interesting crim law questions

[Michael deHaven Newsom]

Is it clear that the alleged curse was uttered in the presence of the
teacher (a) in school or (b) elsewhere but while the teacher and the student
were on school business, or (c) uttered in the presence of other school
children, teachers, officials or administrators (i) in school or (ii)
elsewhere where the "school relationship" might be fairly said to subsist?
If the answer is no in all of these cases, then I agree the case is a
no-brainer: the student wins going away.

Michael deHaven Newsom
Howard University
School of Law

Alan Gunn wrote:

> At 11:13 AM 11/2/2000 -0800, Volokh, Eugene wrote [in part]:
> >>>>
>
> >         I've been much enjoying the discussion of factual
> > impossibility, but I wonder whether we can tie it back a little bit to
> > the particular law-of-government-and-religion issue with which we
> > started -- may the government (either as K-12 educator or otherwise)
> > punish people for engaging in religiously themed curses, because the
> > listener might believe in the curse, because the willingness to cast
> > the curse shows a bad mental state on the curser's part, or because
> > the curse may interfere with school discipline or workplace morale?
> >
> >
>         Perhaps I am missing something basic here, but these cases seem
> to me to be no-brainers, or close. Suppose a student greets her teacher
> every morning by saying, "I wish you would die." Surely (I hope) the
> school can discipline the student. If so, I hope the answer doesn't
> change if the student says, instead, "I hope God strikes you dead." The
> question is only whether a school can insist that its students treat
> teachers and other students decently. Whatever the free exercise of
> religion may mean, it surely doesn't confer a license to kill, or even
> to try to, whether the attempt has any possibility of succeeding or not.
> The criminal-law stuff strikes me as beside the point: whether or not
> someone can be sent to jail for trying to poison a teacher by putting
> substances that are actually harmless in the teacher's coffee, what does
> this have to do with whether the attempt--if meant seriously--can lead
> to discipline? And if it can, how can the answer possibly change if the
> student's method of attack is supernatural? Does anybody really think
> that free exercise, in the context of a school, goes that far?
>
> Alan Gunn
> Notre Dame Law School