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In a message dated 8/28/2005 12:05:34 A.M. Eastern Standard Time,
[EMAIL PROTECTED] writes:
A group of Christian schools is suing the University of California (Emphasis added.)
I think that this case presents fascinating possibilities for discussing
law and religion. Ed's question is whether there is any legal basis for
such a suit. I think to the point of tears I have made clear where I would
go looking for legal bases for the suit: (1) viewpoint discrimination and
(2) standardless and unbridled discretion. In "normal" cases, that is,
one's not apt to be distorted by one of the Court's peccadilloes (the "abortion"
distortion factor, for example), any constitutional
litigator would be drooling over a case that
carried the possibilities of government viewpoint discrimination and
standardless discretion.
Mr. Brayton obviously doesn't need my help to defend himself, but as an experienced constitutional litigator let me say that I find Mr. Brayton's posts more careful with the facts, more logical, and better grounded in the law, than the posts on this subject by either Prof. Duncan or my friend Jim Henderson, whose statements about "standardless, unbridled discretion" seem to have little to do with the real world. I, for one, am glad to be able to benefit from Mr. Brayton's knowledge. I object to my friend, Art Spitzer's accusation that I am being less
careful with the facts. I have adverted to the facts only a bit, and in
doing so have adverted to the news source that Ed cited at the start of this
thread. I haven't gone looking for other sources, read the UC webpages on
approved and disapproved courses, etc. Just took the facts as Ed offered
them. What I did do, and Art's reaction does surprise me here, is ask
questions about other fact patterns, more and less related to this one, in order
to try and tease out a discussion of governing legal principles. Art finds
"standardless, unbridled discretion" discussions to have little to do with the
real world (as a side note, the Supreme Court has agreed with Art of late on
this point; see the majority opinion in Hill v. Colorado). I wonder why
this concern in "other worldly." Has the ACLU
developed a position that prior restraint doctrine as it has
been is passe? Has the ACLU concluded that precious liberties, of
religious exercise, of speech, press, assembly, know no truer friend, no dearer
guardian, than the cop on the beat, the bureaucrat in the maze of government
agencies? It is, perhaps, unfair to ask that Art speak for an organization
when his voice on this list was only his own. But I get the ACLU email
blasts and the kind of discretion that bothers me here and doesn't apparently
bother Art is precisely what bothers the ACLU about the powers endowed on the
feds in the Patriot Act.
(When I poke at Art I feel that I must express my personal appreciation for
positions on the right to freedom of speech and press that he has staked out in
the past, including in cases in which I was representing parties).
There was another comment by Rick that I inadvertently erased asking if I didn't think the First Amendment was at least a bit implicated in such controversies. I still tend to think the answer is no, for reasons given earlier about the irrelevance of content- and viewpoint-neutrality to assessing the way that universities organize themselves. And as for this point, again, I would not think that a search for
constitutional grounds would succeed if this was a case in which "universities
[had] organize[d] themselves." But of course, this is not such a
case. As I understand it, the State of California has organized the
University of California system. These are state schools, state
institutions. I know that Sandy does not dispute this point. I can
prove it. Let California make a condition of admission the taking of the
following oath: "I attest to the literal truth of the Holy
Scripture. I attest to the creation in six days of all that exists.
I attest to the Virgin Birth. I attest the teaching ministry, miracles,
passion, death and resurrection of Jesus the Christ." How quickly would
Sandy, or his stand - in, be in a federal court challenging the condition of
admission.
This is about government conduct. True there is discretion to be
had. But it is not vast. It is not standardless. It is not
unbridled.
Ed asked if there are legal bases for the suit. These, at least, are
such bases.
Jim Henderson
Senior Counsel
ACLJ
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