Pamphlets at School .:.

Tue Nov 9 13:09:58 PST 2004

A "deeply meaningful" test can't work.  The point is that the "meaning"
of the pamphlets is quite different for those who distribute them and
those who receive them.  It is the dynamics of the relationship between
the distributors and the recipients that matters.  And on this point, I
think that we MAY have a problem of pure bullying.

It is "deeply meaningful" to a bully that he collect his protection
money from the weak students.  It is "deeply meaningful" to those
students that they have to pay a dollar a day to avoid getting beaten
up.

-----Original Message-----
From: Menard, Richard H. [mailto:rmenard at Sidley.com] 
Sent: Friday, November 05, 2004 2:30 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Pamphlets at School .:.

You raise a lot of good points.  In response only to point (5):  The
notion that proselytizing is more suspect because it may be received as
"offensive and unwanted" (I agree with that premise) seems to me either
to ignore or to reject something at the heart of the endeavor.
Proselytizing -- which, bear in mind, is widely understood as an
affirmative Christian obligation-- is not preaching to the choir (who
presumably won't be offended), but rather an effort to change minds.
Isn't it a little perverse to say that the fact that the endeavor should
get less protection because the subject of the proposed change is deeply
meaningful to both the speaker and the listener?

	-----Original Message-----
	From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu]On Behalf Of Marty Lederman
	Sent: Friday, November 05, 2004 1:50 PM
	To: Law & Religion issues for Law Academics
	Subject: Pamphlets at School .:.

	Eugene and Marc are, of course, correct:  The case is not quite
as simple as I suggested.  Let me try to break down the questions they
raise:

	1.  Could a state prohibit private discrimination "on a public
sidewalk" generally?  Well, no legislature would ever do so, because we
are nowhere near any sort of social consensus that legislatures should
start regulating the choices we make in our everyday interactions, on
the sidewalks or in our homes -- even where they might be a consensus
that some such choices are invidious.  "Law does not, in our legal
culture, commonly deal with dinner invitations and the choice of
children's back-yard playmates."  Charles Black, 81 Harv. L. Rev. at
102.  Thus, I don't think any of us will live to see the answer to
Marc's question (could a state prohibit private persons from
discriminating against others on a public sidewalk?) -- the
constitutional question will not arise because there is unlikely to be
any such statute. 

	2.  On the other hand, we are, of course, familiar with a
well-known set of prohibitions on discrimination in public spaces --
namely, public accommodation laws, modeled on title II.  Those laws do
not prohibit all discrimination in public spaces, but are instead
limited to discrimination that has some real, tangible effect on access
to meaningful privileges and benefits of public life, including, most
obviously, actual access to public spaces, events, and the like.  Does
that extend to prohibiting speakers from excluding certain audiences for
speech conducted in a public setting?  I think it often does as a matter
of statute, and I had thought the cases were fairly uniform that
speakers in a public accommodation (e.g., an auditorium, a bandstand)
can constitutionally be prohibited from discriminating w/r/t their
audience; but Eugene is correct that there is some split of authority,
including the City of Cleveland v. Nation of Islam case.  I do not think
the constitutional claim is very strong -- but then again, I think Dale
is wrongly decided.

	3.  Turning to schools:  Marc is correct that, in general,
antidiscrimination provisions -- at least those at the federal and state
level with which we're familiar -- run against the schools themselves
(including private schools), rather than against the students.  But this
means, in part, that schools have a legal obligation to prohibit
student-to-student discrimination that tangibly affects the education of
the discriminated-against students.  See Davis v. Monroe County.
Accordingly, I imagine that most schools in this nation do implement
some sort of behavior codes pursuant to which students are not permitted
to discriminate against one another on certain grounds, including race,
sex and religion.

