Maybe we should separate the two questions being asked here, to wit: 1. Can't the state regulate the use of it's property?, and 2. Can't one say that failure to do so might amount to state action?
Even if the answer to the latter question is, "No", that still leaves the first question. Public schools are not completely open public fora, like streets, and I don't read Tinker to say otherwise. It seems to me the question boils down to how much and what type of regulation may be imposed either in the classroom or in the school but outside the classroom, given that neither school setting is a full free speech zone, and that both involve non-mature (here I think I differ with Eugene) captive audiences (given compulsory attendance). It's not entirely clear to me that messages admonishing the only-Jewish-recipients to find Jesus (assuming that's what these were) are, as someone else described them, "discussions of religion or theology", or even discussions. Whether they are nevertheless protected by the Free Speech guarantee, so that a public school that chooses to curtail this private speech is prohibited from doing so, is still debatable. Does Tinker say that schools can only limit speech so inciteful that it threatens a breach of the peace? If so, how is the school different from a public street? Robin Charlow Hofstra University School of Law Hempstead, New York 11549 email: [EMAIL PROTECTED] phone (516) 463-5166 >>> [EMAIL PROTECTED] 11/10/2004 11:58:32 AM >>> I agree that the application of the principle has to be carefully thought through. I think that the totality of the facts in the particular case control the application. We have long understood that the rules that apply in the common schools are different than the rules that apply elsewhere. In that context, one can safely say that the schools cannot, by inaction, permit this sort of targeted leafleting. There is no slippery slope here unless the Supreme Court cases on religion in schools are all wrong. -----Original Message----- From: Scarberry, Mark [mailto:[EMAIL PROTECTED] Sent: Tuesday, November 09, 2004 5:24 PM To: 'Law & Religion issues for Law Academics' Subject: RE: Lesser protection for religious advocacy The idea that the govt is responsible for all that it does not prohibit must be treated with great care. It has the potential of making govt responsible for all of life, and of eliminating the sphere of private action. Taken far enough, it is totalitarian. Thus, for example, the argument I heard at one AALS section meeting that Catholic refusal to ordain women as priests violates the 14th Amendment, because the govt's refusal to extend anti-discrim laws to churches results in church discrimination being state action. Mark S. Scarberry Pepperdine University School of Law -----Original Message----- From: marc stern [mailto:[EMAIL PROTECTED] Sent: Tuesday, November 09, 2004 2:14 PM To: 'Law & Religion issues for Law Academics' Subject: RE: Lesser protection for religious advocacy That the failure to regulate might constitute state action-as in failing to ban private segregation- was one of the most hotly contested issues of the mid-sixties civil right litigation>THE Supreme court ,if my memories of law school are reliable, always dodged the question. It largely became moot as a result of the 1964 civil rights act. Marc Stern _____ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Tuesday, November 09, 2004 5:05 PM To: [EMAIL PROTECTED] Subject: Re: Lesser protection for religious advocacy In a message dated 11/9/2004 5:00:06 PM Eastern Standard Time, [EMAIL PROTECTED] writes: Can't the state regulate the use of its property? Can't one say that failure to do so might amount to state action? Seems at least plausible that if you can make that work, you can find state action in the failure of a local government agency to prevent assaults on public sidewalks. After all, they are public property. Jim Henderson Senior Counsel ACLJ _______________________________________________ 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 Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.