Fascinating case

James Maule maule at LAW.VILLANOVA.EDU
Wed Aug 15 17:05:57 PDT 2001

Following up, where's the compulsion? (Aside from imposing the requirement on already-matriculated students (a reason most of the changes we make here are done with effective dates of "for students matriculating after dd/mm/yy") and aside from a failure to disclose this requirement in catalogs and on web sites so that the student can make a fully informed VOLUNTARY decision to attend UCLA Law School).

Jim Maule
Professor of Law, Villanova University School of Law
Villanova PA 19085
maule at law.villanova.edu
President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com)
Publisher, JEMBook Publishing Co. (www.jembook.com)
Maule Family Archivist & Genealogist (www.maulefamily.com)

>>> VOLOKH at MAIL.LAW.UCLA.EDU 08/15/01 03:40PM >>>
        Since we're talking hypos, here's one more from a problem in the
compelled speech unit of my textbook.  (An alternative hypo might be a
required paper on how the legal system can better fight racial, religious,
gender, and sexual orientation bias.)

                UCLA Law School changes its graduation requirements to
require each student to write a graded 20-page paper on how the legal system
can increase compliance with ethical rules.  Does this violate the student's
right to be free from compelled speech?  Why or why not?

        Note that unlike in a drama class, where usually (though not always)
the teacher doesn't want to use the required lines as a means of teaching
any ideology to the actor, here -- as in Barnette -- the requirement seems
primarily aimed at influencing the student.


> -----Original Message-----
> From: Scarberry, Mark [SMTP:Mark.Scarberry at PEPPERDINE.EDU]
> Sent: Wednesday, August 15, 2001 12:30 PM
> To:   RELIGIONLAW at listserv.ucla.edu
> Subject:      Re: Fascinating case
> 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
> *Barnett*.
> 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
> -----Original Message-----
> 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.
> Brad Jacob
> -----Original Message-----
> 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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