The simple logic of equal treatment

[Volokh, Eugene]

        Well, I think that Prof. Newsom and I have probably set forth our
views pretty thoroughly by now, so I think I'll just leave it at that.

        My only clarification of my earliest post is that I think the Court
will uphold an across-the-board rule requiring parental consent for going to
the meetings of all student groups.  I didn't mean to suggest that it would
uphold such a rule if it's limited to groups that "proselytize," even if
that word is read to include political proselytizing -- I don't know what
the answer there would be.

        Eugene

> -----Original Message-----
> From: Michael deHaven Newsom [SMTP:mnewsom at LAW.HOWARD.EDU]
> Sent: Friday, June 15, 2001 6:47 AM
> To:   RELIGIONLAW at listserv.ucla.edu
> Subject:      Re: The simple logic of equal treatment
>
>
>
> "Volokh, Eugene" wrote:
>
>
>
>               I'm puzzled here.  I had thought that the club in this case
> was open only to students who had parental consent.  I'm not sure whether
> this was pursuant to a school requirement of parental consent,
>
>
> In the real world parental consent is not the "block" or "barrier" that
> Good News would have us believe.  See, for example, in a slightly
> different fact situation, McCollum.  Some of the earlier state cases do a
> fairly good job of explaining why the dynamic of coercion is far more
> complex than the simplistic model that drives Good News.  I'll take my
> stand with family values, the right of parents to control the religious
> formation of their children without being accosted in that regard by
> overzealous majoritasrians who seek to influence parental choice through
> pressure on children to conform.  I'll stand with Abington on this point,
> especially Brennan's concurring opinion.
>
>       but I certainly think a school could impose such an across-the-board
> requirement, if it feels that students are too "impressionable" to be
> "evangelize[d]," "convert[ed]," or "proselytize[d]" -- or, to use a more
> neutral term, "persuaded" -- without parental consent.  (If I were a
> parent, I might well support such a requirement, at least for young enough
> children; I don't want my children to be "proselytized" with
> environmentalist views or PETA views any more than with Christian views.)
>
>
> Do you really think, in light of the structure of Stevens' dissent, that
> the court would buy such a requirement?  Let me reframe this?  Do you
> really believe that the Good News majority would find unobjectionable a
> consent form that asked for permission to have children proselytized?  (I
> do not think that "persuaded" is more neutral.  I disagree with you.)
>
>
>               Given that this is so, where exactly is the lack of "candor"
> in Justice Thomas's opinion, or the evidence that something is being done
> "by hook or by crook," whatever that exactly means here?
>
>
> A little history goes a long way.  It is far too late in the day to
> pretend that Good News is anything other than an attempt to get around
> Engel and Schempp.  Thomas utterly discounts the fact that the Good News
> program constitutes an evangelical Protestant form of worship -- Bible
> reading and prayer.  The "hook and crook" are merely efforts to camoflage
> that fact with the soothing rhetoric of "discussion" or some such
> nonsense.  Again in the real world, we know what is really at stake here
> -- an unrelenting effort to turn American school children into evangelical
> Protestants.  Hence the lack of candor.
>
>
>
>               Now I realize that the Good News case also stands for a
> proposition that is broader than these particular facts -- but that
> proposition is simply that the government must treat religious speech by
> private individuals or groups no worse (and in my view no better) than
> other speech.
>
>
> And this is a lousy proposition, for historical real world reasons.  It
> guts the Establishment Clause, in my opinion, and that is, given the
> continuing reality of the Protestant Empire, a bad thing, as least as far
> as I am concerned.  Religious speech is not just another brand or variety
> of speech, as our history makes perfectly clear.  To treat it as such is
> to buy into the unrelenting effort to turn American school children into
> evangelical Protestants.
>
> Any "neutrality" principle, to be intellectually honest, has to confront
> the reality of the shape and level of the relevant playing field, forum,
> market or whatever.  What is lacking in the arguments that you and others
> who favor such "neutral" principles make is that acknowledgment.  You seem
> to proceed as if we had no history, and that all people and all religions
> and all religious institutions are in some real or empirical sense
> (perhaps in what one could call a "formalist" sense) "equal," when we all
> know that that simply cannot be true.  In a way that may strike some as
> trivial, I and Andre Watts are not equals.  I play the piano too, but I
> cannot make a living doing that.  Perhaps it is wise to recall what
> Anatole France (I think) once said about neutrality:  the law in its
> majestic impartiality forbids rich man and poor man alike from sleeping
> under bridges.  My esteemed colleague, Steve Jamar, got it right in a
> recent post.
>
>        So if a school thinks kids are too impressionable, it can ban all
> attempts by groups to spread their ideas, whether environmentalist,
> vegetarian, or Christian, or it can require parental consent for all such
> groups.  On the other hand, if it thinks that kids (say, high school
> students) can make up their own minds when people try to persuade them of
> something, it can allow them to be persuaded by all groups -- the
> gay-straight alliance, the anti-gay alliance, environmentalists,
> libertarians, and, yes, God forbid, even Protestants (I allude here to
