"Mormon Student"

[Brownstein, Alan]

As far as bidding goes, mine was a fairly modest bid. If a university
allows students to take a semester or a year off for political
campaigning or community organizing or religious proselytizing, it is
going to run into free speech clause problems if it accepts some
requests but not others. For example, it cannot give a student a
semester off to organize against affirmative action programs while
refusing to give another student a semester off to organize in favor of
such programs. And while one may certainly criticize the Court's
decisions that repeatedly conclude that religion is a viewpoint and that
discrimination against religious expressive activities constitute
viewpoint discrimination, I think the line of authority is so well
established at this point that it clearly represents current authority.


 

I would think that the discretion schools possess to discriminate among
viewpoints in curricula decisions would not typically extend to the
grant of a leave of absence. The student's speech on leave would not be
considered university speech or even university sponsored speech or part
of the school's educational program or mission.

 

And if the university grants students a leave for political campaigning
and organizing but refuses to grant a student a leave to take care of
his infirm parents, I think the university administrators should be
ashamed of themselves - but I don't think the student denied a leave to
take care of his parents has a viable free speech clause claim because
his conduct would not be considered speech

 

The free exercise question this thread has been discussing is more
difficult for a variety of reasons. I haven't bid on that yet.

 

Alan Brownstein

 

 

 

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Sanford
Levinson
Sent: Thursday, September 06, 2007 5:17 AM
To: Law & Religion issues for Law Academics
Subject: RE: "Mormon Student"

 

So let me review the bidding:  Someone who wants to engage in a year of
"community service" spreading the word about the Ku Klux Klan is
entitled to take the year off (to say no would be to engage in forbidden
viewpoint discrimination), but a student who invoked the 5th Commandment
to take off a year to take care of one's infirm parents would not.  If
the latter student is given the leave, then why wouldn't violate the EP
clause to refuse the year off to a secular student who wants to take
care of parents.  And, by this time, aren't we effectively saying to any
scholarship recipient that "you can take off a year (or, as with Mormon
students, two years) off for any reason at all"?

 

Given that any self-respecting university engages in viewpoint
discrimination all the time in constructing curricula and grading
papers, would it be illegitimate for a university to refuse a leave in
order to study astrology on the grounds that it is a bogus field that in
no way contributes to a student's intellectual growth.  (Studying the
history of astrology as a belief system would be something else, of
course.)  

 

Paul is unusually tactful in his argument regarding religion.  Surely
there are some religions that strike any secular rationalist as
"irrational."  That people I respect have all sorts of religious views
doesn't translate into my finding it "rational" to have at least some of
them.  That's what "leaps of faith" are all about.  One should recall
Tertullian, who, I believe, said (something like) "I believe because it
is absud."  As to (classical) Mormon theology, incidentally, I strongly
recommend Richard Bushman's superb biography of Joseph Smith.  Bushman
is a practicing Mormon and an excellent historian by any criteria.  With
regard to the translation of the Golden Plates (assuming their existence
in the first place), one must indeed make all sorts of leaps of faith.
This is no less true, of course, with regard to many aspects of Judaism
and Christianity.  

 

sandy

 

________________________________

From: religionlaw-bounces at lists.ucla.edu on behalf of Brownstein, Alan
Sent: Thu 9/6/2007 12:16 AM
To: Law & Religion issues for Law Academics
Subject: RE: "Mormon Student"

I agree with Mark's response -- if an exemption is provided for secular
expressive activities, there is no free speech issue created by granting
a similar exemption for religious expressive activities. Indeed, under
current authority, granting the exemption may be required by the free
speech clause even if it is not required by the free exercise clause.

 

Alan Brownstein

 

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