Duncan Con Law 2

Front 1

Incorporation of the Establishment Clause

Back 1

i. Doctrine of Incorporation: Language of the 14th Amendment is used to incorporate selected provisions of the Bill of Rights
1) Nor shall any state deprive any person of life, liberty or property, without due process
of law.
2) Originally the Bill of Rights applied to the federal government. Through this idea of
incorporation, protections of liberty were incorporated against the state through the
14th Amendment.
3) The liberty clause of the 14th Amendment incorporates or absorbs selected
fundamental individual liberties from the original bill of Rights and protects them
against deprivations under state law. The liberty clause is the portal through which
individual liberties originally protected against federal laws become protected against
state deprivations.
a) Only fundamental liberties get incorporated against the states. Not structural
limitations. Structural limitations are only applied against the federal
government.
4) So the question is: Is it a fundamental individual liberty interest so that it is
incorporated against the states.
5) Justice Thomas (usually writing concurring opinion)
Is this a liberty interest or is it a structural limitation on power of Congress to enact
laws “respecting” an Establishment of a national religion?
a) Establishment Clause was never “thoughtfully” incorporated:

i.
ii.

Everson just assumed incorporation b/c part of 1st Amendment
Purpose of EC was to keep Federal Govt. out of questions of religious
establishments and was left to the states

b) h o mas ’ Tw o V i e w p o i n ts
i. Total Dis-Incorporation
1. EC is a structural provision designed to uphold federalism, therefore it cannot be incorporated
a. He’s lost on this issue (Duncan thinks he’s right)
b. Too much water under the bridge to reverse; has become part
of Constitution’s fabric

ii.

Partial Incorporation

1. EC incorporated only to extent that liberty interest is being incorporated not to the extent that a structural provision is






ii.

a.
b. Everson v. Board of Education

Protects SOME religious liberty from deprivations and
coercive burdens
Protects right not to speak (ex: Pledge of Allegiance
unconstitutional if compelled to say it)

Front 2

Everson v. Board of Education

Back 2

Court upheld a state law that reimbursed parents for the cost of busing their children to
parochial schools.
1) Holdings
a) Justice Black: the aid served the state's secular interest in getting kids safely and expeditiously to schools.
b) The state should be neutral in its relations with groups of religious believers and
non-believers; it does not require that the state be their adversary.
c) The reason they upheld it was because the purpose of the program was not to
advance religious purposes but to advance a public interest of getting kids to

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school safely.
d) Dissent: you should not use any money to fund religion
2) There is an emphasis in this case on neutrality

Front 3

The Establishment Clause

Back 3

Purpose of the Establishment Clause was a federal purpose that was intended to protect state autonomy of the religious establishment.
1) It was to protect state's rights to either establish or disestablish religion in the state.
2) We are supposed to have federal submission and state supremacy but right now we
have state submission to federal supremacy.
3) Jefferson: purpose of the EC was to put "a wall between church and state"
4) Only prohibits government speech and not private speech.
a) This is why Valedictorians may give religious invocations as they are speaking on behalf of themselves and not the school (government).

Front 4

Neutrality

Back 4

The Establishment Clause requires that the government be neutral in its relations with groups of religious believers and non-believers. It does not require the state to be
their adversary.
2) A law is neutral with respect to religion if it neither “encourages nor discourages religious belief or disbelief, practice or non-practice, observance or non-observance.” (Prof. Laycock’s definition)
3) We either let everything in or we leave everything out.
a) We allow everything to be said, heard, seen in the marketplace and the government stays out
b) Or we don’t create a forum and we leave everything out.
4) Tension is seen here between the Free Exercise Clause and the Establishment Clause
a) If you include religion then someone will say that it violates the Establishment Clause. If you exclude religious groups, then someone will say that you are violating the free exercise clause.
b) This tension may be resolved through neutral programs: everyone is in or
everyone is out.
5) Everson is illustrative of EC provisions.
a) Court upheld a state law that reimbursed parents for the cost of busing their children to parochial schools. The purpose of the program was to get kids safely to school. The program leaves up to private choice of the parent where their kid will attend school.
b) If the school said that they wouldn't take kids to school that went to sectarian
schools, then arguably this is in violation of their Free Exercise

Front 5

. Tests for the Establishment Clause
Coercion Test (Liberty Test)

Back 5

a) The government may not coerce anyone to support or participate in any religion or its exercise and may not give direct benefits to religion to such a degree that
it establishes official religion or tends to do so.
b) Only Liberty is protected by EC and as long as there is no coercion, no one’s
liberty is being taken

i.
ii.

Relates to Thomas’ idea of Partial Incorporation
The First Amendment is intended only to effect the federal government.
So under partial incorporation, only the liberty component would be
incorporated against the states. So only the coercion test would apply.

c) Problematic b/c allows government to do anything regarding religion as long as
nobody is being coerced to participate
d) This test doesn’t work on religious displays unless you use the “watered down”
Kennedy version which says that mere peer pressure can be coercive.
i. Otherwise the remedy is only to avert your eyes.
e) Examples of coercion: fines, subtle coercion in schools
f) Two coercion tests: the hard coercion (government saying you must do this) and
soft coercion (circumstances such as peer pressure that make the government
action coercive)
g) Kennedy believes in the coercion test and is comfortable with government
recognition as long as it is non-coercive. He is currently the swing vote.

Front 6

Lemon Test

Back 6

) Elements
The governmental action must adhere to all three prongs of the test

i. ii.

iii.

The statute must have a secular legislative purpose
Its principal or primary effect must be one that neither advances nor
inhibits religion
The statute must not foster an excessive government entanglement with
religion.

b) Interpreting the elements

Entanglement:
1. Does the government have to ask a bunch of intrusive questions?
a. If yes, likely the action is fostering governmental entanglement.

ii.

Advance/inhibit:

1. Duncan has never seen a case that applies the "inhibit" part of the test, other than to say that the action is neutral.
2. Basically this is the neutrality test.
a. Zorach v. Clauson












iii.












Purpose:

1. Facts: Student released, by parental request, to attend any worship or religious instruction of their choosing off school property. Students whose parents do not
request relief must remain at school for the release
period.
2. Holding: Release time program does not violate the EC
because it is advancing religious liberty rather than advancing religion

1. Legislative purpose must be secular.
2. Scalia doesn't think so. He doesn't think that the legislative history is
pertinent
3. Keep people's mouth's shut on the legislative floor. You need to
have a "clean" legislative history, otherwise it might likely fail the
Lemon Test.

Front 7

3) Endorsement Test (O'Connor's Test)

Back 7

) If purpose of law or its effect is to endorse religion, then there is EC violation
b) Implicates the idea of the reasonable observer

i.



ii.

Stevens: wants to say if there is any reasonable person that might see it as an endorsement, then it violates the EC. Almost like an eggshell plaintiff, so long as their views aren't unreasonable.
O'Connor: this person is the more informed than the casual passerby who
has context of the issues surrounding the governmental action.

c) Basically applies the first two prongs of Lemon Test
d) Whether a reasonable observer would view such longstanding practices as a
disapproval of their particular religious choices, in light of the fact that they
serve a secular purpose rather than a sectarian one and have largely lost their
religious significance over time.

Front 8

Facial v. As applied challenges

Back 8

1) Facial: attack on whole law itself before it is ever actually carried out; causes Court to decide issues not actually before
1. RULE: Disfavored if any possible application of law that would be constitutional
2) As-Applied: attack on how law is carried out
1. RULE: Instead of invalidating the entire law, Court will wait for unconstitutional applications of law to come before and enjoin the unconstitutional applications

Front 9

Release Time program cases
Zorach v. Clauson

Back 9

a) Facts: School allowed students to leave for one hour/week at parent’s request to attend religious instruction. Students left behind bring EC challenge arguing they are being deprived an hour of education/week. Program didn’t use public



Cons titutional Law II Page 4

school facilities or funds.
a. Is this a wasted hour or a study hall?
b) Hold: No EC problem. There is no coercion or endorsement involved and religious liberty is being accommodated and not endorsed. Church and State should not be aliens nor hostile to each other
a. Entanglement problem avoided by allowing parents to police the program
c) Distinguished from McCollum. There was much greater government involvement in McCollum than in Zorach.

Front 10

McCollum v. Board of Education

Back 10

Facts: Classrooms were used for religious instruction and force of public school was used to promote that instruction. Program used public school facilities and funds.
b) Hold: EC problem; there was close cooperation between school authorities and
religious council in promoting religious education at a public school.

Front 11

School Prayer Cases

1) Engel v. Vitale

Back 11

Facts: The school board directed the district's principal to cause a prayer to be said aloud by each class in the presence of a teacher at the beginning of each school day. The prayer was voluntary.
b) The court strikes it down because the district is encouraging prayer
1. School does not have the power to institute or draft a prayer for the school. (implicates incorporation)
2. "The EC does not depend on a showing of compulsion and is violated by
the enactment of laws which establish an official religion whether those
laws operate directly to coerce non-observing individuals or not."
c) Hold: EC Problem; government-directed prayer in public schools, even if
denominationally neutral and non-mandatory, violates EC whether or not it is a
minor or insignificant endorsement
1. Violated secular purpose prong of Lemon (structural limitation-no liberty
is being taken)
2. Not considered private speech because Court believed it would lead to
perceived endorsement of religion
d) This case implicates the idea of the Pledge of Allegiance as an EC violation
1. It is voluntary so there is no coercion, unless you consider Kennedy's idea of soft coercion.
2. However, if you consider Engel and the idea that government has no
business drafting prayers, it could be seen as an endorsement of religion.

Front 12

Santa Fe Independent School District v. Doe

Back 12

Facts: School permits elected student to give invocation before football game over PA system. Invocation must comply with school guidelines.
b) Holding: Violation of EC because it is government-sponsored speech

Government speech Private speech
• EC forbids talk of religion, endorsement • Free exercise and free speech clauses protect
• The constitution protects this and permits it
• The EC is designed to also protect people from
being inhibited in practicing their religion
c) School sponsored private speech because school set up election, school sets guidelines, history of program, school provides the forum.
d) Court says: School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are non - adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored



Cons titutional Law II Page 5

members of the political community
e) Kennedy's idea of soft coercion is also considered by the court in striking down
the invocation program. Attendance at the football games is de facto required
because everyone goes and it is expected even though it is not mandatory.

