Hansen case or, Clueless in Ann Arbor

Vance R. Koven vrkoven at world.std.com
Mon Apr 19 16:50:39 PDT 2004


While this case is easily accessed on Westlaw or Lexis, a free copy is 
available at:
http://www.michbar.org/opinions/district/2003/120503/21290.pdf

Judge Rosen was harsh indeed on the school and the advisers to this event, 
not without reason.

There are a couple of points that intrigue me, one of which is this: in 
both the free speech and establishment clause discussions, the court 
focused (naturally enough) on the school's complete blacklisting of the 
plaintiff's viewpoint. In footnote 29, in the EC discussion, the court said 
that even if the plaintiff's viewpoint had been represented by one out of 
the six panelists, the exercise might have violated the Lemon test's second 
prong by favoring religion over irreligion. One might wonder if a panel as 
unbalanced as that could still be considered favoring one religion over 
another, without getting to the religious vs. irreligious issue.

Putting aside for the moment the "excessive entanglement" issue involved in 
influencing the panel's composition, suppose that a school wants to 
reconstruct the program that the court invalidated in Hansen, and decides 
that it can do exactly what Ann Arbor did, but include on the panel a) the 
dumbest hayseed of a fundamentalist it could find, who would be a poor 
spokesperson for the "traditionalist" viewpoint, and b) one atheist who was 
pro-gay. Would that pass muster?

My other question, which is "off-topic" in the sense that it arises under 
the free speech part of the opinion, is whether there was something 
inherently problematic in turning over the homosexuality and religion panel 
to the GSA to run. The court didn't make that much of this point, which 
surprised me a bit. Would nobody have cause to complain if a school turned 
over a panel on Youth in Politics to the Young Republicans? Even if the YRs 
were the only ones volunteering to run it? And if the distinction hinges on 
"issue partisanship" vs. party partisanship, is there any real distinction 
between government speech and government-sponsored speech? If the 
government itself could issue statements exhorting the public to accept 
propositions that many of them morally, religiously, or just plain 
pragmatically abhor, then why can't it recruit subalterns to do the same 
thing? Maybe the 10th Circuit was right in principle in the Columbine case 
(even though its case law analysis was weak).


Vance R. Koven
Boston, Massachusetts USA
vrkoven at world.std.com  



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