New Jersey Lawsuit

[Lupu]

On 16 Dec 2005 at 13:56, Bezanson, Randall P wrote:

> Welcome to the new First Amendment.  Under the Court's decisions
> religious music is not constitutionally compelled to be played, but it
> is unconstitutional to exclude it if it otherwise meets the general
> and secular criteria by which the music for the pereformance was
> selected.


Where does that exclusion principle come from?  Not from 
Rosenberger, because Rosenberger involved private speech in a 
public forum and the New Jersey case involves neither.  If the 
exclusion was the product of anti-religious animus, that might be a 
problem (Pico?).  But if the exclusion rests on a good faith judgment 
about religious sensitivities and Establishment Clause problems, 
then it fits squarely in the zone of Establishment Clause discretion 
that every school official possesses. For another obvious example -- 
if a teacher in 12th grade AP literature employs book selection 
criteria involving literary genius and historical importance of the 
work, is there any doubt that the teacher may exclude the Bible or 
the Koran (even if they qualify on the criteria) out of concern that 
some parents will object that their children are being taught religious 
truths as truths?

Chip Lupu 
> 
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Ed Brayton
> Sent: Friday, December 16, 2005 12:22 PM To: Religionlaw list Subject:
> New Jersey Lawsuit
> 
> I want to get everyone's thoughts on the appeals court case against
> South Orange-Maplewood School District in New Jersey. The school has a
> policy not to have religious music performed by the choir or band and
> that policy is being challenged as unconstitutional. Now, I think the
> policy is a bad one for several reasons. But unconstitutional? On what
> grounds? Are there any precedents that apply in this area? It seems to
> me that saying it's not unconstitutional for public schools to perform
> religious music (which I agree with) is quite different from saying
> it's unconstitutional NOT to perform religious music. It seems to me
> that if not playing Christian music amounts to unconstitutional
> "hostility" toward Christianity, then not performing Muslim music must
> also be unconstitutional hostility toward Islam, and also true for
> Hindu music, Jewish music, and so forth.
> 
> Ed Brayton
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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