Front 13

Evolution Cases
1) Edwards v. Aguillard

Back 13

. Facts: School policy said if you teach evolution, you must also teach a competing view. The state purpose of the policy was to advance academic freedom, which therefore required balanced treatment.
2. Hold: EC Problem; facially invalidated for violating secular purpose prong of
Lemon
a. Academic Freedom is a secular purpose. However, Court believed it was a sham purpose b/c majority associates it with teacher’s academic freedom (enhancing freedom of teachers to teach what they will)
b. The purpose prong does a lot of work here. It is all about the purpose of
the program.
3. S cal i a’ s Di s s e n t : Academic Freedom is being misinterpreted and means student’s academic freedom (freedom from indoctrination). Legislature wanted to ensure students would be free to decide for themselves how world began based on a balanced presentation.
a. Protecting the academic freedom of the students would be a secular
purpose. But the majority doesn't use student academic freedom.
b. Academic Freedom carries less weight in elementary schools because
children are considered to be very impressionable.

Front 14

Cobb County (DC case)

Back 14

. Facts: School ordered new text on evolution but added sticker for complaining parents that indicated “evolution is a theory, not a fact…material should be approached with open mind, studied carefully, and critically considered.”
2. Hold: EC Problem; violates endorsement prong of Lemon
a. Secular purpose existed: (1) foster critical thinking by encouraging students to learn about evolution and (2) present evolution in a non- hostile manner (more believable argument than one Court chooses)
b. Flunks endorsement test and second "effects" prong of Lemon: a
reasonable observer would interpret sticker to convey endorsement of
religion saying those who favor it are outsiders to political community
i. Doesn’t make much sense b/c sticker says those who endorse
evolution are political outsiders but their views are being
taught
c. If case had gone to SC, this reasoning likely wouldn’t have been upheld
(b/c Kennedy is aligning with Scalia and Thomas 70% of the time.)

Front 15

Teacher HYPO: Teacher wanted to (1) correct errors in book; (2) bring in evidence of Cambrian explosion; and (3) summarize Beahy’s theory of biochemistry and how it is consistent with intelligent design. Can he do this?

Back 15

a. (1) No EC Problem; secular purpose of scientific accuracy
b. (2) No EC Problem; secular purpose of scientific accuracy
c. (3) No EC Problem; not religion but not science? Nothing in EC says you
can’t teach anything other than science in science class, so likely okay
1. Should be upheld if working within the Lemon Framework but could be career suicide if you go against the majority.
a. Case turns on whether or not school board is behind the teacher
1. Academic Freedom really doesn’t exist in elementary schools
2. If teacher goes his own way, his viewpoint may be restricted as this
would be considered government speech, not private speech

Front 16

Religious displays cases

1) County of Allegheny v. ACLU

Back 16

Facts: ACLU challenged constitutionality of crèche and separate menorah display
2. Hold:
a. Crèche violates EC as endorsement of Christianity (5-4);
b. Menorah does not violate EC (6-3).
c. Court relies on Lynch: “EC at very least prohibits govt. from appearing to
take position on questions of religious belief or from making adherence to
religion relevant in any way to person’s standing in political community”
d. Being amid secular objects seems to diminish the religious connotation of
Menorah (add a talking wishing well). The more busy and more crap you
have included, the more likely it is to be constitutional.
3. How they voted
a. Creche Unconstitutional, Menorah Constitutional: Blackmun & O'Connor
(medium separationists)
b. Both Unconstitutional: Stevens, Brennan & Marshall (strict separationists)
c. Both Constitutional: Kennedy, Scalia, Rehnquist & White (Kennedy is
usually the 5th vote.)
4. The idea that context matters.
a. Displays by themselves or with other secular displays
b. Paintings in a museum vs. paintings in a school
5. Consider neutrality between religion and non-religion
a. Only putting up secular displays would give the message to religion folk that they are outsiders.
6. O ’ Co n n o r’ s En d o rs e men t Te s t : If reasonable observer (very subjective SC in this
case) would view display as conveying message of endorsement, “message to
non-adherents of Christianity that they’re not full members of political
community, and corresponding message to Christians that they are favored.”
a. Structural Test (invalidates a lot of passive displays)
7. K e n n e d y ’ s Co erci o n Te s t : “government may not coerce anyone to support or participate in any religion or its exercise”
a. Liberty Test (would almost never invalidate a display b/c can always avert
your eyes)
8. Duncan says: Maybe the court should do this: Instead of focusing on the one particular day that the display is there, consider the entire year of displays. If there is a variety of displays that the government erects over the course of the year, then we look at it as an endorsement of our diverse community.
9. The Endorsement Test can go either way.
a. It is simply recognition of a holiday of a group of people in our community.
b. Or it isn't an endorsement because of all the context around it (plastic
Santas).
c. Or it is an endorsement because the state is saying we endorse Christmas
as the day when the savior of mankind is born, the reaosnable observer
sees it that way then it fails constitutionality

Front 17

Equal access cases
Equal access and neutrality do not violate the Establishment Clause

1) Widmar v. Vincent

Back 17

Facts: UMKC had equal access policy designating public forum where student groups could meet. A student group was denied permission to meet b/c group has religious purpose. UMKC said couldn’t be free speech b/c would violate the EC



Cons titutional Law II Page 7

2. Hold: Policy violates EC and Free Speech; at a public university there is no fear of mistaken endorsement. Equal Access is permitted.
3. Under Lemon:
a. Secular Purpose: equal access for diversity of ideas
b. Advance/Inhibit: all groups have same opportunities; neutral policy; no
endorsement b/c govt. doesn’t endorse everything it permits; to refrain
from censorship is not to endorse
c. Entanglement: check to see if student club, then can do whatever you
want (exclusionary policy=entanglement b/c have to ascertain purpose of group)

Front 18

Board of Education v. Mergens

Back 18

. Facts: High school wanted to start bible study. School said no because of feared
EC challenge that requires school to violate Equal Access Act (federal legislation)
2. Issue: Whether Congress violated EC with the Equal Access Act
3. Hold: No EC problem; case of private speech endorsing religion
a. “Th e re i s cru ci al d i s ti n cti o n b e tw ee n go v ern men t s p e ech e n d o rs in g
re l i gi o n ( p ro h ib ited ) an d p ri v ate s p e ech e n d o rs in g re l igio n ( p e rmi tted )”
b. Public schools generally have more a right to control speech b/c have right
to maintain order and not allow disruptive things (schools’ mission) as
compared to traditional public forums (parks/town squares, etc).

Front 19

Lamb’s Chapel v. Center Moriches Union Free School District

Back 19

(More of a Free Speech than EC Case)
1. Facts: Elementary school had public forum at nights for any artistic, educational, or charitable purpose permitted by the Equal Access Act. Local church wanted
to use auditorium to show Focus on the Family films (family values from
Christian perspective). School denied access because it was religious speech.
2. Hold: Unconstitutional; this is Viewpoint Discrimination from a religious
perspective. Government cannot partake in:
a. Content Discrimination: cannot speak on certain topics (sometimes permitted)
b. Viewpoint Discrimination: cannot address topics from certain viewpoints
(more protected than content discrimination)
3. Either triggers STRICT SCRUTINY under 1st Am. (even if non-public forum)
a. Cannot show compelling governmental interest and least restrictive means
b/c otherwise purpose of 1st Amendment will be distorted
4. There is no EC issue in this case because this speech is private speech, which the
EC does not forbid.

Front 20

Equal Access for Religious Speech v. Pinette

Back 20

. Facts: KKK wanted unattended religious display in Public Square (designated and
traditional public forum for free speech). State argues it’s prohibited by EC.
2. Hold: Unconstitutional; permitted by Free Speech (plurality opinion) . Religious
proselytizing and acts of worship are permitted under Free Speech Clause. EC
doesn’t require State to prohibit religious speech. This is a private act in a
traditional public forum
a. EC can trump Free Speech—but should be read as consistent provisions
(has ability to deny equal access).
3. Mistaken Endorsement?
a. Scalia: State must be neutral on religion and not responsible for
observer’s mistake
b. O ’ Co n n o r/ Bre y er/ S ou ter: focus on reasonable observer. But as long as
there is neutrality in fact, then that is all that the law requires.
c. Stevens: if any observer views it as endorsement, should be prohibited.
Strong presumption against unattended speech.
d. Disclaimers: Can solve a lot of problems and set aside mistaken



Cons titutional Law II Page 8

endorsement fears
4. There is no doubt that compliance with the EC is a state interest sufficiently
compelling to justify content-based restrictions on speech.

Front 21

Good News Club v. Milford Central School

Back 21

Facts: Elementary school opened up space to after school groups but policy excluded religious groups.
2. Issue: Are Free Speech rights violated by the policy? Is this viewpoint
restriction?
Assuming those rights are violated, is this justified by the EC?
3. Hold: Unconstitutional
a. Viewpoint discrimination b/c their secular purpose in teaching good moral character but school attempting to limit way in which group does it (non-religious)
b. EC does not justify this viewpoint discrimination. Content based
discrimination may be justified by EC (Pinette) but not viewpoint in this case (important dictum)
c. No mistaken endorsement because parents are the circuit breakers (had
to give permission for their children to attend). To not allow children to
attend might indicate hostility to religion. Argument cuts both ways.
4. EC does not require discrimination against private speakers in the public forum
5. Proselytizing argument between Scalia and Stevens
a. Scalia: Proselytizing is the same thing as persuading which is permitted and is good under the 1st Amendment (tolerance). The government shouldn't be deciding between what is allowed speech and what isn't. doesn't make the distinction that Stevens wants.
b. Stevens: There is a difference between religious speech protected by Free
Speech Clause and religious proselytizing is not protected

Front 22

City ordinance cases
Two categorical rules:

1) Barense v. City of Barrington

Back 22

Facts: City policy provided for snow removal services to religious organizations but not others. Public safety is a secular purpose but it advances religion as the service is selectively provided to religious organizations.
2. Hold:Government cannot confer a benefit on religion that is not available to
others similarly situated
a. Application of Lemon: advancing religion as these groups take step forward while everyone else stays behind

Front 23

Larkin v. Grendel’s Den

Back 23

Facts: City policy provides if you’re otherwise qualified for a liquor license, you
will be given it unless school or religious institution w/in 500 ft. objects.
2. Hold: Government may not delegate a governmental power (civil authority) to a
religious institution/organization.
a. Very rare but entanglement where religious organizations are making decisions that the government should be making.

