Tinker and the Schoolhouse Gate (p. 1521)

Tinker concerned content based discrimination of political speech (students were not allowed to wear black armbands to protest the war).  Or was this “viewpoint” discrimination (would pro-war students have been allowed to wear yellow ribbons to express their support of the war)?  See p. 1521 (policy adopted in anticipation of antiwar armband expression).

Court holds (p. 1522):

A student’s rights therefore, do not embrace merely the classroom hours.   

When he is in the cafeteria, or on the playing field, or on the campus during 

the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without materially and substantially interfering with appropriate discipline in the operation of the school and without colliding with the rights of others.

 So, under Tinker, the personal speech of public school students (which includes, of course, their religious expression) is protected unless it "materially disrupts classwork or involves substantial disorder or invasion of the rights of others." (p. 1522) 

Moreover, school officials may not merely assert fear of disruption. In order to justify censorship as in Tinker, the school "must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." Id.

Now for some questions:

 Prof. Linder poses several good questions(link) for you to ponder:

--Do the speech rights of students increase as they get older? Do high school students have the right to speak in ways that elementary school students do not? Do university and graduate school students have the right to speak in ways that might be punished if they were students in a high school?
 
--Would Tinker have come out differently if school administrators could have demonstrated that the armband caused loud debates to break out in class? Fights to break out in the hall?

--In Tinker, the Court noted that the school banned armbands, but allowed other sorts of expression such as "Vote for Nixon" or "Vote for Humphrey" buttons. Would the school have had a stronger argument if it banned ALL forms of symbolic expression, campaign buttons, and clothing with messages? Would the school have prevailed in that case?

--Does a student in a predominately Jewish school have the right to wear a swastika to class to demonstrate his support for Nazi ideology? Does the First Amendment protect symbolic student speech only so long as it is not TOO controversial?

SCOTUS Takes Cheerleader's Free Speech Case

We will be discussing this case this semester.The Gotham Times has the story.

Here is the money quote:

It was a Saturday in the spring of 2017, and a ninth-grade student in Pennsylvania was having a bad day. She had just learned that she had failed to make the varsity cheerleading squad and would remain on junior varsity.

The student expressed her frustration on social media, sending a message on Snapchat to about 250 friends. The message included an image of the student and a friend with their middle fingers raised, along with text expressing a similar sentiment. Using a curse word four times, the student expressed her dissatisfaction with “school,” “softball,” “cheer” and “everything.”

Though Snapchat messages are ephemeral by design, another student took a screenshot of this one and showed it to her mother, a coach. The school suspended the student from cheerleading for a year, saying the punishment was needed to “avoid chaos” and maintain a “teamlike environment.”

The student sued the school district, winning a sweeping victory in the United States Court of Appeals for the Third Circuit, in Philadelphia. The court said the First Amendment did not allow public schools to punish students for speech outside school grounds.

Next month, at its first private conference after the holiday break, the Supreme Court will consider whether to hear the case, Mahanoy Area School District v. B.L., No. 20-255. The Third Circuit’s ruling is in tension with decisions from several other courts, and such splits often invite Supreme Court review.

 

And here is another description of the case:

 With their announcement that they had granted review in Mahanoy Area School District v. B.L., the justices returned to the often-complicated question of student speech rights. Over 50 years ago, in Tinker v. Des Moines Independent Community School District, the Supreme Court ruled that although students have First Amendment rights while they are at school, school officials can regulate speech that would substantially disrupt the school’s work. On Friday the justices agreed to decide whether their decision in Tinker applies to student speech that occurs off campus. The question comes to the court in the case of a Pennsylvania student who was removed from her high school’s junior varsity cheerleading team when, after failing to make the varsity team, she posted offensive Snapchat messages. The U.S. Court of Appeals for the 3rd Circuit ruled for the student, holding that Tinker does not allow schools to punish off-campus speech. The school district asked the Supreme Court to weigh in, which it agreed to do on Friday.

Friday is a "Wellness Day"

 Just a reminder that this Friday, April 2, is a "Wellness Day" so there will be no class. 

Or, if you prefer to view it through a diversity lens, there will be no class this year on Good Friday.

So depending upon your views, Happy Wellness Day or Happy Easter Weekend.

Con Law II Spring 2021 Tenth Week Wednesday March 31 and Thursday April 1

 Wednesday:  Snyder v. Phelps (link); Casebook p. 1412-1427

Thursday: Casebook p. 1447-1468

 We will meet on Zoom (join from Canvas recurring zoom page for this course) on Wednesday March 31 and Thursday April 1 to discuss the issues raised in our materials.

 

No videos.

 

Justice Breyer's Dissent in Espinoza

Consider this passage from Justice Breyer's dissent in Espinoza:

And what are the limits of the Court’s holding? The majority asserts that States “need not subsidize private education.” Ante, at 20. But it does not explain why that is so. If making scholarships available to only secular nonpublic schools exerts “coercive” pressure on parents whose faith impels them to enroll their children in religious schools, then how is a State’s decision to fund only secular public schools any less coercive? Under the majority’s reasoning,the parents in both cases are put to a choice between their beliefs and a taxpayer-sponsored education.

