Re: Axson-Flynn
On Wed, 4 Feb 2004, Rick Duncan wrote: The 10th Circuit finally came down in Axson-Flynn (the case involving the LDS drama student who refused to say the F word or to curse in God's name as part of class exercises at the U of Utah). The Court ruled in her favor and reversed and remanded. [snip] The court held that since the drama faculty had exempted a Jewish student from a required improvisational exercise on Yom Kippur but refused to grant Ms. Axson-Flynn an exemption from saying the forbidden words when performing required exercises, there was at least a genuine issue of material fact as to whether the University maintained an individualized exemption process which would trigger strict scrutiny under Smith-Lukumi-Sherbert. It seems right to me. [snip] Thanks to Rick for bringing this to our attention. I think that as long as individualized exemptions remain a legally viable distinction from Smith, the disputed issue here does seem genuine and material. David B. Cruz Professor of Law University of Southern California Law School Los Angeles, CA 90089-0071 U.S.A. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Axson-Flynn
Sandy, the Tenth Circuit opinion does not suggest that your hypo would state a claim -- to the contrary. The court's opinion explains in great detail why a school has the authority to require students to fullfill curricular requirements, and why that does not make out a "compelled speech" or free exercise violation. The only reason the court of appeals reversed the summary judgment on the free speech claim was because there was a smidgen of evidence in the record that defendants' reason for requiring strict "script adherence" was hostility to plaintiff's Mormonism, rather than a genuine, consistently applied pedagogical rule. Similarly, the court allows the free exercise claim to go forward for trial because there is some evidence that defendants selectively singled out the plaintiff for more stringent treatment, and that the defendants had a policy of "individualized exemptions" that they applied to permit other students to "opt out" of certain curricular assignments, but which they refused to apply to permit the plaintiff to "opt out." - Original Message - From: "Levinson" [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Wednesday, February 04, 2004 4:49 PM Subject: Re: Re: Axson-Flynn I haven't read the opinion. But let me ask this: Let's assume that the play chosen for presentation in a given semester was, say, David Mamet's Glengarry Glen Ross, which, to put it mildly, includes tons of profanity. A student presents herself at an audition, saying, "you realize, of course, that I cannot use those words, so I expect you to rewrite my part if I am chosen." Is there anyone on this list who believes that this "states a claim," so to speak, or can the audition be conditioned on the willingness to read the lines as written by the playwright? Does anyone on this list believe that the director has a duty to select a play that everyone in the class would be comfortable with? (Recall Butler v. Michigan, where the Court struck down a requirement that all literature sold in bookstores had to be acceptable for an audience that included children. Surely that was correct.) So is this case (which, recall, I haven't yet read) simply fact-specific or does it state a generalizable principle that would affect my hypothetical. (Or, with regard to the Jewish student), does she have a right that the play not be performed on Yom Kippur? Surely not. So, in the alternative, does the director have the duty to train an understudy who can perform on Yom Kippur rather than impose a duty on anyone selected to perform in the play to show up at all performances unless sick?)sandy-Original Message-From: David Cruz [EMAIL PROTECTED]To: Law Religion issues for Law Academics [EMAIL PROTECTED]Date: Wed, 4 Feb 2004 13:13:53 -0800 (Pacific Standard Time)Subject: Re: Axson-FlynnOn Wed, 4 Feb 2004, Rick Duncan wrote: The 10th Circuit finally came down in Axson-Flynn (the case involving the LDS drama student who refused to say the "F" word or to curse in God's name as part of class exercises at the U of Utah). The Court ruled in her favor and reversed and remanded. [snip] The court held that since the drama faculty had exempted a Jewish student from a required improvisational exercise on Yom Kippur but refused to grant Ms. Axson-Flynn an exemption from saying the forbidden words when performing required exercises, there was at least a genuine issue of material fact as to whether the University maintained an individualized exemption process which would trigger strict scrutiny under Smith-Lukumi-Sherbert. It seems right to me. [snip]Thanks to Rick for bringing this to our attention. I think that as longas "individualized exemptions" remain a legally viable distinction fromSmith, the disputed issue here does seem genuine and material.David B. CruzProfessor of LawUniversity of Southern California Law SchoolLos Angeles, CA 90089-0071U.S.A.___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Re: Axson-Flynn