Front 24

Westminster Presbyterian (Lincoln City Ordinance)

Back 24

City passed ordinance to protect prominent abortion doctor on board of directors when attending church from picketers and their signs
a. Violates Barense; preferential treatment only to religious organizations for
scheduled religious activities (violates advancement prong of Lemon)
i. Gives non-secular funeral protection but not secular funeral
b. Violates Gren d el’ s Den ; church can schedule religious activities forcing people who want to picket (1) to read newspapers to see if church has



Cons titutional Law II Page 9

vetoed your right to picket and (2) as picketer may have to read church signs that contain religious messages (church is making decisions)
2. Struck down on Free Speech grounds (didn’t get to EC issue)

Front 25

Ten Commandments cases

i. VanOrden v. Perry

Back 25

Facts: Did Ten Commandments display in front of TX State Capitol violate EC?
2. Hold: Plurality Opinion—constitutional (big winner)
a. Had display been struck down, ACLU would have filed suit in all 50 states and would have won on the precedent of this case.
b. This is government speech
3. re y e r’ s Co n cu rre n ce : (5th vote for majority)
a. Display has been there for 40 years showing display to be considered part of broader moral and historical message reflective of cultural heritage.
i. Grandfather Clause—non-principled way to get something done
i. Protects current and older displays
b. Breyer was likely aware of political ramifications and voted accordingly
i. Newer displays? —beware of factors in McCreary
i. Show a secular purpose, no religious personnel present, display other secular documents as well
4. Justice Thomas: Who was harmed by this action? All he had to do was avert his
eye b/c there is no substantial burden on any liberty interest here (advocating
coercion test—partial vs. total incorporation)

Front 26

McCreary County v. ACLU

Back 26

. Facts: Ten Commandments display in front Kentucky Courthouse was claimed unconstitutional. Pastor had prayed over it and was a self -proclaimed religious purpose to the display. It was later adjusted with a new secular purpose (to demonstrate history)
2. Hold: Unconstitutional; Legislators seemed vindictive in trying to hide true
purpose. Case turned upon their motives (very fact specific).
a. There was no secular purpose and a hidden religious purpose.

i.

ii.

The defendants argue for several different versions of the purpose test but the court rejects them.
Court looks at history of the display in determining its purpose.

b. Breyer had 5th vote but didn’t agree with majority. He essentially said
what he thought because didn’t think any of the court’s tests applied.

i.

3. cal i a’ s Di s s e n t :

Likely reflects his true view but voted with majority in
VanOrden b/c of political considerations involved.

a. Demonstrates religious uses throughout history.
b. Souter (writing majority) states: “EC mandates governmental neutrality
between religion and religion, and religion and non-religion.”
i. Scalia’s Response: Who says so?
1. Not the Constitution nor the history of this Nation
c. Argues Court has not applied the neutrality principle consistently
i. Duncan: If we are serious about neutrality, Ten Commandments should be able to be posted with all other signs and posters.
4. Souter: the law requires neutrality between religion and non -religion
5. This case may come out differently due to personnel changes on the Court


iii.

a.
Summun

Roberts and Alito would likely side with majority in VanOrden

Front 27

Summun

Back 27

Pioneer Park (or Park) is a 2.5 acre public park located in the Historic District of
Pleasant Grove City (or City) in Utah. The Park currently contains 15 permanent



Cons titutional Law II Page 10

displays, at least 11 of which were donated by private groups or individuals. These include an historic granary, a wishing well, the City's first fire station, a September 11 monument, and a Ten Commandments monument donated by the Fraternal Order of Eagles in 1971. Summun group wants to donate a monument that had the 7 amorphisms of Summun.
2. The court says that in this case, the government is engaging in government speech.
a. They see here that this is not a public forum for private speech. It is government speech so forum rules don't apply. The government can select its own messages. They can honor whoever they want to.

Front 28

The Welfare State

Back 28

All citizens must pay taxes so shouldn’t all citizens be eligible for an equal share of benefits
regardless of their religion?
i. If government will not allow you to use benefits for a religious purpose, some will be forced to choose between their religion and receiving the money to live. If tax rate is high enough, may result in religious persecution.
a. Example: $2,000 for non-kosher foods to a Jewish family
b. Law may be neutral but its impact on religion may be not neutral

ii.

Impact

1. In non-welfare state, there is no impact. No charities of any kind will receive any funding and therefore no choice must be made making everything neutral.
2. In welfare state, you have situations like the example above

Front 29

Indirect Funding Cases
i. Aguilar v. Felton and School District v. Ball

Back 29

. Facts: School District had policy to help all educationally and economically disadvantaged kids no matter where they attend school. Courses were available in public but not private schools. So teachers from public schools would go into private schools to teach. Action was challenged under EC.
2. Reasons these cases were found originally to be unconstitutional
a. We can't trust the teachers to go to the religious school campuses and not engage in religious indoctrination. They couldn't trust them to follow the curriculum.
b. Symbolic union between church and state. It is a partnership. It advances
religion and constitutes an endorsement of religion.
c. Any and all public aid is subsidizing religious schools because if they are
getting part of a free education, then the money that otherwise would
have went to paying to the religious schools would go toward other
religious activities.
3. Hold: Unconstitutional; having public teachers in private schools ran risk of
religious indoctrination and public school teacher’s presence on religious school
grounds created a symbolic “union of Church and State.”

Front 30

Zobrest v. Catalina Foothills School District

Back 30

. Facts: Federal and state laws gave disabled children opportunity to get education and overcome their disability no matter which school they attended. Deaf student at private school was given interpreter and challenged b/c risk of
‘excessive entanglement.’
2. Hold: Constitutional; Neutral program based on secular criteria (government
merely supporting charity and has no say on where money goes). No
proselytizing and interpreter has professional responsibility to not put in his
own viewpoints. Although transmitting religious information, hearing aid would do same thing.
a. Student could’ve gone to public school, but would be coerced choice



Cons titutional Law II Page 11

b. Neutrally provide benefits to a broad class of citizens without reference to religion is no problem. They are advancing aid to handicapped people, not religion.
c. No financial incentives for someone to go to a religious school or a secular school.
d. Teachers take an oath to give a neutral translation of what the academic
is. The translator will translate what the teacher says regardless of where
they are
e. The government is not choosing where the kid goes to school. It’s the
parent's free choice where the kid goes to school and where the
interpreter goes. So it is private choice, not government choice.

Front 31

Agostini v. Felton (continuation of Aguilar)

Back 31

Facts: To comply with Aguilar and Ball, private school spent $100 million complying by placing Winnebago on street in front of private school for classes. Action was again challenged under EC.
2. Hold: Constitutional; Ball and Aguilar were overruled. Court abandoned
presumption that public employees on religious grounds results in possible
indoctrination and symbolic union.
a. Neutrality + Indirection= No EC Problem
3. Collapsed Lemon into a Two-Prong Test (Purpose and Effects)
a. Consider excessive entanglement when looking at whether religion is being advanced or inhibited
4. S o u te r’ s Di s s e n t : This is direct aid to a religious school (unlike Zobrest and
Witters). If State didn’t provide this aid, the school would. Therefore, allowing
school to beef up their catechism classes.


iv.

a.
Witters

Counterargument: neutrality=everyone or no one

Front 32

Witters

Back 32

Facts: Can a college scholarship for the blind could be used at a religious institution? Witters wanted to attend a Christian Bible College to become a pastor
2. Hold: Constitutional; policy is neutral as a general aid program and there was
indirection on the part of the government. Meets test in Agostini.

Front 33

Mitchell v. Helms

Back 33

. Facts: Government program exists to help fund children’s education. Under program, state allocates on per capita (student) basis money used to purchase equipment which was distributed to any school. Does this direct aid violate EC?
2. Hold: Constitutional (Plurality Opinion)—O’Connor=5th vote. Secular materials
were being distributed on an evenhanded basis. There is both neutrality and
indirection=no religious indoctrination.
3. Direct vs. Indirect Aid
a. O’Connor’s Concurrence: distinction didn’t matter b/c no significant evidence policy advancing religion (Alito replaced O’Connor, so now may be a majority)

i.




ii.

Indirect aid is okay but direct is not. She believes there is a
difference between student receiving voucher and giving it to
school (true private choice) vs. school receiving voucher
directly.
Thomas argues economic consequences are same and this is
formal distinction with no real relevance

b. Souter’s Dissent: uses word neutrality like majority but with different meaning

i.
ii.

Majority: Neutrality=evenhanded aid
Dissent: Neutrality=treating everyone equally somehow
favors religion




Cons titutional Law II Page 12

4. The problem in this case is that the government is giving money directly to the school based on a per capita system. So the money goes to the school instead of the student and then the school.
5. O'Connor: brings up the idea of divertibility. She is concerned that, on an as - applied basis, the program might be found to be giving money directly to religion rather than secular needs for the religious schools.
6. Souter: What Souter is really calling for is a different rule than neutrality. He
wants a no-state-aid-to-religion rule. He is really a strict separationist.

