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I recognize that it
makes this case seem much more troubling to characterize the university policy
as a blanket ban on all religious speech in a person's private room. But
I'm afraid we're beginning to argue scenarios somewhat different from what's
been presented. Eugene characterizes this as "allowing the RA to engage in a wide
range of speech in his dorm room -- just not religious speech" and the
"university ... trying to govern what RAs say to their friends and
classmates -- even ones who aren't coming in for counseling -- at any time
during the day in their dorm rooms." It would be helpful to know the
source for these categorical characterizations, which seem to me to go beyond
the facts in evidence. My own reading of what’s happening -- based, I admit, on only a sketchy
newspaper story combined with my own experience on a campus -- is that the RA makes
it public knowledge that he hosts Bible study in his room or some common area
of the dorm (it's unclear which), and probably extends an invitation to those
who’d like to participate. (If these were not openly advertised
events, it’s doubtful they would have come to the University’s
attention as a matter of concern.) So what we have is not just any religious
speech exchanged among students in the privacy of someone’s room, but
rather, more precisely, an educational program, if not a devotional exercise,
being run by the RA and (probably) advertised within the workplace. The university’s
fear, as I understand it, is that students who don't share the RA's
perspectives will feel less able to come to him, *not* because of his personal
identity, beliefs, or the religious viewpoints he might express in his dorm
room, but because his public profile as an organizer of on-site religious
activities raises a concern that he may bring perspectives to their problems
that would be inappropriate for a state actor. Steve > -----Original Message----- > From: [EMAIL PROTECTED] [mailto:religionlaw- > [EMAIL PROTECTED] On Behalf Of Volokh, Eugene > Sent: Tuesday, November 08, 2005 12:02 PM > To: Volokh, Eugene; > Subject: RE: Bible study ban for RA's in UW-Eau Claire dorms > > Sorry if I was opaque: Rosenberger
is relevant because it held that > exclusion of religious speech was viewpoint discrimination even
when > partisan political speech was also excluded (since the U Va policy
was > no religious speech or partisan political speech). The
proper > comparison for determining whether the policy discriminates
against > religion is thus whether other ideological speech is allowed, not > whether partisan political speech is allowed. > > Nor do I think that Rust v. Sullivan is
quite apt here, for reasons > that Rosenberger pointed to. The school isn't trying to
convey some > programmatic message here; it's not setting up a forum for the > _expression_ of some particular government viewpoint. Rather,
it's > allowing the RA to engage in a wide range of speech in his dorm
room -- > just not religious speech (and political partisan speech).
And it seems > to me that this is especially so when the "workplace" is
necessarily the > person's home as well. If Rust applied, then the university
could ban > pro-choice speech by RAs in their dorm rooms, unpatriotic speech, > antiwar speech, and whatever else; can that possibly be right? > > Now if the university were to set up rules
for what RAs say to > students who come to their room for counseling, that might be a > different story. (There they might even be able to say that
the RAs > can't counsel students to get abortions, for instance.) But
when the > university is trying to govern what RAs say to their friends and > classmates -- even ones who aren't coming in for counseling -- at
any > time during the day in their dorm rooms, that seems to me pretty
far > from Rust. > > > > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Steve
Sanders > Sent: Tuesday, November 08, 2005 1:52 PM > To: ' > Subject: RE: Bible study ban for RA's in UW-Eau Claire dorms > > > All good points. But if this is properly framed as a case
about the > religious activities of a public employee in the workplace, I'm
unclear > how Rosenberger is relevant. The policy apparently says
nothing about > the freedom of ordinary students living in the dorms to apply for > university funds to organize Bible studies on equal terms with
other > activities. If we're analogizing non-employment lines of
First > Amendment doctrine, this seems closer to Rust v. Sullivan:
the > university is paying you to be someplace and to perform specific
tasks, > and certain things you may want to do during that university-paid
time, > whether religious or political, may be incompatible with the
purpose of > the role you've contracted to fill. > > I appreciate Steve Prescott's post. But since we don't have
information > on how the university enforces the policy with regard to political > ideology or other religions, I'd suggest it's not productive to
let such > speculation convince us that this must be religious discrimination > against Christians. (He may well be right, and if he is,
then the > university should be faulted.) > > As to > Whether the university is being hypocritical depends on whether
they're > trying to suppress the RA's personal identity as an open Christian > (which they clearly can't and shouldn't do) or his proselytizing
(if > indeed that's what's happening here, then it's a more legitimate > concern). It's not the RA who's the issue, it's his
in-the-workplace > activities. The legal question here turns, I think, on the
nature of > the Bible study sessions - whether they're within the legitimate
bounds > of personal free exercise, or more akin to what was happening at
the Air > > > Steve > _______________________________________________ > 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. > > |
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