maule at LAW.VILLANOVA.EDU
Wed Aug 15 17:03:25 PDT 2001
Isn't there a difference between what a state (public) school requires of a youngster who is in attendance because of state mandatory education laws ad what a state college requires of a student who VOLUNTARILY chooses to attend that college, VOLUNTARILY chooses to major in drama, VOLUTARILY chooses to take a course, and/or VOLUNTARILY chooses to try out for a play?
The lack of genuine school choice at the K-12 level puts those cases in a different posture, it seems to me, than those arising for college and post-graduate schools. Aside from contractual issues (e.g., college catalog and web site professed a respect for certain values or practices, and student relying thereon, finds herself facing a broken promise). Isn't it incumbent on prospective college applicants to make inquiries into the culture, practices, norms, and values of the schools they are considering attending, and of the departments in which they are considering majoring?
Granted, it might require some transferring by students who discover unpleasant things about their first college, but transfers are common, and occur for all sorts of reasons, including dissatisfaction with all sorts of things about the college. (Moreover, many state schools are so huge that the opportunity to change sections of a course also presents a viable option).
I don't see the compulsion.
Professor of Law, Villanova University School of Law
Villanova PA 19085
maule at law.villanova.edu
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>>> Mark.Scarberry at PEPPERDINE.EDU 08/15/01 03:30PM >>>
Another hypo: A student refuses to say the pledge of allegiance in grade
school, middle school, and high school. The student's reasons for refusal
include religious belief and also a belief that the government of the United
States is illegitimate. Of course, the student has the right to refuse under
The student now is a drama major in a state college. In a drama class
required for the major the student is cast as a high school student in a
play with a patriotic theme. A scene involves the high school class saying
the pledge of allegiance(with four live actors representing an entire
classroom of students). Before rehearsals begin, the student asks to be
excused from saying the Pledge. The drama teacher thinks that if one of the
actors playing high school students is silent during the Pledge, then the
issue of political dissent will be injected into the play. The drama teacher
believes such an issue would detract from the artistic integrity of the play
and from the force of its patriotic message. The drama teacher therefore
refuses to change the student's lines.
Variations: (1) The drama teacher permits the student to lip sync the Pledge
without saying any words out loud. The student refuses. (2) The play is
performed by students in a high school drama class or (3) during a drama
unit in a grade school class. Query: does the age of the student matter?
Does it matter whether the class is a required class (or that, in the case
of grade school, the putting on of the play is a required part of classroom
activity)? Is forced participation in such a play an attempt to change the
student's views by requiring participation in a patriotic exercise? If so,
is it any less objectionable than the forced saying of the Pledge ruled a
1st Am. violation in Barnett?
The facts reported by Vance suggest that (in the actual "fascinating case")
part of the teacher's intent in refusing an exception was to undermine the
student's religously-based moral views. Forcing the saying of prescribed
words to change a person's political or religious views should be a clear
violation of the 1st Amendment.
Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu
From: Bradley P Jacob [mailto:bradjac at REGENT.EDU]
Sent: Wednesday, August 15, 2001 11:44 AM
To: RELIGIONLAW at listserv.ucla.edu
Subject: Re: Fascinating case
Vance raises some powerful points. I was struck by the court's insistence
that the young woman was only being asked to say certain words, not to
affirm any idea in a way that might constitute coerced speech. But is it
not true that in asking her to say the words on stage, the university is
asking her to implicitly endorse the idea that it is morally acceptable to
say those words in public? And this is clearly a concept with which the
plaintiff did not agree.
From: Law & Religion issues for Law Academics
[mailto:RELIGIONLAW at listserv.ucla.edu]On Behalf Of Vance R. Koven
Sent: Wednesday, August 15, 2001 1:57 PM
To: RELIGIONLAW at listserv.ucla.edu
Subject: Re: Fascinating case
At 05:39 PM 8/8/01 -0700, Volokh, Eugene wrote:
>Straight out of a hypo that has been mentioned on this list several times
>before: Axson-Flynn v. Johnson, 2001 WL 881043 (D. Utah. Aug. 3), rejects
>a university drama student's Free Speech Clause and Free Exercise Clause
>claim based on her curriculum requiring her to use God's name in vain.
I haven't seen any further discussion of this case on the list, so I
thought I'd bring it up, because it really is a fascinating case.
There are aspects of the court's reasoning that seem pretty solid, such as
the distinction between what the student is compelled to say qua student
and what she would be compelled to say qua actor. Unfortunately, there are
some rather disturbing and, I think, erroneous statements by the court and
some problems associated with ignoring some significant facts.
In the discussion of the "exemption exception" relating to whether a law or
policy is neutral and of general applicability, the court foolishly tries
to get out of considering whether the drama department's allowing a Jewish
student to get out of class on Jewish holidays qualifies as an
individualized exemption by saying that the policy itself did not contain
such an exemption. Seems to me that a policy as applied is every bit as
much a policy as one that's on paper.
Even in the question of whether the student's speech could be considered
coerced (indeed, even implicated) by reciting lines that were personally
offensive, the court's sound instincts were marred by failing to consider
the facts, recited in the introduction, that the department itself did not
endeavor to make the distinction to the student between what *she* could be
considered as saying and what the *character* she plays is saying. In
fact, the ham-fisted department made it clear that it wanted her to "get
over" her silly Mormon beliefs and just say (among other things) words that
our moderator would not be happy to see appear on this listserv. If, for
example, in a literature class the teacher asked a student to read a
particular passage, and it contained words the student didn't want to
speak, I find it hard to imagine that the teacher would force the student
to say them, rather than, for example, "expletive deleted." Another point
the court neglected was the effect of the department's allowing the student
to enroll in the class after she had clearly said, in answer to specific
questions, that she would not do or say certain things (she said, for
example, that she wouldn't disrobe on stage--since the department didn't
appear ever to have required her to do so, can this be taken as a kind of
secular exemption to the policy?). If the rationale for forcing her to say
them nevertheless is based on the distinction between the student and the
character, shouldn't they have said so up front?
The rest of the court's reasoning strikes me as mostly makeweight. The
hybrid rights discussion, though one can sympathize with a court's dilemma
in applying an essentially incoherent rule, hinges on whether either the
free speech or free ex claims were "colorable," and therefore is largely
result-driven. Ditto the qualified immunity discussion. It will be
interesting to see if the case goes up on appeal.
*Vance R. Koven Counselor at Law *
* Law Offices of Vance R. Koven *
*20 Park Plaza, Suite 633 Boston, MA 02116 *
*tel: 617-482-3852 fax: 617-482-4972 *
* net: vrkoven at world.std.com *
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