Front 34

Zelman v. Simmons-Harris

Back 34

. Facts: Educational voucher program in Cleveland targeted at economically disadvantaged children. So if you meet income guidelines (neutral, secular criteria) you can stay at public school and get a tutor or attend a private school
2. Hold: Constitutional; Neutrality + Indirection= No EC Problem

a. b.

c. Direct Funding Cases

Agostini: Purpose and effects prong is used.
S o u te r’ s Di s s e n t : Program is skewed to provide incentive for religious

Front 35

Direct Funding Cases


schools b/c that’s where most of voucher money is going.

i. Tilton v. Richardson

Back 35

. Facts: Federal grants provided for construction of academic facilities but only those facilities used for non-sectarian instruction.
2. Hold: Constitutional; direct funding is permissible at a religious institution for
construction of secular facilities (i.e. heart surgery at St. Elizabeth’s)
3. Two things in this case
a. Only secular activities can be funded. (this is O'Connor. No divertibility)
b. Because of that rule, certain religious institutions can't be funded at all,
such as the "pervasively sectarian" schools. This means that religion at
these schools in so intertwined with everything else they do that it can't
be separated from secular activities. And since you can only fund secular
activities and that is all you can fund, then you can't fund them at all.

Front 36

Roemer v. Board of Public Works
Hunt v. McNair (building cafeteria for Baptist college)

Back 36

Rule of Law: No state aid shall go to institutions that are so pervasively sectarian that secular activities cannot be separated from sectarian ones. If secular activities can be separated out, they alone may be funded
a. Example: If a very Baptist college wants funds to build a dining hall, this
should be permissible. Everyone has to eat.
b. This test is no longer really the law. This ban on pervasively sectarian
schools violates Free Exercise by selecting certain religions over others
(very Baptist college vs. lukewarm Baptist college)

Front 37

Rosenberger v. Rector and Visitors of the University of Virginia

Back 37

. Facts: Students published newspaper called “Wide Awake” from Christian perspective. UVA refused to fund publication of newspaper but funded other student newspapers. UVA claimed exclusion necessary to avoid violating the EC.
a. Issue: Did UVA violate Free Speech Clause by discriminating against
religious publications?
i. UVA shouldn’t have conceded that if this was viewpoint
discrimination, they lose. Should’ve argued all other equal access cases were about facilities and this one was regarding funding.
2. Hold: Unconstitutional; this is Viewpoint Discrimination. Wide Awake
published on same topics as other papers (content) but not allowed to do so b/c
of their Christian perspective (viewpoint) putting it at a disadvantage.
Proselytize is ugly word for persuade (what First Amendment is all about)



Cons titutional Law II Page 13

a. Is this funding of government (funding) speech or the facilitation of private speech (forum)?
i. Not speech on behalf of UVA, this is private speech of students






ii.

1.
2.



Arguments

Govt. Speech permits viewpoint/content discrimination
Private Speech in Limited Public Forum—facilities
made available to students, making content/viewpoint
discrimination impermissible

i.



ii.

McConnell says that this money is a forum for speech and should be treated as a forum. Therefore, there is discrimination
Fries thinks that this is a funding issue and they can fund
whatever of their own speech that they want to.

b. Is this content based or viewpoint based discrimination?
i. Forums can be opened only on a particular topic
1. However if opened, must allow speech on that topic from any viewpoint presented

ii.

McConnell on viewpoint discrimination

1. "In my opinion, whether a restriction is viewpoint discriminatory [depends upon the answer to the following] realistic question: Are there any identifiable ideological groups of thought that are put at a disadvantage relative to their competitors? When religious speakers are excluded (even if 'religious' includes atheists), their perspective is put at a disadvantage vis-a-vis dozens of other competing worldviews. Thus, a person who thinks the welfare reform bill is bad because it is contrary to Marxist theory can get government money and proclaim his views, but the person who thinks it is bad because it is contrary to Christ's admonition to feed the poor cannot."

iii.
















iv.

What Duncan says, relating McConnell to the case: the subjects of
articles covered in Wide Awake --racism, crisis pregnancy,
homosexuality, eating disorders, movie and record reviews, etc.
These are all permissible subjects for student newspapers to write
about in the U Va forum. Wide Awake was excluded not because of the subjects it wrote upon, but because the viewpoint it addressed those subjects from "manifested a particular belief in or about a deity or ultimate reality." Because U Va did not wish to fund any religious viewpoint on any subject, Wide Awake was put at a disadvantage with most of its ideological competitors in the marketplace of ideas (with environmentalists, and feminists, and secular conservatives, and secular liberals, and GLBT newspapers, and socialists, and all other non-religious perspectives). Discrimination

i. Viewpoint—prohibited in any forum
1. Ask: Any identifiable ideological groups of thought put at disadvantage relative to their competitors?
2. UVA was hinging bets on the idea at the paper was a
religious activity because of proselytizing. Religious activity was manifesting a religious belief.

ii.

Content-Based—prohibited in certain types of forums;
permissible if preserves the purposes of the limited public




Cons titutional Law II Page 14

forum
v. S o u te r’ s Di s s e n t : believes the only people Christians compete with
are other people with religious or atheistic points of view.
Therefore, they are all being equally excluded and there is no
viewpoint discrimination.
i. He sees this as a discrimination of a class of viewpoints.

c. Does the EC provide a compelling justification for the violation of FS
rights?
i. Must pass Strict Scrutiny—no EC Problem

i. ii.

No difference between publishing newspaper for the students
and giving them money to go to Kinko’s
Strict scrutiny: compelling governmental interest, least
restrictive means

ii.

The court says that since the program is neutral in giving out the
forum, then it doesn't violate the EC.

i.
ii.

Neutrality + indirection
Applying Lemon, there is a secular purpose, no inhibition or
advancement, no entanglement




II.




Standing

iii.

Dissent (Ginsburg, Souter, Breyer, and Stevens) come back to problem of direct vs. indirect funding

Front 38

Standing

iii.

Dissent (Ginsburg, Souter, Breyer, and Stevens) come back to problem of direct vs. indirect funding

a. Elk Grove School District v. Newdow

Back 38

. Facts: Newdow (atheist) challenged constitutionality of his daughter saying Pledge of Allegiance everyday at school. He brought suit as “non-custodial parent” alleging recitation of the Pledge was concrete injury in fact (Article III standing). The injury was the school telling her that her father was wrong.
1. Court focuses on the fact that he is the non-custodial parent and therefore has
no standing to bring this case. The plaintiff has to be the one who is actually
harmed.
2. Newdow wanted the court to focus on EC tests: Lemon (advancing religion)

ii.

Hold: No Prudential Standing (very narrow view); court didn’t want to get involved in
issues of marriage and family (traditionally reserved for the States)

1. Political Decision: election year and if decided unconstitutional, court would
have been railed for being “activist.”
2. 4-4 Decision (likely would’ve been)
a. For Pledge: Kennedy, Rehnquist, O’Connor, Thomas (conservatives)
b. Against: Stevens, Ginsburg, Souter, Breyer (Liberals)
c. Scalia had to excuse himself b/c of speech he gave
i. Decision would’ve had no precedential value (affirm 9th Circuit
but wouldn’t have become law) b/c not 5 votes to overturn
3. If voted to overturn, would’ve received all heat w/o advantage of any precedent
4. Previous cases:
a. Court has already litigated this case in Barnette: you can't make the pledge compulsory
i. So under this precedent, she can not be made to say it if she doesn't
want to (coercion test).
b. You have the right to say it just as you have the right not to say
something. Wooley v. Maynard (license plate case)

iii.

Interestingly, if it were not an election year, most likely the pledge would be found to violate the EC.

1. Lemon: Purpose and effects test
2. Endorsement test (reasonable observer)
i. Thomas says that if we apply our precedents, then most likely the pledge



Cons titutional Law II Page 15



ii. iii.

violates the Endorsement test and would be unconstitutional. However, he would want the coercion test, so therefore it wouldn't violate.
Saying it v. looking at it: why argument of history under Van Orden
doesn't apply

Front 39

Denominational Equality

Back 39

The clearest command of the EC: Religious denomination cannot be officially preferred over
another.

Front 40

Larson v. Valente

Back 40

Facts: MN Statute regulated charitable solicitations. All charitable organizations had to comply but those that received more than half of their contributions from w/in their membership were exempt (regulated) and the rest were not.
Hold: Unconstitutional; one religious denomination cannot be preferred over
another (like Equal Protection—highly suspect classification triggers Strict Scrutiny)

1.
2.
b. Locke v. Davey

No compelling interest, so either regulate everyone or no one
Much religious discrimination today goes unrecognized

Front 41

Locke v. Davey

Back 41

. Facts: Student was awarded federal scholarship that could be used for any purpose but devotional theology (religious studies permissible b/c objective point of view). This is permitted by the EC but is there denominational discrimination taking place?








c. Blog

1. It is better to discriminate against more religious schools than fewer in order to
maintain denominational equality. The public-private line is likely the only one that can be justified.
2. Issue was not whether the Court could fund this program under EC but
whether it was required by FEC

Front 42

THE FREE EXERCISE CLAUSE

Back 42

“Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise
thereof.”

Front 43

Generally:

Back 43

Fact patterns we are looking for:

i.
ii.

Anytime law is requiring what religion forbids or vice versa
I am in engaged in some religiously-motivated conduct and the government says that
you can't do that (or the government tells you do something and your religion tells
you that you can't)

ii.

Madison:

i. Our religious believer is under two authorities: the general and Caesar.
1. Usually this is not a problem
2. But sometimes the general says no and Caesar says yes (or vice versa)
3. Usually you would obey the higher authority (God: General)

ii.

The Madisonian idea is the claims of God on me are earlier in time and higher in authority. God is the general, Ceasar is the captain. One nation under God. Therefore, free exercise wins

iii.

Cromwell’s England:

1. Belief vs. Conduct: free to believe but not free to exercise (conduct)
a. Justice Scalia is a modern Cromwell
2. If every citizen were allowed to make his/her religious beliefs superior to the law, our country would be in anarchy
a. Additionally if one person practices polygamy for secular reasons and another
for non-secular reasons, unfair to allow one to go unpunished b/c of religious
beliefs

iv.

