Steven Williams Case

[Lupu]

On the power of public schools to monitor religious expression in 
class by public school teachers, see also Roberts v. Madigan, 921 
F. 2d 1047 (10th Cir. 1990), which Michael Paulsen and I discuss in 
a Symposium in the Case Western Res. L. Rev.  (43 CWR L Rev. 
at 851-52 for Paulsen's view; id. at 895-99 for mine.)

Chip Lupu

On 6 Dec 2004 at 15:55, AAsch at aol.com wrote:

> In a message dated 12/6/2004 12:21:11 PM Pacific Standard Time, 
> marty.lederman at comcast.net writes:
> 
> 
>     In very brief: Under the "government speech" doctrine, a state may
>     require its teachers, in their official capacities (i.e., while
>     teaching), to hue to the state's prescribed curriculum. This is
>     the majority view in the courts of appeals -- that there is no
>     Free Speech Clause right of indivdual teachers to teach what they
>     wish in the classroom -- although there is some recent caselaw
>     going the other way (principally in the Sixth Circuit, IIRC).
> 
> 
> The Ninth Circuit came to the same conclusion using a slightly
> different analysis. In Peloza v. Capistrano Unified School District,
> 37 F.3d 517 (9th Cir. 1994), the court found that preventing a teacher
> from discussing religion with his students did restrict his free
> speech rights, but that the state's compelling interest in avoiding an
> Establishment Clause violation justified the restriction. As the court
> wrote:
> 
> "The school district's restriction on Peloza's ability to talk with
> students about religion during the school day is a restriction on his
> right of free speech. Nevertheless, 'the Court has repeatedly
> emphasized the need for allowing the comprehensive authority of the
> States and of school officials, consistent with fundamental
> constitutional safeguards, to prescribe and control conduct in the
> schools.' Tinker v. Des Moines Indep. Community School Dist, 393 U.S.
> 503, 506-O7, 89 S.Ct. 733, 737, 21 L.Ed.2d 731 (1969). '[T]he interest
> of the State in avoiding an Establishment Clause violation 'may be [a]
> compelling' one justifying an abridgment of free speech otherwise
> protected by the First Amendment....' Lamb's Chapel v. Center Moriches
> Union Free School Dist., - U.S., 113 S.Ct. 2141, 2148, 124 L.Ed.2d 352
> (1993) (quoting Widmar v. Vincent, 454 U.S. 263, 271, 102 S.Ct. 269,
> 275, 70 L.Ed.2d 440 (1981)). This principle applies in this case. The
> school district's interest in avoiding an Establishment Clause
> violation trumps Peloza's right to free speech."
> 
> Full text of case available at this address:
> 
> http://www.talkorigins.org/faqs/peloza.html
> 
> Allen Asch
> erstwhile ACLU cooperating attorney



Ira C. ("Chip") Lupu
F. Elwood & Eleanor Davis Professor of Law 
The George Washington University Law School 
2000 H St., NW
Washington D.C 20052

(202) 994-7053

ICLUPU at main.nlc.gwu.edu
ICLUPU at law.gwu.edu