UW isn't "banning a particular kind of speech ... defined by its religiosity"
for all students, only for employees in a particular working/educational
context. That's an important distinction we should not elide.
It's perhaps sloppy for the university to characterize its concern as
"approachability." It raises all the questions Eugene rightly suggests. But
at the same time, I take it that we all appreciate the difference between a
judge who is publicly known as a conservative Christian, and a judge who sits
on the bench wearing his Ten Commandments robe. As a matter of law, one could
legitimately object to the "approachability" of the latter but not the former
(unless perhaps you have Tom Delay's attorney working for you...). The
distinction between personal conduct/belief and perceived state action is not
always an easy one, but it is not an unfamiliar one.
A student may decide not to discuss a problem with an RA for a host of reasons
-- religion, politics, personality -- that we can't and shouldn't elevate to
legal concerns. But a student at a public university has the right to expect
that someone who is a cross between an advisor and a 24-hour cop will
not apply
his religious perspectives to his official duties. If the facts here (many of
which we don't know) would lead a reasonable student to the conclusion
that the
RA would do so, the university has not overstepped its bounds.
While I respect those who would characterize this as a free-exercise claim, I
think it's properly analyzed under Pickering and public employee speech
doctrine, which courts regularly apply to religious speech. See, e.g., Marchi
v. Bd. of Coop. Educ. Servs. of Albany, 173 F.3d 469, 476 (2d Cir. 1999)
("[W]hen government endeavors to police itself and its employees in an effort
to avoid transgressing Establishment Clause limits, it must be accorded some
leeway, even though the conduct it forbids might not inevitably be determined
to violate the Establishment Clause and the limitations it imposes might
restrict an individual's conduct that might well be protected by the Free
Exercise Clause if the individual were not acting as an agent of
government.").
Steve
Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>:
I may have been imprecise; my point is not that UW was trying to
ban all religious speech, only that it was expressly banning a
particular kind of speech (Bible study groups, or perhaps more generally
religious study meetings) defined by its religiosity. Such
discrimination against subcategories of religious speech is
presu
mptively unconstitutional, it seems to me, even if it doesn't
discriminate against all religious speech.
But as to the university's fear about the student's fear, I'm
not sure I quite understand Steve's argument. I agree that a student
won't be influenced by religious views that he never hears about. But
say that a student hears that the RA is a minister in Church X, or is
prominently involved in Church X, or conducts a student group outside
his dorm room that relates to Church X. Why would the student
distinguish that from the RA's conducting Church X Bible study in his
dorm room? In either case, a student might equally say "I think
enthusiastic members of Church X have certain biases, and that makes me
reluctant to ask those members for advice." If the student, for
instance, is gay, and thinks that members of Church X strongly
disapprove of homosexuality, I take it that it's the RA's publicly known
membership in Church X that would make the student uncomfortable about
coming to the RA, regardless of how this membership becomes known.
Eugene
Steve Sanders writes:
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.
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