To assert a claim:

i.
ii.

Burdened religious belief must be central to one’s religious beliefs
Burdened religious belief must be sincerely held

1. Doesn’t matter if this belief is not a tenet of the church you claim to be a
member of; Frazee
2. Constitution protects acts rooted in religious belief

iii.

Once a good faith belief is established, this should end the inquiry




B. Cases

1. No attempt should be made to determine whether or non-belief is true (Ballard v. United States)

Front 44

Reynolds v. United States

Back 44

Facts: Reynolds (Mormon) practiced polygamy in Utah (then a federal territory) and charged with federal crime. Reynolds claims his right to Free Exercise has been violated.
Hold: No Free Exercise Right; Laws CANNOT interfere with religious beliefs or
opinions but they CAN interfere with religious conduct

1. Is this still the law under Lawrence v. Texas ?
a. Court upheld sexual autonomy in this case. As long as government isn’t being asked to recognize plural marriages, seems consensual polygamous conduct should not be criminalized.
i. Very under-reasoned case so really are not sure
2. There is coercive effect to comply here because of threat of jail time or punishment. This is considered a substantial burden
3. There is no EC Problem
a. Government doesn’t violate EC by advancing/inhibiting religion by lifting a
burden that it placed there

iii.

This holding is counter-intuitive and is a misinterpretation of the clauses.

Front 45

Substantial burden cases:

Back 45

Substantial burdens trigger strict scrutiny. Until there is a substantial burden, there is no right to protection

Front 46

Sherbert v. Verner

Back 46

Facts: P (7th Day Adventist) was required by her employer to work on Saturdays (her Sabbath). She refused, was fired, and applied for unemployment benefits which were denied b/c she refused work.
Hold: Unconstitutional; religious conduct protected against substantial burdens on
Free Exercise rights (fundamental rights)

1. Burden: Like a tax being imposed for practicing her faith (withholding a benefit)
a. Being forced to choose between a benefit and her faith
b. Denial of benefits had a significant coercive effect and is akin to the
criminal punishment in Reynolds which constituted a substantial burden
c. Minor Burdens are okay
i. When it is a minor burden, we say avert your eyes.
2. Court applied strict scrutiny and no compelling interest here
a. Government does not expect you to be underemployed or outside of your
customary occupation (think Duncan working at McDonald’s)
3. The denial of benefits is a substantial burden. The law changes:
1. Reynolds: no protection for conduct (but this case gets rid of this precedent)
2. Sherbert: restriction on conduct gets under the FEC. Conduct is protected
unless the government has a compelling interest and there is no other less
intrusive way of doing it.
4. To justify a substantial burden, must be a compelling interest in conjunction
with least restrictive means (strict scrutiny)
a. Example: Hasidic Rabbi: There was a compelling interest in national security so need a picture of him without his beard. Solution was reached by shaving him in a “virtual photo” only
b. Any time there is a substantial burden on free exercise, the burden shifted
to the government to show a compelling interest and a lease constrictive
means of furthering that compelling interest.

Front 47

Wisconsin v. Yoder:

Back 47

Facts: State had compulsory education rule and Amish parents were charged with a crime for home schooling their children and teaching them vocational skills
b) Hold: Unconstitutional; substantial burden =strict scrutiny
i) Burden: stop practicing religious conduct or go to jail/lose your children

One.

There is NO substantial burden in having to avert your eye

1. i.e. gay pride display in a public park

ii)

The State does have a compelling interest in education and having self- reliant citizens

One.

But is not the Amish way a way of making educated, self -reliant
individuals? The Amish way is likely the least restrictive means of
obtaining the compelling governmental interest.

iii)

Later this case is seen as a hybrid case.

Front 48

Exceptions to substantial burdens
Lyng v. Northwestern Indian Cemetery Protective Association

Back 48

Facts: Native Americans objected to government putting a road through a national forest (government land) arguing the land was central to their religion.
Hold: Constitutional; no substantial burden

a) FrEx doesn’t apply to the government conducting its own internal affairs.



Cons titutional Law II Page 18

Government is simply going about its own business in way plaintiffs don’t like

i)
ii)

Don’t have to comport with the religious beliefs of particular citizens
People who attend churches on government property are very vulnerable

iii.

"For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government."

Front 49

Policy Decisions
v. Goldman v. Weinberger, Secretary of Defense

Back 49

) Facts: P (Jewish) wanted to wear a Yam Makah along with his military uniform and military refused. P sued.
2) Hold: Constitutional; as a member of military, P required to give up some free speech
and subsequently some Free Exercise rights
a) P should have won under strict scrutiny (skeptical approach) but court applied
more deferential approach (medium rare scrutiny).
i) As long as there is some reasonable reason, the court will exercise deference
b) Case decided more on policy: military is unique organization and important for
to be dressed alike (also separation of powers idea; executive branch function)
3) Congress later overruled this by changing the law

Front 50

Prisoners and Food

Back 50

) Facts: Inmate wanted kosher food on basis of his religion and was denied it. He sued.
2) Hold: Constitutional;
a) P should’ve won under strict scrutiny but court deferred to the prison officials
b) Again there were policy reasons in playà security of the prison

Front 51

Secular Purpose

1) Sunday Closing Laws

Back 51

Facts: P (7th day Adventist) challenges Sunday closing laws b/c now he can only be open 5 days/week claiming a substantial burden.
b) Hold: Constitutional; has the secular purpose of having a day off for everyone
a. There is an incidental effect on Saturday worshippers (like if students didn’t have Christmas day off from school, nobody would show up anyways)

One.

Not a coincidence but has been upheld under EC

b. The government is not burdening you by having Sunday be a closing day.
You can still practice your religion by being closed on Saturday too. IT is
not inhibiting your practice of your religion.

Front 52

Law Today
Employment Division v. Smith

Back 52

Facts: Smith and Black worked as drug counselors and were fired for using peyote as part of their Native American faith. They are denied unemployment benefits for employee misconduct and challenge under Sherbert (economic penalty being imposed on them in exchange for practicing their religion).Court says this case is different b/c they have violated a criminal law (against using controlled substances).
1. Issue: whether a generally applicable criminal law can be enforced against
religious exercise under FrEx
a. Both sides agreed this was a substantial burden triggering strict scrutiny

ii.

Hold: Constitutional; Scalia says, “We have never held a generally applicable law violates FrEx.”

1. New Rule: When a neutral law of general applicability is applied against
religiously motivated conduct, there is no Free Exercise argument.
a. If not neutral and generally applicable, strict scrutiny will be applied.
b. Scalia is worried Religious Liberty + Religious Pluralism = Anarchy



Cons titutional Law II Page 19

2. What about Yoder and Sherbert?
a. Yoder: HYBRID CASE
b. Sherbert: INDIVIDUALIZED EXEMPTION CASE
1. Subjective; ad-hoc determination

iii.

The general rule under the Free Exercise Clause comes from Smith: "The right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)."

1. Smith has changed the rule that protects a substantive liberty to a rule that
sounds in equality.
2. So long as the rule is generally applicable and neutral, it doesn't offend religious
liberty because it is equal.
3. But if the law is not neutral or generally applicable, then it is rendered under
strict scrutiny.
a. Compelling interest and least restrictive means.

iv.









v.

Then Lukumi comes along and states that the principle exception to that general rule: "A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny. To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance 'interests of the highest order' and must be narrowly tailored in pursuit of those interests....The compelling interest standard that we apply once a law fails to meet the Smith requirements is not 'watered down' but 'really means what it says.'" 508 U.S. at 546 (p.27 of handout)

Front 53

FOUR EXCEPTIONS TO THE RULE in SMITH

Back 53

1. Religious Belief Exception
a. FrEx protects any religious belief
b. Government may not:

i. ii. iii. iv.

compel affirmation or religious belief
punish expression of religious doctrines it believes false
impose special disabilities on basis of religious views/status
lend its power to other side in controversy over religious
authority

c. Not complete freedom of belief
i. Public Schools: mold common goals, attitudes, ideas, etc.
1. example: patriotism
2. New Yoder Exception: Hybrid Claims
a. Two Losing Claims = Winner (Hybrid: Strict Scrutiny)

i.

ii. iii.

Yoder: Losing Substantive Due Process Claim + Losing FrEx
Claim= Hybrid Claim (gets you to strict scrutiny)
This is a hybrid case: free exercise and parental rights.
Standing alone each of the rights would have lost. If you
satisfy both of them, then you have a winner.

b. Very Weak Option
i. Souter: trashes theory in his Lukumi concurrence arguing exception swallows the rule
3. New Sherbert Exception: Individualized Exemptions
a. Individualized Exemption: system in which case by case inquiries are routinely made giving rise to a subjective test (give consideration to surrounding circumstances)
1. Think Sherbert; must show “good cause” as to why you are unable
to work to receive unemployment benefits
a. Duncan turning down job at McDonald’s is okay because this is considered “beneath him”
2. To do otherwise allows people to say what is good and bad religion



Cons titutional Law II Page 20

a. Asset in Discovery Process (i.e. some Catholic girls are fine with abortions)
3. This rule is best understood as nothing more than a subset of the general applicability requirement that applies whenever government ahs put in place some kind of ad hoc exemption process
4. This is potentially a very significant exception because even if the
law or policy is generally applicable on its face, if the government
allows some process for requesting individualized exemptions or
waivers, strict scrutiny applies under Lukumi if the government refuses to grant a waiver or exemption for religious conduct.
5. Duncan says: "As I read Smith and Lukumi, the individualized-
assessment rule is best understood as a subset of the rule that
applies rigorous strict scrutiny to nonneutral or nongenerally
applicable laws. I believe that it is a categorical rule that classifies
individualized exemption processes marked by discretionary decision-making as per se not neutral and not of general application."
a. "[W]hen the transfigured Sherbert applies, there is no need to establish that the law is underinclusive to a substantial
degree. Instead, strict scrutiny will apply if the religious-liberty claimant establishes two things: (1) that the State has in place an individualized and discretionary process for allocating governmental benefits or burdens and (2) that his or her religious-liberty claim has been rejected under the ad hoc assessment system.
b. Discovery becomes important here to find out if there have been awarded any exemptions.
b. Rule: Cannot use individualized exemption process to burden FrEx

i.

ii.
iii.