To answer Professor Levinson's concern below - the facts of the case are not that the student wanted to be in a certain play. Rather, she was initially told that she could be in the class despite her refusal to use foul language, then was given mandatory class assignments which included foul language, then criticized for substituting words, and told that she would be graded lower because of it (although some disciplinary decisions were later reversed). Professor Foltin's concern is that I fear that academe's response will be to decline altogether to exempt students for reasons of religious observance. Actually, the individualized exceptions analysis applies whenever ANY exceptions, not just religious ones, are applied on a case to case basis. So, to avoid acommodating First Amendment rights, the school would have to establish requirements which apply in all cases, with no exceptions whatsoever. Of course, they probably won't do that, because the reality is that the requirements really are not so important. I also think the opinion is very good. It also has a good discussion on the limits of the individualized exceptions doctrine. If there is a spelled-out, objectively determined exception, that doesn't involve the case-by-case inquiry involved in individualized exceptions. After all, the controlled substances act at issue in Smith itself had an exception for prescribed medication. It also has an interesting approach to the hybrid rights problem. I'm not sure it flies, but those interested in hybrid rights should review it and reach their own opinion. Sam Ventola Denver, Colorado From: Levinson [EMAIL PROTECTED] Reply-To: Law Religion issues for Law Academics [EMAIL PROTECTED] To: [EMAIL PROTECTED] Subject: Re: Re: Axson-Flynn Date: Wed, 04 Feb 2004 15:49:16 -0600 I haven't read the opinion. But let me ask this: Let's assume that the play chosen for presentation in a given semester was, say, David Mamet's Glengarry Glen Ross, which, to put it mildly, includes tons of profanity. A student presents herself at an audition, saying, you realize, of course, that I cannot use those words, so I expect you to rewrite my part if I am chosen. Is there anyone on this list who believes that this states a claim, so to speak, or can the audition be conditioned on the willingness to read the lines as written by the playwright? Does anyone on this list believe that the director has a duty to select a play that everyone in the class would be comfortable with? (Recall Butler v. Michigan, where the Court struck down a requirement that all literature sold in bookstores had to be acceptable for an audience that included children. Surely that was correct.) So is this case (which, recall, I haven't yet read) simply fact-specific or does it state a generalizable principle that would affect my hypothetical. (Or, with regard to the Jewish student), does she have a right that the play not be performed on Yom Kippur? Surely not. So, in the alternative, does the director have the duty to train an understudy who can perform on Yom Kippur rather than impose a duty on anyone selected to perform in the play to show up at all performances unless sick?) sandy -Original Message- From: David Cruz [EMAIL PROTECTED] To: Law Religion issues for Law Academics [EMAIL PROTECTED] Date: Wed, 4 Feb 2004 13:13:53 -0800 (Pacific Standard Time) Subject: Re: Axson-Flynn On Wed, 4 Feb 2004, Rick Duncan wrote: The 10th Circuit finally came down in Axson-Flynn (the case involving the LDS drama student who refused to say the F word or to curse in God's name as part of class exercises at the U of Utah). The Court ruled in her favor and reversed and remanded. [snip] The court held that since the drama faculty had exempted a Jewish student from a required improvisational exercise on Yom Kippur but refused to grant Ms. Axson-Flynn an exemption from saying the forbidden words when performing required exercises, there was at least a genuine issue of material fact as to whether the University maintained an individualized exemption process which would trigger strict scrutiny under Smith-Lukumi-Sherbert. It seems right to me. [snip] Thanks to Rick for bringing this to our attention. I think that as long as individualized exemptions remain a legally viable distinction from Smith, the disputed issue here does seem genuine and material. David B. Cruz Professor of Law University of Southern California Law School Los Angeles, CA 90089-0071 U.S.A. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Re: Axson-Flynn