> Michael's other post expressing concern about "Protestant Empire").
>
>
> I think that your argument has little bearing on the real world experience
> of American public school students.  The playing field of ideas and
> ideologies is not level by a long shot, no matter how hard you try to
> pretend, through your hypotheticals, that it is.
>
>
>
>               What about "proselytiz[ing] during regular classes or
> student assemblies"?  "Is it 'discriminatory' not to let Good News do"
> that?  Well, I would have thought the answer was simple:  If at a student
> assembly the school let any student get up and explain why people should
> agree with his philosophy -- again, be it environmentalism or feminism or
> capitalism or what have you -- then it should let students explain why
> people should agree with their religious philosophy, be it Protestantism
> or atheism or Islam or what have you.  On the other hand, if the school
> doesn't like the idea of letting students using assemblies to
> "proselytize," "convert," or "evangelize" people, it can simply say that
> it won't let students do that, either as to political views or religious
> ones.
>
>
> This is nonresponsive.  The problem is that, as Paulsen even acknowledges,
> there is discrimination, and there is unconstitutional discrimination.
> That makes my point. Again, you throw around ideologies as if they would
> routinely or randomly appear or surface in the real world of American
> public school educatrion.  I don't think so!
>
>
>
>               Now I realize that some people believe that religious
> proselytizing, conversion, evangelizing, or persuasion (especially such
> action by Protestants, with their history of "hegemony") is somehow worse
> than political proselytizing, conversion, evangelizing, or persuasion.  I
> just don't see why the Supreme Court should interpolate such a distinction
> into the First Amendment, which protects our "freedom of speech" without
> any seeming exception for religious speech.
>
>
> Yup, Eugene, it is worse, in light of our history and experience.  And
> your claim about the fungibility of speech leaves me, for want of a better
> word, speechless.  The fact that the Court may have bought into this idea
> does not make it any better.  It just means that a bad idea is now the
> law.
>
>
>
>               Eugene
>
>
>               -----Original Message-----
>       From:   Michael deHaven Newsom [SMTP:mnewsom at LAW.HOWARD.EDU]
>       Sent:   Wednesday, June 13, 2001 10:32 AM
>       To:     RELIGIONLAW at listserv.ucla.edu
>       Subject:        Re: Mecklenburg is to Brown as
>
>               Jim Henderson, at least, shows far more candor than Justice
> Thomas did.  The name of the game is to evangelize and convert
> impressionable school children by hook or by crook.  But why is it
> discriminatory or otherwise cowardly or dastardly to push back meeting
> times until 5:00 p.m.?  Is it discriminatory to bar all after school
> groups?  Are there no limits to Good News Club's "right" to proselytize
> little children?  Why not let Good News proselytize during regular school
> hours?  Why not let Good News proselytize during regular classes or
> student assemblies?  Is it "discriminatory" not to let Good News do what
> it wants to do when and where and how it wants to do it?
>
>               I should have thought that there were some limits, limits
> that the Supreme Court majority perhaps rearranged.  But I am not sure
> that the distinction between regular school hours and after-school hours,
> and school sponsored event and non-school sponsored events has disappeared
> or evaporated, but, of course, with Scalia, Thomas and Rehnquist, one
> never knows.  The other three voted with the majority in Santa Fe ISD and
> Lee (Kennedy and O'Connor who engaged in Scalian psycho-babble.)
>
>               Michael deHaven Newsom
>
>
>               Truthserum wrote:
>
>                        Milford is to the Good News decision by the United
> States Supreme Court.The North Carolina anti-school busing statute
> decision followed after Brown by some nearly 20 years.  How long do some
> anticipate it will take for the duty of equal treatment to travel from the
> pen of Justice Thomas to the heart of the Milford School Board?According
> to an AP report, excerpted below, Milford officials lost no time in
> beginning to consider how to avoid giving place to the decision:MILFORD,
> N.Y. (AP) - Though the nation's highest court has ruled that the Christian
> Good News Club has the right to gather at a public school, the Bible study
> group may never actually meet in the building.
>
>                       Milford Central School district officials are
> weighing two options in response to the U.S. Supreme Court's ruling
> Monday: barring all groups from meeting there or pushing starting times
> back for all clubs until 5 p.m. or 6 p.m., a few hours after students are
> dismissed.
>
>                       The Rev. Stephen Fournier, organizer of the Good
> News Club, said the second choice wouldn't work because the group wants to
> meet directly after school so it can reach the most students.
>
>                       "That rules out the club meeting at the school,"
> said Fournier, pastor at Milford Community Bible Church. "The best
> opportunity for us to reach the kids was right after school."
>
>                       Superintendent Peter Livshin said the school board
> planned to meet Thursday to begin talking about a new policy and would
> have new rules in place before the beginning of the next school year.
>               Jim "Religious Intolerance:  A Peculiar Institution for the
> 21st Century" Henderson
>
>                       Senior Counsel
>
>                       ACLJ
>
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