	4.  Of course schools do not enforce such rules against every
sort of student discrimination -- e.g., choosing one's friends or dates,
or picking sides in a kickball game -- for the same reason that
legislatures do not prohibit racial and religious discrimination in
every sphere of our lives (including how we treat others in everyday
social interactions).  And they certainly do not prohibit discrimination
when it has absolutely no adverse impact on the "disfavored" class, such
as in Eugene's example of a Jewish student group distributing leaflets
about Yom Kippur services to students whom they knew to be Jewish.  But
they do enforce anti-discrimination laws in those circumstances where
the conduct -- including expressive conduct -- obviously is unwanted, or
causes tangible harm, or is offensive.  See, e.g., Davis itself.  The
fact that the school limits its anti-discrimination enforcement only to
these sorts of harmful (or "severe and pervasive") cases does not make
the prohibition content-based, contra Gene Summerlin -- in part because
the prohibition is not limited to discriminatory speech, but applies as
well to nonexpressive forms of discrimination (again, see Davis).  The
school could constitutionally enforce a much broader anti-discrimination
ban; the fact that it does not do so, that it reserves sanctions for
discrimination with real impact, and that it measures such impact in
part by the recipients' reactions to such conduct (including speech),
does not to my mind (nor the Court's I think -- see Davis) raise a
serious free speech problem -- but that's a much more complicated
subject that Eugene and I and others have long debated without much
resolution.

	5.  So is the proselytizing here offensive and unwanted, or is
it (as Eugene appears to suggest) merely another form of benign,
attempted persuasion, akin to trying to convince one's fellow students
that the Stones were better than the Beatles (or vice versa), or Kerry
better than Bush?  I think it is the former:  We had plenty of
knock-down, drag-out, impassioned arguments in my high school about any
number of things that were deeply important to us, including politics,
music and art; but if anyone had tried to convince someone else to
convert to a different religion, that would have been seen -- quite
rightly, in my view -- as another kettle of fish entirely, and
completely inappropriate.  This question -- whether religious
proselytizing, especially of students, can and ought to be viewed as
equivalent (as a legal matter, anyway) to other forms of persuasion --
is a much broader and more contentious topic than the discrete question
Marc has asked, and one on which I think we're unlikely to shed more
light than heat.  Let me simply suggest two reasons -- related to one
another -- why such proselytizing seems so different, and much more
offensive/inappropriate, to many of us than, e.g., trying to persuade
students to vote for Kerry or to become vegans:  (i) Such proselytizing,
unlike other forms of persuasion, does tend to single out its audience
on the basis of the audience's religion -- and there is very good reason
that we think people ought not be singled out on the basis of religion
in public life (including in school), whereas we have much less concern
with singling out "audiences for persuasion," including student
audiences, on the basis of their political affiliation or diet.  Hence,
the common existence of bans on religious discrimination (beginning,
perhaps, with article VI, sec. 3), and no comparable history of
prohibiting discrimination on the basis of political affiliation or
carnivore-status.  (ii) Most folks (but not all!) view their religion as
more fundamental, more ingrained, more personally constitutive, and more
private, than our numerous other "preferences" and personal
characteristics.  

		----- Original Message ----- 

		From: marc stern <mailto:mstern at ajcongress.org>  

		To: 'Law & Religion issues for Law Academics'
<mailto:religionlaw at lists.ucla.edu>  

		Sent: Friday, November 05, 2004 11:59 AM

		Subject: RE: Pamphlets at School

		The problem I see is that the state is not
discriminating; students are and they would have a freedom of speech and
association claim. The state could not on a public sidewalk invoke civil
rights laws to prohibit a distribution of literature to Jews or
Christians only, could it?

		Marc Stern

  _____  

		From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
		Sent: Friday, November 05, 2004 11:52 AM
		To: gene at osolaw.com; Law & Religion issues for Law
Academics
		Subject: Re: Pamphlets at School

		Marc's question was not whether the school could
prohibit distribution of religious literature; as I understand it, it
was whether the school could prohibit literature distributors from
targeting Jewish students as the audience for the literature, regardless
of its content.  I think the answer to that question is probably "yes"
-- a simple prohibition on religious discrimination against students
would do the trick, and it would be no more unconstitutional than are
the bans on religious discrimination in, e.g., the Civil Rights Act.

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