I'm much relieved--and not really surprised--by Marty's reassurance as to what the opinion reads. (Quite typically, he's actually read it!) Recall, though, that I wasn't asking so much whether courts would in fact recognize a claim in the hypotheticals that I presented as whether anyone on this list would wish to recognize a claim. I'm trying to determine whether there is indeed some element of a consensus in this wonderfully diverse group of people on the list. It's no small matter if, for example, committed secularists recognize the legitimacy of a university chorus choosing to sing the Messiah (and requiring a Jewish student to sing with gusto about Jesus as the Messiah) or if Rick Duncan would agree that I can decide to put on Glengarry Glen Ross or, say, Inherit the Wind, and require a Christian student to read the lines as written). (As I write these lines, I realize that I'm ambivalent about the (state) university choosing the Messiah) sandy sandy -Original Message- From: Marty Lederman [EMAIL PROTECTED] To: Law Religion issues for Law Academics [EMAIL PROTECTED] Date: Wed, 4 Feb 2004 17:21:01 -0500 Subject: Re: Axson-Flynn Sandy, the Tenth Circuit opinion does not suggest that your hypo would state a claim -- to the contrary. The court's opinion explains in great detail why a school has the authority to require students to fullfill curricular requirements, and why that does not make out a compelled speech or free exercise violation. The only reason the court of appeals reversed the summary judgment on the free speech claim was because there was a smidgen of evidence in the record that defendants' reason for requiring strict script adherence was hostility to plaintiff's Mormonism, rather than a genuine, consistently applied pedagogical rule. Similarly, the court allows the free exercise claim to go forward for trial because there is some evidence that defendants selectively singled out the plaintiff for more stringent treatment, and that the defendants had a policy of individualized exemptions that they applied to permit other students to opt out of certain curricular assignments, but which they refused to apply to permit the plaintiff to opt out. - Original Message - From: Levinson [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Wednesday, February 04, 2004 4:49 PM Subject: Re: Re: Axson-Flynn I haven't read the opinion. But let me ask this: Let's assume that the play chosen for presentation in a given semester was, say, David Mamet's Glengarry Glen Ross, which, to put it mildly, includes tons of profanity. A student presents herself at an audition, saying, you realize, of course, that I cannot use those words, so I expect you to rewrite my part if I am chosen. Is there anyone on this list who believes that this states a claim, so to speak, or can the audition be conditioned on the willingness to read the lines as written by the playwright? Does anyone on this list believe that the director has a duty to select a play that everyone in the class would be comfortable with? (Recall Butler v. Michigan, where the Court struck down a requirement that all literature sold in bookstores had to be acceptable for an audience that included children. Surely that was correct.) So is this case (which, recall, I haven't yet read) simply fact-specific or does it state a generalizable principle that would affect my hypothetical. (Or, with regard to the Jewish student), does she have a right that the play not be performed on Yom Kippur? Surely not. So, in the alternative, does the director have the duty to train an understudy who can perform on Yom Kippur rather than impose a duty on anyone selected to perform in the play to show up at all performances unless sick?) sandy -Original Message- From: David Cruz [EMAIL PROTECTED] To: Law Religion issues for Law Academics [EMAIL PROTECTED] Date: Wed, 4 Feb 2004 13:13:53 -0800 (Pacific Standard Time) Subject: Re: Axson-Flynn On Wed, 4 Feb 2004, Rick Duncan wrote: The 10th Circuit finally came down in Axson-Flynn (the case involving the LDS drama student who refused to say the F word or to curse in God's name as part of class exercises at the U of Utah). The Court ruled in her favor and reversed and remanded. [snip] The court held that since the drama faculty had exempted a Jewish student from a required improvisational exercise on Yom Kippur but refused to grant Ms. Axson-Flynn an exemption from saying the forbidden words when performing required exercises, there was at least a genuine issue of material fact as to whether the University maintained an individualized exemption process which would trigger strict scrutiny under Smith-Lukumi-Sherbert. It seems right to me. [snip] Thanks to Rick for bringing this to our attention. I think that as long as individualized exemptions remain a legally viable distinction from Smith, the disputed issue here does seem
