Fascinating case

James Maule maule at LAW.VILLANOVA.EDU
Wed Aug 15 21:27:25 PDT 2001

This argument is why I would put the burden on the school (contractually) to disclose and on the student to choose freely with full disclosure. If the student applies, is admitted, and chooses to matriculate, the student should be estopped (short of fraud, non-disclosure, or the like) to object to practices and requirements not of the student's liking.

After all, if a person walking down the street sees a building in front of which is a sign indicating it is a Methodist Church, the person has the choice to enter or not enter. It is not incumbent on the church (though it is free to do so) to interrogate the person or ask the person to identify tenets and practices of the Methodist Church that the person finds offensive or contrary to their personal theology or ethos. As a practical matter, many churches post signs ranging from warnings ("silence, please" and "do not touch") to requests ("men are requested to uncover their heads and women to wear hats or scarves"). Imagine someone entering the church, taking offense at being asked to wear a hat, and suing. Don't want to wear a hat? Don't enter the church.

I understand the principles described by Eugene in terms of compulsion and voluntariness. One root of the fascination of this case, it seems to me, is that the courts don't quite understand the difference between genuine compulsion and blame-shifting. Until that gets straightened out, what should be an easy case will remain troublesome.

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)

>>> RJLipkin at AOL.COM 08/15/01 07:09PM >>>
In a message dated 8/15/2001 6:48:02 PM Eastern Daylight Time,
bradjac at REGENT.EDU writes:

> Why admit someone who, by her own admission, is conscientiously prohibited
> from completing an essential component of the educational process (assuming
> that profanity was really essential to the theater program in question)?
       I'm not sure what context is presupposed and what process is required?
Should we add a section to applications asking applicants which courses, or
what topics within a course, he or she is "conscientiously prohibited" from
engaging in? From my perspective, a greater sensitivity to students' needs
and convictions is also appropriate on a personal or one-to-one basis.  But
are you suggesting that we should attempt to institutionalize such a process?
Where we'll this take us morally if not constitutionally? Were my daughter
to attend Regent University and major in drama should the students and
administration there accommodate her refusal to utter some locution or set of
words in a Christian play--words that are perfectly appropriate from a
Christian perspective? To leap beyond such pedestrian examples--should City
College in New York accommodate a drama student who refuses to utter
"Brooklyn College sucks." (please excuse the expression) in a new play
premiering at the senior university? I think institutional sensitivity and
accommodation is an attractive ideal, but just how can we make it operational?

Bobby Lipkin
Widener University School of Law

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