Pamphlets at School

[Marty Lederman]

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 To: 'Law & Religion issues for Law Academics' 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: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Marty Lederman Sent: Friday, November 05, 2004 11:52 AM To: [EMAIL PROTECTED]; 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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