Takes case out of Smith and away from generally applicable and neutral standards; see Lukumi
Triggers Strict Scrutiny
Sherbert survived as a case involving individualized
governmental assessment of claims for exemption and thus,
says Scalia, stands for the proposition that where the state
has in place a system of individual exemptions, it may not
refuse to extend that system to cases of religious hardship without a compelling reason.

4. Law that is not neutral or generally applicable
a. Then Lukumi comes along and states that the principle exception to that general rule: "A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny. To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance 'interests of the highest order' and must be narrowly tailored in pursuit of those interests....The compelling interest standard that we apply once a law fails to meet the Smith requirements is not 'watered down' but 'really means what it says.'" 508
U.S. at 546 (p.27 of handout)

Front 54

Lukumi v. City of Hialeah

Back 54

Facts: City passed law prohibiting animal sacrifices. You could kill animal for almost any reason except religious sacrifices, secular sacrificial killings, and cruel animal killings. City Council justified ordinance on basis of necessary vs. unnecessary killings Hold: Unconstitutional; violates Smith as a law not neutral nor generally applicable so subject to strict scrutiny




Cons titutional Law II Page 21

1. Neutrality:
a. Law doesn’t discriminate on its face (minimum requirement—not determinative)
b. No Religious Gerrymandering (regulating/prohibiting conduct for religious
reasons)
1. Prohibits subtle departures from neutrality/covert suppression of particular religious beliefs
2. Look for pattern of limited prohibitions and generous exemptions
i. Only thing law really covers is religious conduct
2. General Applicability:
a. FrEx protects religious observers against unequal treatment.

i.



ii.

Inequality results when Legislature decides interests government seeks to advance are worthy of being pursued only against conduct with religious motivation
Supposed Governmental Interests in Lukumi are both
underinclusive (don’t pass strict scrutiny)

1. Protecting public health
2. Preventing cruelty to animals

iii.

To be underinclusive: the question is, is the law underinclusive with regard to these purposes?

1. Generally applicable law with pattern of exceptions
2. Narrow prohibitions
b. Court says in this case: Respondent claims that Ordinances 87-40, 87-52, and 87-71 advance two interests: protecting the public health and preventing cruelty to animals. The ordinances are underinclusive for those ends. They fail to prohibit nonreligious conduct that endangers these interests in a similar or greater degree than Santeria sacrifice does. The under-inclusion is substantial, not inconsequential. Id. at 24
1. Under-inclusion renders it not generally applicable
i. When it is not generally applicable, strict scrutiny applies.
2. All laws are selective to some extent. All laws contain some type of exclusions or exemptions. But categories of selection are of paramount concern when they have the incidental effect of burdening religion.
c. Court doesn't define a boundary for what is and isn't generally applicable
because in this case, the law was so gerrymandered, it didn't matter
where the line was. The law would fall below general applicability.
3. Individualized Exemptions
a. Killings for religious reasons deemed unnecessary but almost every other killing falls outside of this prohibition

i.
ii.

Even use live rabbits to train greyhounds
Ordinance represents system of individualized governmental
assessment of reasons for the relevant conduct

Front 55

Axson-Flynn v. Johnson

Back 55

Facts: Girl (Mormon) enrolled in acting program at University of Utah and didn’t swear. She changed words in first play (no one noticed and she received an A). She told teacher and was told if she did it again, she’d receive an F. At end of semester, teacher says she’ll have to change or be asked to leave. She sues under FrEx Clause. Hold: SJ claim denied; colorable claim of FrEx (case settled out of court)
Analysis

1. Smith=substantial burden on religiously motivated conduct triggers strict scrutiny
2. New Smith=generally applicable and neutral law means no FrEx argument



Cons titutional Law II Page 22

3. Yoder=Losing Free Speech + Losing FrEx Claim=strict scrutiny
4. Sherbert=Individualized Exemption triggers strict scrutiny (exception granted to
Jewish student on Yom Kippur (shows ad-hoc, discretionary decisions)
a. HYPO: Catholic parents don’t want their student to attend mandatory safe
sex school assembly.
i. Smith—may not be neutral and generally applicable
1. Rule doesn’t apply to illnesses, sports/activity teams, etc for those not at school that day and those in the school speech pathology, nurse, etc.

ii.

Sherbert—parent should ask if process exists to request an
exemption.

1. If yes, school is admitting there is an individualized exemption process, triggering strict scrutiny

iii.

Smoking Gun—“good Mormons can do this…”

Front 56

Rader v. Johnston

Back 56

Facts: P was freshman at UNK and wanted to live in Christian Fellowship Hall even though all freshmen were required to live in the dorms to become acclimated to campus. His request is denied by UNK.
Hold: Unconstitutional; violates FrEx under Smith and Lukumi

1. Smith: generally applicable and neutral policy, triggers strict scrutiny when it is not generally applied. (doesn’t apply to married students, those living with their parents, students who are 19 or older (1/3 of freshman class)
2. Sherbert: individualized exemptions granted by Housing Director for
extraordinary circumstances (“I used to be a Baptist minister and there is
nothing non-Christian in the dorms.”)

Front 57

Locke v. Davey

Back 57

Facts: Davey was awarded Promise Scholarship for meeting religiously neutral criteria. He can attend any school in State of Washington and use it for any major except religious studies from a devotional theology (DT) perspective. He can pursue religious studies from non-DT perspective if he wishes
Hold: Constitutional; not a substantial burden (very narrow opinion—Rehnquist)

1. Seems similar to Sherbert
a. If you major in this, you lose your scholarship (economic tax)
i. Only affects small number of people
b. Rehnquist: not forced to choose; can still use his scholarship and can still major in DT (just not funded by govt); go to two colleges at same time; declare major late
1. Duncan doesn’t like Rehnquist's opinion in this case. Doesn't give a
whole lot of reason for his answer.
2. R says that it is not a forum case because it wasn't made to
encourage a diversity of views from private speakers. (WHY NOT?)
2. Law is both Underinclusive and Overinclusive
a. Under: some DT’s won’t become ministers; Over: some will change major
b. Davey could have gamed system by not choosing major until scholarship
had run out (2 years) or double majored but he chose not to do this
c. Could have used scholarship at Gonzaga (religious studies dept) but not at
Northwest College of the Bible (religious studies from DT perspective)
i. Denominational Discrimination (liberal theologians funded
while conservatives are not)—issue not argued in this case
3. “Play in the Joints”
a. Not everything permitted by EC is required by FrEx




iii.




Relitigating Davey

i. ii.

EC—scholarship okay b/c matter of true private choice
FrEx—is WA required to include this major in scholarship?




Cons titutional Law II Page 23

1. You could do it as a free speech clause case, talking about viewpoint discrimination.
2. Its not an EC case because of free choice
3. First advice: drop the major at first and pick it up later.
4. Bring it under the EC
a. It permits them to allow me to use my money to fund theology and they can't discriminate on denominational grounds.
b. One school says that their program is "Religious Studies" and it isn't called
"Devotional Theology." They just call it something different.
c. Another school: we don’t think our class is devotional. We study foreign
languages, etc.
d. There is no argument of entanglement because the state of Washington
lets each school decide for itself what is devotional theology.
5. But we can go to denominational discrimination
a. By not having a standard, they are ensuring that there is discrimination, because everyone's standard is different.
b. Hire Duncan and he can give you a really good persuasive argument that
your school isn't merely devotional.
c. The people who are more like Duncan get funded nad the ones that won't
self certify don't get funded. But it is based on the religious
interpretations of a legal standard.

Front 58

Colorado Case

Back 58

. Facts: Scholarship program prohibits use to attend a privately sectarian school (requires chapel attendance). You can’t attend this school even if you want to major in English (secular career).
a) Affects more people than Davey; can’t game the system

ii.

Seems this is Denominational Discrimination

a) Religious schools that organize themselves the “right way” get money but
others do not
b) Not a case of “play in the joints” but clauses being read together

iii.

McConnell's problems with the Colorado school

a) This is entanglement. This is one problem. In order to enforce their rules they have to get in there and get dirty. The state looked at the curriculum and looked at the syllabus.
1. The state has no business deciding who is teaching it better. This
has the primary effect of inhibiting religion. That goes to the effects
prong of Lemon/Agostini
b) Violates EC because of denominational discrimination. Some denominations get
funded where as other don't.
1. Schools are punished based on the intensity of their beliefs.

Front 59

Legislation
i. RFRA (Religious Freedom Restoration Act)

Back 59

Congress’ response to statutorily overrule Smith (unhappy); believed FrEx should be protected against generally applicable and neutral laws; wanted old Sherbert and Yoder

Front 60

City of Boerne v. Flores

Back 60

. Facts: Congress’ authority under RFRA is challenged.
2. Hold: Unconstitutional
a. FrEx is incorporated against the states under the 14th Amendment
b. Congress has the power to enforce the 14th Amendment BUT does not
have the power to re-write the 1st Amendment

iii.

