As Dean pointed out in this post, "A lot of discussion concerning A.B. over the years has taken place "under the radar," via email between the authors, usually with Ruchira at the hub of the network. We get caught up in a topic, have at it among ourselves, and then--oops, sorta accidentally--we end up publishing the proceedings as a post and comments." So it happens once again.
I must point out that Dean, who finds little time to publish his thoughts on the blog, has detailed discussions with me behind the scenes on all sorts of topics. And frequently, he sends me links to interesting articles on the web. Just yesterday, he forwarded this piece in the WSJ Law Blog and naturally, we got to talking.
Here’s a strange little constitutional riddle for you: When can a spoken statement constitute a violation of the First Amendment?
Answer: When the speaker is a government employee and the spoken statement amounts to an “establishment” of one religion over another.
Granted, it’s a bit of a trick question, as the First Amendment violation involves the Establishment Clause rather than the Free Speech Clause, but we still think it’s kind of fun.
We came across this little quirk earlier today while reading about an interesting lawsuit heading up to the Ninth Circuit.
The backstory: In 2007, a public high-school teacher in Orange County, Calif., made some provocative statements in an AP history class slamming religion pretty hard.
The teacher, James Corbett of Capistrano Valley High School in Mission Viejo (which graduated former Los Angeles Raider Todd Marinovich) referred to Creationism as “religious, superstitious nonsense” during a 2007 lecture. Corbett made a host of other controversial statements as well. One of his students, Chad Farnan, sued Corbett and the school district, alleging a violation of his First Amendment Rights.
In May, a federal judge in Santa Ana, Calif., James Selna, granted summary judgment, partly in favor of Farnan and partly in favor of the defendants. Click herefor the opinion. Specifically, Judge James Selna ruled that the “superstitious nonsense” comment violated Farnan’s rights, but ruled that nearly two dozen statements did not. Both sides appealed to the Ninth Circuit.
The exchange between Dean and me on this matter went like this: (seems like neither of us is much of an authority on the First Amendment and I don't agree with Stanley Fish as often as Dean does)
Ruchira: Great! Did the student also sue his chemistry, physics and biology teachers? I am sure what they teach may also constitute "harsh" words (or at least summary judgment) against religion. Yeah, teachers need to be careful to temper their language. But "superstitious nonsense" doesn't sound particularly abusive to me. But then, I guess it might if it was directed against something I held dear to my heart.
BTW, do parochial religious schools say "harsh" things about other religions or against atheists? Can one sue?Dean: Your first remark echoes one of the comments to the story.
Not being religious, I can't quite figure just how insulting "superstitious nonsense" might strike me. Let's say I love the music of Johann Sebastian Bach, which I do, religiously. If a professor in a music course decided to announce that Bach's piddling and diddling can't hold a light to the masterful work of Elvis Costello, whose music I abhor, I'd just think the professor's crazy. It's easy to chalk this one up to the loony tunes in OC, of course, among them the teacher, who ought to have known better! I suspect that a rarely occasional critical remark about creationism would not amount to establishment of religion, but I can also see how a teacher who insists on trashing it--when, face it, the whole argument against it is that it's irrelevant to the course--might cross a line.
This gets to an issue Stanley Fish has been addressing much lately, namely, the injection of personal beliefs and agendas into the professional forum of the classroom. I like Fish's take if only because it's so damn sensible. Sure, all teaching imports a political or potentially religious message, but it's one thing to let it (if "let it" is the right phrase, since it's unavoidable) drip in through the vagaries of linguistic play and insidious ideological discipline, another to present it center stage at every opportunity. Of course, it's also possible the teacher was simply refuting, albeit in an imprudent manner, some student's suggestion that the creationism deserved a place on the course syllabus. The answer to that, of course, is that that's up to the State of California and, to some extent, the teacher himself. But my gosh, history teachers teach a lot about "religious, superstitious nonsense"! That's history! I'm reading a biography of Anne Boleyn right now. QED.
Parochial schools are free to say anything they care to about other religions, I imagine, short of hate speech. The First Amendment applies to state actors. Of course, parochial schools enjoy tax-exempt status, so there are avenues available to attack egregiously unconstitutional behavior. There is the Bob Jones University case as an instance of that particular dynamic
I do believe that it makes no difference that the remarks were critical of religion, and not affirmative efforts to establish any particular creed. I don't think that's how the FA works. I also know that I know little about the FA. It's one of those purportedly interesting law school topics that I have always found a little dull, scholastic, contrived, superfluous. But that's me.
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