I don't think there is any risk that the Court will strike down funding only for secular public schools as violating the Free Exercise Clause.

But does Breyer have a point? Does the public school monopoly over k-12 funding "exert 'coercive' pressure on parents whose faith impels them to enroll their children in religious schools" rather than strictly secular public schools? 

In order for a POF (a person of faith) with 5 children to receive an appropriate education for her children, she must forgo the single largest benefit most citizens receive from government, a k-12 scholarship for her children to receive a secular education in government schools. Over 13 years of k-12 education for 5 children, she might be denied nearly $1 million dollars in benefits paid for by her family's tax payments. This is incredible coercive pressure to set aside her religious choice and send her children to secular government schools.

Should the Free Speech and Free Exercise Clauses require school choice for all children?

Contraceptive Mandate in Hobby Lobby: Does it promote diversity and inclusion?

 As a future inclusive leader in the law, how do you view the contraceptive mandate in Hobby Lobby concerning its impact on diversity and inclusion? Does it respect the diversity of the owners of family businesses? Does it respect religious diversity in a pluralistic nation?

Now, what about RFRA? Does it respect religious diversity and inclusion?

What are your thoughts?

How School Choice Advances Diversity and Inclusion

 School choice is a civil rights issue, one that advances diversity and inclusion in public funding of education. Notice these statements from Justices Alito and Gorsuch:

1. Alito: Today’s public schools are quite different from those envisioned by Horace Mann, but many parents of many different faiths still believe that their local schools inculcate a worldview that is antithetical to what they teach at home. Many have turned to religious schools, at considerable expense, or have undertaken the burden of homeschooling. The tax-credit program adopted by the Montana Legislature but overturned by the Montana Supreme Court provided necessary aid for parents who pay taxes to support the public schools but who disagree with the teaching there. The program helped parents of modest means do what more affluent parents can do: send their children to a school of their choice. The argument that the decision below treats everyone the same is reminiscent of Anatole France’s sardonic remark that “‘[t]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’” J. Cournos, A Modern Plutarch 35 (1928).

2. Gorsuch:  Kendra Espinoza, the lead petitioner in this case, is a single mother who works three jobs. She planned to use scholarships to help keep her daughters at an accredited religious school. That is, until the Montana Supreme Court struck down the tax credit program.

 

 

Con Law II Spring 2021 Ninth Week Friday March 26

As I mentioned, we will need to start meeting all three scheduled days now since there are no more video classes. 

 

So here is the assignment for our Zoom class on Friday March 26 at 1:15 PM:

 

 1. Reed v. Town of Gilbert (link); Casebook p.1389-1412.

Con Law II Spring 2021 Ninth Week March 24 and 25

 Remember this coming week--March 15-19--is our Spring Break or "wellness" week. Enjoy!

 When we return here is what we will be doing:

1. Wednesday: Trinity Lutheran (Link); Espinoza (notice Justice Thomas's concurring opinion in particular) (link); oral argument in Espinoza (link)
2. Thursday: City of Boerne case (casebook p. 1149-1157); Casebook p. 1807-1808; RFRA & Hobby Lobby: Hobby Lobby (Link); RLUIPA (link): Holt v. Hobbs (link)

You should also watch video number 14 in connection with Trinity Lutheran and Espinoza:

Video 14

https://use.vg/oE0YZ4

  Finally, we will meet on Zoom (join from Canvas recurring zoom page for this course) on Wednesday March 24 (video 14) and Thursday March 25 (no video) to discuss the issues raised in our materials.

 

 

Prof. Josh Blackman: Breaking: Ohio Challenges Constitutionality of American Rescue Plan Act (Updated)

 Josh Blackman reports on a lawsuit broght by the state of Ohio challenging the conditional spending provision of the stimulus bill.

 Money quote from Ohio's complaint

The Tax Mandate thus gives the States a choice: they can have either the badly needed federal funds or their sovereign authority to set state tax policy. But they cannot have both. In our current economic crisis, that is no choice at all. It is a metaphorical "gun to the head."

This is a Con Law I issue, but I post it for your information.

Mahanoy Area School District v. B.L.: Public School Speech Case Before SCOTUS in 2021

 

A preview of coming attractions for you to savor.

 Here is how SCOTUSblog describes the issue:

Issue: Whether Tinker v. Des Moines Independent Community School District, which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.

And here is how Oyez summarizes the facts:

 

Facts of the case

B.L., a student at Mahanoy Area High School (MAHS), tried out for and failed to make her high school's varsity cheerleading team, making instead only the junior varsity team. Over a weekend and away from school, she posted a picture of herself on Snapchat with the caption “Fuck school fuck softball fuck cheer fuck everything.” The photo was visible to about 250 people, many of whom were MAHS students and some of whom were cheerleaders. Several students who saw the captioned photo approached the coach and expressed concern that the snap was inappropriate. The coaches decided B.L.’s snap violated team and school rules, which B.L. had acknowledged before joining the team, and she was suspended from the junior varsity team for a year.