Not all of RFRA was struck down: Federal RFRA still exists

1. Congress has power to regulate itself but cannot impose regulations on the states

Front 61

RLPA (Religious Liberty Protection Act)

Back 61

Goal was to take RFRA and tie it to Commerce Power in order to apply it to the states
i) Broke down b/c of the gay rights issue

Front 62

RLUIPA (Religious Land Use and Institutionalized Persons Act)

Back 62

i. Christian Legal Society took parts of RLPA that both sides agreed upon in order to enact RLUIPA
a) Land Use

i)
ii)

iii)

Very individualized and many minority churches get zoned out Prohibits land use regulations that substantially burden FrEx (triggers strict scrutiny)
Also prohibits religious discrimination

b) Institutionalized Persons

i)
ii)

Prisoner and Mental Institution Rights
Prohibits substantial burdens upon FrEx rights

1. Keep in mind—prison security is a compelling interest
i. Court likely will defer if this is the case
2. If sincere member of a religion, you will be accommodated

Front 63

Cutter v. Wilkinson

Back 63

. Facts: RLUIPA challenged b/c believed will give prisoners incentive to become religious for preferential treatment (i.e. I want a steak dinner). Are religious accommodations that are permissible under FrEx prohibited by EC (“play in the joints”)?
2. Hold: Facially constitutional; as-applied taken as they come along

i.

ii.

Congress did exactly what SC said they could do—enacted non-discriminatory religious exemptions (RLUIPA)
Didn’t have to pass law but did and doesn’t violate EC

1. Doesn’t advance religion but lessens restrictions put in
place by government for FrEx

iii.

Religious accommodations need not come packaged with benefits to secular entities (can’t always take care of your religious needs in prisons)

c) Jurisdictional Hooks (so it would be upheld)
i) Federal Money
1. Federal Prison RLUIPA

ii)

Interstate Commerce

1. Fair Housing Laws/State Housing Laws (in IC)

iii)

Any Restriction on Property resulting from Individualized Exemption
Policy

1. New Sherbert
2. Zoning Laws (ultimate individualized exception)

Front 64

THE FREE SPEECH CLAUSE

A. Forum determination

Back 64

The type of forum you are in determines the extent of your free speech rights

. Debate
i. Justice Holmes
1. Obey the government’s rules on government property or you can leave (same as
a private home
2. For the legislature, absolutely or conditionally to forbid public speaking in a
highway or public park is no more an infringement of the rights of a member of
the public than for the owner of a private home to forbid it in his house.
3. Its my place so its my rules. You don't like it, get out

ii.

Justice Roberts—WINNER of this debate

1. Public forums have been held in trust for the use of the public and traditionally have been reserved for purposes of assembly, communicating thoughts between citizens, and discussing public questions

ii.

Forum selection

i. Three kinds of government property
1. Traditional public forum:
i) public streets, sidewalks, public parks, town squares
2. Limited public forum:

i)

ii)

Property that the state has opened for expressive activity by part or all of the public.
Government property designated as a public forum; not required but
government is choosing to do so, so can talk about whatever you wish

1. Good News: elementary opened up space to groups after school
hours
2. Widmar: UMKC had equal access policy for student groups to meet

iii)

When forum opened, rules of traditional public forum apply

1. Government may close the forum at any time
2. Must be generally available to a class of speakers
3. Non-public forum:
i) Public Property but has not been opened as forum for speech
a. Example: Dean Willborn’s office

ii)

Some speech is still permitted



iii.

Forum analysis

i. Is this a traditional public forum?
1) Objective characteristics seems to be the test
2) If yes, then the rules are:
a) Is the restriction content neutral, or is it content based/viewpoint based?
i) If it is content based/viewpoint based, then strict scrutiny applies:
1. It must serve a compelling state interest and it must be narrowly drawn to achieve that end

ii)

If it is content neutral, then the government can enforce time, place
and manner restrictions

1. It must be content neutral
2. It must be narrowly tailored to serve a significant government
interest
3. It must leave open ample alternative channels of
communication
3) If the answer is no, then go to II

ii.

Is this a designated public forum?

1) Actually said that they are going to make it a forum
2) Yes: apply the same rules as in a traditional public forum above
3) If the answer is no, then…

iii.

The forum is a non-public forum

1) You apply these rules:



Cons titutional Law II Page 26

a) Is the exclusion viewpoint neutral
b) Is it reasonable in light of the purposes of the forum?

iv.

If you decide at any time that it is a viewpoint discrimination, then almost automatically the speaker wins.

1) The government must have a compelling reason to leave out that viewpoint, but
what could that reason possibly be?!?!
2) Some justices say that you don't even apply the compelling interest test. If it is
viewpoint discrimination the speaker wins. Period.
v. Content-Based vs. Content-Neutral
1) Content-Based—if aiming at communicative impact of expression (purpose)
a. Ex: no picketing about labor disputes
2) Content-Neutral—aiming at something other than communicative impact, even if it has the effect of burdening persuasion
a. Ex: No picketing in residential neighborhoods
b. If something is content neutral, then it doesn't matter what you are
saying.

Front 65

The Traditional public forum

i. Frisby v. Schulz

Back 65

1) Facts: Ordinance bans picketing outside of people’s homes (standing directly outside a targeted house), can still march up and down streets and sidewalks. Pro-life demonstrators were regularly protesting in front of this abortion doctor's house.
2) Hold: Constitutional; content-neutral and significant governmental interest in
residential privacy (considered a sanctuary); must keep moving through
neighborhood
1. Streets and Sidewalks are traditional public forums
a. Doesn’t cease b/c they travel through a residential neighborhood
b. Since it is content neutral, it is likely a time, place and manner
restriction, so has to be narrowly tailored to serve a significant
government interest and leave open ample alternative modes of
communication.
2. Point is to distribute message more generally and don’t target people’s
homes
3. Narrow Tailoring: statute is narrowly tailored if it targets and eliminates
no more than the exact source of evil it seeks to remedy
a. Possibility for as-applied challenges if, for example, homeowner runs business out of the home
3) B re n n an ’ s Di s s e n t : Content neutral but not narrowly tailored (prohibits lone
silent individual walking in front of a house)
4) Places that are protected from picketing sometimes can be seen as
gerrymandered to discriminate based on content and maybe even viewpoint.

Front 66

Madsen v. Women's Health Center, Inc. (Injunctions)

Back 66

1) Facts: Picketers were blocking entrances and driveway to abortion clinic. DC issued injunction aimed only at those engaging in the bad conduct but people still disobeyed it so another injunction issued for w/in 36 feet of the clinic (forced across street).
2) Hold: Constitutional; not aimed at pro-life speech but disobedient people under
injunction. Injunction applies to all defendants and those “acting in concert with
them”
1. Rehnquist says it is content-neutral; not aimed at speech but conduct



Cons titutional Law II Page 27

a. Therefore if Duncan goes to FL to protest, this should not apply to him. Injunctions only apply to a particular group of individuals (aimed at law breakers and not particular messages
b. However, so he will still be arrested (police don’t know); not just content but also viewpoint discrimination so would need to pass strict scrutiny
1. Must give some deference to trial judge but opposite of strict
scrutiny (not narrow tailoring)—Scalia argues this is
intermediate scrutiny
2. Narrowly tailored:
a. Court says that the buffer zone is fine: it burdens no more speech than necessary to accomplish the governmental interest at stake.
1. They give deference to the state courts familiar with the
dispute.
3. A significant interest?
a. Protecting woman's freedom to seek lawful medical or counseling services in connection with her pregnancy
b. Ensuring the public safety and order in promoting the free flow of
traffic on public streets and sidewalks
c. Protecting the property rights of all its citizens.
3) Scalia Dissent: “Abortion Distortion”
1. Ginsburg and Souter are both big free speech and abortion advocates
a. While they could normally be counted on for a free speech vote, in this case, they chose to support abortion rights
2. Scalia believes 36 ft is overbroad while 5-10 ft would be enough
4) HYPO: City ordinance prohibits focused picketing within 36 ft of any abortion clinic
1. Facially neutral but targets particular place so narrowly that may be
considered de facto viewpoint discrimination or a content-based
restriction
a. At minimum, strict scrutiny would be applied.

Front 67

Hill v. Colorado (Statutes)

Back 67

1) Facts: Statute—w/in 100 ft of the entrance to a health care facility, cannot come w/in 8 ft of any person w/o first getting their consent (no way to distribute handbills)
2) Hold: Constitutional; content-neutral (aiming at something other than
communicative impact) so back to neutral time, place, and manner
1. Content neutral because:
a. It is a regulation of place, not regulation of speech. b. No reference to content in the statute's language
c. State's interest are unrelated to the content of the demonstrator's
speech.
2. Significant interest:
a. Unimpeded access to health care facilities and the avoidance of potential trauma to patients associated with confrontational protests.
3. Narrowly tailored:
a. Duncan would say it isn't narrowly tailored because of multi - purpose buildings.
b. If it is not narrowly tailored, then strict scrutiny would apply. Then
you would have to show that there is a compelling governmental
interest
3) Kennedy and Scalia Dissent: this is content-based by its terms, categories it



Cons titutional Law II Page 28

employs, and conditions for its enforcement; there are oral messages not governed by the statute
1. State advancing two interests: (1) protect citizens’ rights to obtain medical care in non-obstructive way (compelling interest) and (2) citizen’s right to be left alone from unwanted speech (not compelling)
a. Not narrowly tailored (i.e. health care facility in large Wells Fargo
bldg.)
2. Scalia again believes this “abortion distortion”

Front 68

. Non-traditional Forum
i. Adderley v. Florida

Back 68

1) Facts: Non-disruptive students were protesting on jail grounds (not sidewalk).
They are asked to leave b/c jail policy prohibits this. Court says that this is not a
traditional public forum. They would have to move to the sidewalk.
1. Security is paramount.
2. So this case just talks about the designation of a public forum v. one that
is not a public forum.
2) Hold: Constitutional; nonpublic forum
1. State has right to reserve use of nonpublic property use for which it was lawfully dedicated. Reasonable rules will be imposed as long as they are viewpoint neutral
a. Justice Holmes wins this side of the debate
3) D o u gl as ’ Di s s e n t : as long as protest is peaceful it should be permitted; like protesting in front of the courthouse —housing political prisoners makes it an obvious place for protest

