Hansen case or, Clueless in Ann Arbor

Douglas Laycock DLaycock at mail.law.utexas.edu
Mon Apr 19 17:07:47 PDT 2004


         I have not had time to read the opinion, and I barely skimmed the 
facts.  But that skim suggests two pretty clear reasons why the school 
district did not claim that this was government sponsored speech.  The 
school district couldn't claim to be sponsoring all that was said, because 
it was not willing to be responsible for everything that might be said on 
multiple student-organized panels.

         Basically the government has a choice:  it can claim speech as its 
own and take political responsibility for it, and then it need not be 
viewpoint neutral.  Or it say it is just creating a forum, preserving its 
ability to deny responsibility if anything controversial is said, but then 
it has to be viewpoint neutral in granting access or composing panels.  The 
line between the two choices is not bright in the real world, but the 
difference between the two ends of the continuum is quite clear.

         The second and perhaps more obvious reason is that the school 
could not claim to sponsor this particular panel, because it could not 
sponsor religious speech.  At least for this panel, it had to be creating a 
forum, and its administration of that forum (whether directly or through 
student delegatees, see Santa Fe ISD v. Doe) had to be viewpoint neutral.


At 03:50 PM 4/19/2004 -0400, Vance R. Koven wrote:
>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
>
>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?
>
>
>Vance R. Koven
>Boston, Massachusetts USA
>vrkoven at world.std.com
>
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Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
         512-232-1341 (voice)
         512-471-6988 (fax)
         dlaycock at mail.law.utexas.edu
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