards are in place to prevent viewpoint discrimination. As applied to
election of graduation speakers, perhaps a ban on campaigning for graduation
speakers' slots and on committing before the voting as to what would be
included in the speech would provide something of a safeguard against
viewpoint discrimination in the election.

That said, I am more comfortable with the process used by the Madison School
District of choosing speakers on clearly neutral secular grounds, such as
grade point average, or perhaps a lottery among student volunteers. Also, to
the extent that the Southworth program provided pro rata funding based on
student voting, it seems to me that it should be permissible. If 85% of
students want their fees used for leftist programs, then I don't have a
problem with 85% of the fees going to such programs. Perhaps this confirms
that allowing students to express themselves freely where they are chosen as
graduation speakers randomly or on secular grounds is permissible, because
over time the student expressions will likely reflect the views of the
students on a sort of "pro rata" basis. To the extent elections are a
"winner take all" approach to choosing speakers, they fail to have this "pro
rata" nature. Perhaps if there are to be 4 speakers, we could allow students
to use cumulative voting (from corporate law: each student would cast 4
votes and could cast them all for one candidate or spread the votes around)
so that minorities would be more likely to be able to choose a speaker to
represent their viewpoints. Perhaps that, combined with a ban on campaigning
and on pre-election commitments to speech content, would sufficiently guard
against viewpoint discrimination.

Mark S. Scarberry
Pepperdine University School of Law
mailto:mark.scarberry at pepperdine.edu


-----Original Message-----
From: Michael MASINTER [mailto:masinter at NOVA.EDU]
Sent: Wednesday, March 22, 2000 7:27 AM
To: RELIGIONLAW at listserv.ucla.edu
Subject: Majority vote prayer after Southworth


The last paragraph of Justice Kennedy's majority opinion seems significant
to both the upcoming argument in Santa Fe and the recent 11th Circuit
decision in Adler:

  "It remains to discuss the referendum aspect of the Universitys program.
While the record is not well developed on the point, it appears that by
majority vote of the student body a given RSO may be funded or defunded.
It is unclear to us what protection, if any, there is for viewpoint
neutrality in this part of the process. To the extent the referendum
substitutes majority determinations for viewpoint neutrality it would
undermine the constitutional protection the program requires. The whole
theory of viewpoint neutrality is that minority views are treated with the
same respect as are majority views. Access to a public forum, for
instance, does not depend upon majoritarian consent. That principle is
controlling here. A remand is necessary and appropriate to resolve this
point; and the case in all events must be reexamined in light of the
principles we have discussed."

Comments?

Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at law.acast.nova.edu             Chair, ACLU of Florida Legal Panel