Having initiated the thread on invited speakers, let me take a tentative try at Mark Tushnet's hypothetical:
Some preliminary thoughts setting the context: First, religious speech plainly has some difference than political speech, else the Establishment Clause would mean nothing. The government plainly may fund political speech, including political speech that is controversial or that offends portions of the citizenry. But it may not direct fund or promote religious speech. Nonetheless, when the government may create a forum in which religious expression properly may participate on equal terms with other speech. Indeed, for government to exclude religious expression from such a forum would put government in the position of making a negative comment on the value of religious speech and, even worse, having to evaluate discourse to determine which types of speech are religious and which are not. Second, what the Establishment Clause precludes is religious expression by a governmental actor, that is, when the expression is made by an institution. Religious expression by an individual in a forum created by government, at least if open in some meaningful sense to other viewpoints, is not legitimately regarded as expression by the governmental institution. Applying that to Mark's hypothetical: If the philosophy department were to permit the instructor to offer a course in Christian or Catholic ethics, I do not think that alone would infringe upon the Establishment Clause. Even if the instructor expressed his own viewpoint as one in which ethical thinking was formed by religious faith, that would not in my view be legitimately treated as the equivalent of institutional thought, any more than would a scholar at a public university publishing scholarship from a religious perspective. While the courts understandably have been troubled by such religiously-influenced teaching at the elementary (and secondary) education levels due to the impressionability of children, higher education has not been treated in the same manner and for good reason. Yes, I admit that if a department at a public university began to offer a disproportionate number of courses from a religious perspective, at some point a line would be crossed in which the religious perspective would justifiably be regarded as that of the institution, which establishment principles would preclude. But offering one such course comes nowhere near the line. But of course Mark's hypothetical poses the opposite: The philosophy department rejects the proposed course by defining philosophy as not including religious perspectives. Does Rosenberger preclude that decision? While I would question the wisdom of the philosophy department's decision, I tentatively conclude that it falls within the realm of reasonable academic choices about curriculum (at least if not motivated by an anti-religious animus). As a discipline, there are those who conceive of philosophy as being based solely upon human reasoning without any supernatural or transcendal elements. If philosophy is defined by a department as based upon human reasoning, a course that is grounded in purely theological elements would be outside the scope of the forum. I understand Rosenberger as focused more upon freedom of religious expression in the context of a generally open forum for ideas, not as dictating choice of curriculum for an academic division. Again, I think it is a rather crabbed understanding of philosophy and deprives students of exposure to an important perspective on values, but not every foolish decision is of constitutional significance. (Note that I would feel differently if the instructor was also told that while teaching other ethics courses he could never express a viewpoint that had a religious basis.) Greg Sisk -----Original Message----- From: Mark Tushnet [mailto:[EMAIL PROTECTED] Sent: Wednesday, January 28, 2004 8:37 AM To: Law & Religion issues for Law Academics Subject: Do philosophy departments violate the Constitution? I'd like to suggest a slight variant on the issues opened up by the discussion of invited speakers. Consider the philosophy department in a public university. It offers a number of courses in ethics, in which teachers survey the field and -- importantly for the problem -- present their own views about what general approach to ethics (utilitarianism, Kantianism, and the like) is correct/most defensible. Many of these courses spend a substantial amount of time on "ultimate issues" of life (of a sort that addressed -- in a different way -- in theology departments in religiously affiliated universities). [I invite people to tinker with the set-up in ways that make the following question more pointed.] Under Rosenberger, is the department violating the Constitution if it rejects a course proposal by a fully qualified instructor (Ph. D. in philosophy, with a specialization in ethics, and an advanced theological degree relevant to the course proposal) to offer a course (on the same terms as the other ethics courses are offered -- as an elective if they are, as a course that fulfills a departmental requirement if they do) in (not "on") Christian ethics, or Roman Catholic ethics, or "Ethics from a Christian/Roman Catholic Point of View," or ... -- when the rejection is on the ground that the perspective proposed is not within the department's definition of "philosophy"? _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
