I doubt that a typical six-year-old is going to much notice
this (I say this as a father of a six-year-old and a seven-year-old) --
especially once he's told that everyone is allowed to access the school
equally, and that what he sees at the school those days comes from the group,
not from the school. But if you think it necessary, you can add, "You might
notice that some groups have decided to use the school more than others. But
that's their decision. We at the school just decided to open it to anyone who
wants to come."
But if you think this isn't enough, and that some six-year-olds
will be confused, wouldn't the "six-year-old might be confused" standard go
rather too far? I suppose a six-year-old who sees the principal going to
church Sunday might think that the school is religious, and (to return to the
religious garb case) a six-year-old seeing a teacher wearing a yarmulke might
think that this was the school's choice and not the teacher's (even though
other teachers don't wear yarmulkes). It seems to me, though, that
constitutionality should be determined by something other than the possibility
that some six-year-olds, despite a disclaimer, won't fully grasp the
distinction between private choice and public choice.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Monday, August 15, 2011 9:53 AM
To: Law & Religion issues for Law Academics
Subject: Re: Establishment Clause, equal access, and confusion
And how would the school explain to six-year-old students why the school is
open to such uses only on Sundays; and why, just coincidently, the
overwhelmingly predominant uses of the school are for Christian religious
services?
Don't get me wrong -- this doesn't mean that I necessary think there would be
an EC violation. But I am inclined to think that, at a minimum, the school
must (but cf. Braunfeld) expand its access policy beyond Sundays; provide very
robust disclaimers (per the controlling opinions in Pinette) -- disclaimers
explicable to young students (more of a challenge than Eugene suggests); and
perhaps even make special efforts to ensure that an array of groups, religious
and nonreligious, are encouraged to make use of the school.
On Mon, Aug 15, 2011 at 12:40 PM, Volokh, Eugene
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
I've never seen the force of concerns about confusion about
government endorsement created by equal access proposals, especially when
there's time to explain things to the confused people. Schools' job is to
dispel confusion among students about various things. They have lots of
opportunity to do it. How hard is it to put up signs - and, if necessary, even
make an announcement in class or in some handouts - that say something like:
Our school system opens up space after hours to any community group that wants
to use it. This is our way of helping people speak on whatever subjects they
want to speak about. All groups are equally entitled to use this space, even
if they say things that other people might disagree with - that's what
promoting free speech is all about. So please keep in mind that the things you
see said and displayed here after hours don't come from the school system or
the government - they come from the private groups that are using this space.
Not a complicated message, and in fact a message that's worth teaching to the
students generally. (Of course, this is just what I cobbled together in a
couple of minutes; naturally, this can be edited to be clearer.) And if the
constitutional norm is equal treatment, which I think it should be, then the
answer to the argument that the government may reject the norm because of the
risk of confusion is that there's a less restrictive means of avoiding the
confusion: educating the public about the equal-access nature of the program.
This problem, incidentally, likewise comes up with the statutes
barring teachers from teaching in religious garb (which might be broad enough
to cover yarmulkes and headscarves, though most clearly applies to nun's habits
and the like). The statutes were upheld by two lower courts a few decades ago,
but a more recent lower court decision struck one down, I think, and rightly
so. Any concerns about confusion on the students' part can be easily
dispelled, I think, by simply teaching students - and it shouldn't take long -
that in our society different people have different beliefs, that some people
believe that they need to wear particular religious clothing, and that these
beliefs are the teachers' own, not the schools'. Again, not a complicated
message, and one that's worth teaching in any event.
To be sure, some people might remain confused even after this,
and might insist on believing that the government is endorsing religion even
when the government accurately and clearly reports that it simply provides
equal access. But this possibility that a few people might be confused, even
when the government makes clear that all it's offering is equal access - just
like the equal access offered to religious groups in many contexts, such as tax
exemptions, the use of GI Bill grants, and so on - doesn't strike me as reason
enough to reject equal access.
Eugene
Marci Hamilton writes:
Apologies to Marty for overreading his reference to Lukumi. The facts of Bronx
Household indicate that the entire school is transformed into a worship center
every Sunday. Students entering to get their homework or for any other reason
would be confused regarding their school's support for the religious
organization. This moves the case away from the "club" cases. For this
reason, I do not share Marty's assumption about the Court's willingness to
overrule and/or to even take the case.
If separation means anything historically or contemporaneously, surely it means
that a public building can draw the line at being home to full-scale religious
worship. Is a courthouse that hosts bar association events required to permit
its building to be transformed into a worship center on the relevant Sabbath?
Part of the reason this is difficult is because Rosenberger was decided wrongly
in my view, but the cases do not mandate a return to the days of establishment
when public buildings were worship buildings and vice versa.
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