B.L. sued the school under 42 U.S.C. § 1983 alleging (1) that her suspension from the team violated the First Amendment; (2) that the school and team rules were overbroad and viewpoint discriminatory; and (3) that those rules were unconstitutionally vague. The district court granted summary judgment in B.L.’s favor, ruling that the school had violated her First Amendment rights. The U.S. Court of Appeals for the Third Circuit affirmed.

Question

Does the First Amendment prohibit public school officials from regulating off-campus student speech?

"Spring Break" Thoughts from Jemmy Madison

 

 

 Consider this excerpt from an article in First Things by Yuval Levin:

On January 24, 1774, the young James Madison, twenty-two years old and two years out of Princeton, wrote an exasperated letter to his college friend William Bradford, who lived in Pennsylvania. In Virginia, Madison wrote, a season of intolerance had dawned. “That diabolical, hell-conceived principle of persecution rages,” and perfectly well-meaning men of religion were finding themselves imprisoned for expressing any deviation from the views of the dominant Anglican Church. He told his friend that he had “squabbled and scolded, abused, and ridiculed so long” about this that he had no more patience for the fight. “So I leave you,” he concluded, “to pity me and pray for Liberty of Conscience to revive among us.”

 Link

Change to "deviation from the views of the [dominant cultural elites]" and it describes where I fear we are heading.

A Man For Our Times

 

This book is a book that everyone should read, before it is cancelled.

Buy the paper copy, not the electronic copy.

Also the movie version is fantastic.

Compelling Interest--Level of Generality

Remember, it is not sufficient for the government to argue that it has a generalized compelling interest in protecting same-sex couples from discrimination. The issue is more particularized:

Does Philadelphia have a compelling interest in requiring religious foster care ministries from "discriminating" (based upon their sincerely held religious beliefs about the nature and the good of marriage) even though the ministry is willing to refer same-sex couples to one of the many other agencies who will be happy to certify them as foster parents, and even though no same-sex couple has ever been denied an opportunity to be certified?

 

Rights Sacrificed on the Altar of COVID Restrictions--2 Weeks to Flatten the Curve?

 

                                               The Goalposts Keep Moving

 

 

1. Right to Worship

2. Right to travel

3. Right of Social Contact (especially during the lock-downs when families were unable to come together)

4. Freedom of Expression (mask mandates literally cover your facial expressions--your smile, your frown)

5. Medical Privacy (take a look at your "Safer Community" app)

6. Livelihoods were destroyed

7. Small businesses were forced to close (some forever)

8. The grades you earned were taken from 1Ls (and others)--with a P there is no difference between an A+ and a D

9. What are some others?

Fulton Oral Argument-Please Share Your Thoughts

 I would like everyone to share at least one insight about the oral argument in Fulton?

Justice Barrett Asks Some Key Questions

 

JUSTICE BARRETT: Good morning, Mr. Fisher. I have a question about something that some of the amicus briefs brought up, which is this third-party harm principle, the principle that religious beliefs can never give a believer the right to harm a third-party even slightly.

I'm wondering if you agree with that and, if so, if you could tell me where in law the principle comes from.

 My response:

The answer is always stigmatic harm, that if even one foster agency "discriminates" against same-sex married couples it will harm the dignitary interests of same-sex couples and LGBT children in the foster system. Even though no same-sex couple has ever been denied participation in the program, and even though CSS will refer same-sex couples to one of the 30 other agencies who are happy to certify same-sex foster parents.

But doesn't it also create stigmatic harm to Catholics and other persons of faith when Philadelphia refuses to allow CSS to continue in a ministry it has been performing for more than 200 years? Does this cause dignitary harm to CSS and to Catholic children in the foster system and to Catholic families who would like to work with CSS to become foster parents? Indeed, isn't the dignitary harm even worse when Philadelphia's non-discrimination policy is a de facto sign saying practicing Catholic are not welcome to serve in this program.

Always look for harm on both sides of the controversy. What rule would minimize the harm for everyone?

Now this question from Justice Barrett: 

JUSTICE BARRETT: Well, let's imagine that the state takes over all hospitals and says from now on, you know, we are going to be responsible for hospitals, but we will contract with private entities to actually run them.

And so there's a Catholic hospital and gets a contract with the City to run it. In fact, it's a --a Catholic hospital that's in existence before the state adopts this policy.

And its contract with the state provides that there are --in the contract the state gives everyone is that you can get some exceptions for some medical procedures, but every hospital has to perform abortions.

In that context, do we analyze this as a licensing question, or, given that the Catholic hospital can't even enter the business without this contract, do you still say that this was the provision of a contractual service?

 

 Me:

This really isn't a hypo given the government's near monopoly role in funding health care. Could the government contract with hospitals who wish to participate in Medicare, Medicaid, and Obamacare and say if a hospital wishes to participate in these health care programs it must not discriminate against abortion, sterilization, and gender transition surgery?

What should be the role of the Free Exercise Clause in the massive Welfare/Regulatory State?

What are your thoughts? Must Catholics and other ministries either change their beliefs about the sexual revolution or get out of the business of providing charitable services such as adoption and health care?