Student Suspended for Casting A Curse

[James Maule]

>>> Alan.Gunn.1 at ND.EDU 11/01/00 03:24PM >>> asks

        Doesn't the student's case have a fatal flaw? If the student believed that
the spell would injure the teacher, the student can surely be suspended for
trying to harm a teacher, whether the spell worked or not. (This is the
standard "human sacrifice" hypo, writ small.) If the student didn't really
believe that, how are the student's religious (or any other kind of)
"rights" violated by the suspension?

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The fact that the student believed that the spell would injure the teacher makes the student "guilty" of what? Attempt? Certainly not of actual injury (as best I can figure though no one has yet clarified what happened). Attempt? Aside from the school's code of conduct being different from criminal law, it seems difficult to imagine a successful prosecution of a defendant for attempted assault of another person through recourse to what at best can be called theological ritual. The fact that the student "believes" the spell works doesn't mean the student has done a required actus reus. (Cf. crim law hypo of believing that pointing a finger at someone and saying "bang bang" can kill someone.) Of course, the school may have a code of conduct that prohibits these sorts of "attempts."

Suppose I believe that saying "You are a moron condemned by God" to a person causes that person to have five years of bad luck, including accidents causing injury. (Throw in, two days later the person is injured in a slip and fall). Have I committed a crime when I say those words to someone? Of course not. Does prohibiting me from saying those words in public to a public figure violate my "rights"? Perhaps. Do I believe it works? Surely. Now if the school has a rule prohibiting me from saying these words, but I consider their expression to be theological, then the question is the extent to which a student's rights (as far fetched as they may be) can be suppressed. On the speech side the schools get a lot of leeway. Perhaps on the religious side as well?



Jim Maule
Professor of Law
Villanova University School of Law
Villanova PA 19085
maule at law.villanova.edu
http://vls.law.vill.edu/prof/maule