RFRA strict scrutiny and compelled speech in class
VOLOKH at MAIL.LAW.UCLA.EDU
Thu Aug 16 11:16:16 PDT 2001
Let's set aside for a moment the question of whether the
school is somehow bound by its knowledge of this student's preferences,
whether the school ought to accommodate the student as a matter of good
judgment, and whether the Free Speech Clause, per Barnette, gives the
student the right to be exempted.
Wouldn't a state or federal RFRA, if one were applicable,
clearly support the student's claim? Sherbert says that denial of benefits
can be a substantial burden -- presumably denial of a public university
education, or even of a good grade in a university class, would qualify.
RFRAs prescribe across-the-board strict scrutiny, with no provisos for
government as educator, employer, proprietor, and so on. And it's hard to
see how requiring a student to say certain words in class -- or for that
matter to play some role in a moot court exercise -- is narrowly tailored to
a compelling government interest. Or is there some defense that the school
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