|
Thanks for a very thoughtful post, Roman.
Actually, I think a distinction between a school denying a student the
opportunity to speak in class and a school disciplining a student for what he
or she says may be constitutionally significant. Vik Amar and I have a piece in
press for Green Bag that makes this very point in the context of restrictions
on teacher speech. We suggest that School Boards have substantial discretionary
authority to tell teachers what they can or can not say in the classroom, but
they have to exercise that authority in advance. If a teacher says something in
class that he or she has no reason to know is unacceptable speech, the
principal or Board has to the power to prohibit her from continuing to express
that message to her students. But they should not be able to discipline her for
her initial comments. It is a kind of mixed due process/free speech analysis. Maybe
the same analysis could apply to students. Alan Brownstein UC Davis From: This is
one of the most vexing free speech and, often, free exercise issues that I've
had to deal with. I don't think that calling the activity
"curricular" solves the problem, either, since extremes at either end
of that spectrum also defy application of a general rule. If a child is placed
in detention or otherwise suffers injury for bringing her stuffed donkey to
show & tell because the teacher is a fervent Republican, would any on the
list be hostile to a viewpoint discrimination claim? Alan's "discrimination,"
on the other hand, hardly seems actionable. I'm on
the side that would place the Oliva case in the former category ("read
from your favorite book," which happens to be the Beginner's Bible). I
wouldn't be surprised if a great deal of disagreement results from differing
reactions to the actual harms suffered. Being denied the ability to proselytize
or even merely speak might not seem to be as great of an injury as being
expelled or placed in detention, but is the distinction constitutionally
significant? Roman
Storzer |
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu 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.