Front 69

International Society for Krishna Consciousness, Inc. v. Lee

Back 69

1) Facts: Krishna want to perform san kirtin (give away religious materials and solicit funds) in airport. Airport has regulations that prohibit these activities
2) Hold: Constitutional; nonpublic forum; applies a reasonableness test
1. Even though nonpublic, still cannot engage in viewpoint discrimination!
2. Re h n q u i s t’ s I n terp re tati on : Not a traditional public forum b/c
a. Public forums are ones where principal purpose is facilitating exchange of FS
i. Principal purpose of sidewalk is for walking (faulty reasoning)
b. Must be history and tradition of permitting use of these forum for
FS
i. No public forums than beyond what existed at time of
Framers
3. To be designated public forum, government must expressly designate it so. Designated public forums can not be created by inaction.
4. There is a 5-4 vote that strikes down the ban on literature and a 5-4 vote
upholding the prohibition of solicitation. The reason is that Kennedy is in
both of the majorities.
a. Ban on distribution is struck down because you can just avert your
eyes
b. But the solicitation includes fiddling through your wallet and the
added stress of possible fraud.
3) e n n e d y ’ s Co n cu rren ce: becomes the law in Forbes
1. No thought given to evolving technology; no new public forums unless government chooses to create one
a. Airport (govt owned space) is one of few public places left in society
2. Advocates an Objective Analysis
a. TEST: Public Forum if objective physical characteristics of property and actual public access and uses permitted by government



Cons titutional Law II Page 29

indicate expressive activity would be appropriate and compatible with those uses
b. The most important considerations in this analysis are whether the property shares physical similarities with more traditional public forums, whether the government has permitted or acquiesced in broad public access to the property, and whether expressive activity would tend to interfere in a significant way with the uses to which the government has as a factual matter dedicated the property.
c. The Court's error lies in its conclusion that the public forum status of public property depends on the government's defined purpose for the property, or on an explicit decision by the government to dedicate the property to expressive activity. In my view, the inquiry must be an objective one, based on the actual, physical characteristics and uses of the property. The fact that in our public forum cases we discuss and analyze these precise characteristics tends to support my position....
3. Krishna still lose b/c content-neutral restrictions on time, place, and manner
a. Also, 9/11 has added increased need for security
b. Kennedy says there is a compelling interest because the
government has an interest in staving off fraud and also the speedy
moving of people in the concourse. Solicitation is different because
you have to fiddle through your wallet, etc.

Front 70

Arkansas Educational Television Commission v. Forbes

Back 70

1) Facts: Public Television sponsoring congressional candidate debate for candidates with serious support. Forbes has less than 5% and loses every year. He wants to participate and PT refuses
2) Hold: Constitutional; nonpublic forum (restriction upheld if viewpoint neutral
and reasonable)
1. Kennedy says sometimes less is more: If all or nothing choice, debate may not have happened at all. By excluding some, First Amendment interests are being furthered
2. Kennedy analysis: What is the forum?
a. Designated vs. Non-public Fora
i. Under our precedents, the AETC debate was not a designated public forum. To create a forum of this type, the government must intend to make the property “generally available,” to a class of speakers. In Widmar, for example, a state university created a public forum for registered student groups by implementing a policy that expressly made its meeting facilities “generally open” to such groups. A designated public forum is not created when the government allows selective access for individual speakers rather than general access for a class of speakers.
1. General access for a class of speakers: designated public forum
2. Selective access: non-public forum.
3. The channel could have said that this is a designated
public forum for any candidate. But they said that this is
a selective thing, so it is a non-public forum.
a. So they only have to be reasonable.
3. Rule for non-public forums: the exclusion of a speaker from a nonpublic forum must not be based on the speaker's viewpoint and must otherwise



Cons titutional Law II Page 30

be reasonable in light of the purpose of the property.
3) Dissent: good candidate standard is too subjective. Does candidate not have
enough support or do we not like his message? Potential exists to mask
viewpoint discrimination
1. I am convinced, however, that... constitutional imperatives command that
access to political debates planned and managed by state-owned entities
be governed by preestablished, objective criteria. Requiring government
employees to set out objective criteria by which they choose which
candidates will benefit from the significant media exposure that results from state-sponsored political debates would alleviate some of the risk inherent in allowing government agencies-rather than private entities-to stage candidate debates.

Front 71

Free speech in the public schools
There is more of a balancing act in a school than in a traditional public forum.
i. Tinker v. Des Moines Independent Community School District

Back 71

i. Facts: Students who wanted to protest Vietnam War wore armbands to school. School anticipated this and passed policy prohibiting armbands at school (could argue this as content-based restriction but not done here)
1. If part of dress code, this would’ve been okay (but not in this situation)

ii.

Hold: Unconstitutional;

1. Test: So long as speech is not disruptive and doesn’t materially and substantially interfere with operations of the school, and without colliding with the rights of others, speech should not be restricted
2. Students and teachers don’t leave their constitutional rights at schoolhouse
gate
a. HOWEVER, if real risk of violence, may be a different situation
i. Must be real, factual, material basis for fearing disruption

iii.

J u s ti ce Bl ack ’ s Di s s e n t : armbands are disruptive and do interfere

1. However, we don’t want a Heckler’s Veto

Front 72

Bethel School District No. 403 v. Fraser

Back 72

i.



ii.

Facts: Student gave inappropriate speech in support of another student running for office at mandatory assembly. Assembly was being held to teach students about the political process (part of curriculum). Student was disciplined.
Hold: Constitutional; must consider the rights of other students as well

1. Central difference between Tinker and Fraser:
a. Personal Expression (as long as not disruptive) is permitted; Tinker
b. School Board has right to regulate the curriculum; Fraser
i. Teacher has right to regulate the classroom; Fraser
2. The court focuses on the fact that the speech is provocative
a. But the court could have just as easily said this is disruptive and therefore not protected under Tinker or, anticipate Hazelwood, and say that he was a member of teaching the curriculum and he made a mockery of that.
3. This is pre-Hazelwood: he was at a school -sponsored event, it was a non-public
forum and his speech disrupted the purpose of the forum
4. This is a very narrow holding, kept to its facts. Students first amendment rights
can be limited in light of the special characteristics of the school environment.

Front 73

Hazelwood School District v. Kuhlmeier

Back 73

i. Facts: Students sued after school refused to publish their articles about teen pregnancy and divorce in school newspaper (published as part of a curriculum journalism class).
1. Freedom of the Press: publishers ultimately decide content of paper (if this were
a public paper like NY Times)



Cons titutional Law II Page 31

ii.

Hold: Constitutional; nonpublic forum; part of curriculum and school has right to regulate it (for whatever reason)

1. Educators don’t offend First Amendment by exercising editorial control over style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns
a. First Amendment NOT raised unless no valid educational purpose present
b. However, remember that if the "legitimate pedagogical concern" is an EC
violation, this is not a legitimate concern and therefore the censorship
could be found unconstitutional.
c. The court says that there is a difference between school speech through
students and student expression
2. Hazelwood and Tinker:
a. The question whether the first amendment requires a school to tolerate particular student speech -- the question that we addressed in Tinker -- is different from the question whether the first amendment requires a school affirmatively to promote particular student speech. The former question addresses educators' ability to silence a student's personal expression that happens to occur on the school premises. The latter question concerns educators' authority over school-sponsored publications, theatrical productions and other expressive activities that students , parents and members of the public might reasonably perceive to bear the imprimatur of the school.
i. Educators are entitled to exercise greater control over this second form of student expression to assure that participants learn whatever lessons the activity is designed to teach.

Front 74

Hypo in Class: Monette Redford

Back 74

1. Facts: 4th grade girl gets together with friends at recess to pray. Her teachers say this is religious speech and there should be separation between church and state.
2. Hold: Unconstitutional; no EC problem and valid FS interest

i)
ii)

EC: private individuals have right to personal religious expression
FS: as long as she isn’t disruptive, this should align with Tinker

Front 75

On the blog: A.P. v. Tomah Area School District

Back 75

i.



ii.

Facts: Student drew picture with religious depictions in art class. Teacher prohibited pictures depicting “violence, blood, sexual connotations, or religious beliefs.” Student refused to remove religious part of picture and got a zero on the project. He sued. Hold: Not decided yet; case seems to align with Fraser and Hazelwood. However, there does not seem to be a legitimate pedagogical interest here

a) Do discovery by sending an email asking about the policy
b) EC doesn’t require censorship of this picture (pure private choice of student)
c) B/c demonic images are being permitted, seems policy is being applied in an
uneven-handed way; can allege viewpoint discrimination

Front 76

Morse v. Frederick

Back 76

i. ii.

Facts: Student had banner at Olympic Torch Relay that said “Bong Hits 4 Jesus.”
Student was suspended and sued claiming violation of Free Speech Rights.
Hold: Constitutional; although content based restriction in a public forum, rights
inside vs. outside public school not same (on field trip); therefore follows
Fraser/Hazelwood

a) Special characteristics of student environment and substantial governmental
interest in stopping illegal drug use allows schools to prohibit expression
advocating illegal drug use



Cons titutional Law II Page 32

b) Forum was the controlling factor: controlling disruptive speech at school
i. Person was seen as a student rather than as a citizen: therefore we are under Tinker, Hazelwood, Fraser, or some other new rule.
i. "the constitutional rights of students in public school are not
automatically coextensive with the rights of adults in other
settings."

ii.

What about Facebook pages? Restricting speech in public forum?

c) Student speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers, thus poses a particular challenge for school officials working to protect those entrusted to their care from the dangers of drug abuse.
i. Student speech celebrating illegal drug use in the presence of school
administrators is not protected.

iii.

Alito/Kennedy Concurrence: only joins to extent poster advocates illegal drug use and doesn’t support restriction to comment upon political/social issue (i.e. wisdom of war on drugs or marijuana for medicinal use)

a) “Legalize Bong Hits 4 Jesus”: likely would have been okay b/c poster would be
seen as if student was commenting upon a political/social issue

iv.

Thomas Concurrence: parents have delegated power to discipline their children to public schools, thus Free Speech in schools has no more application than it does in our homes

a) Wanted to overturn Tinker: Duncan thinks he is off base

i. ii. iii.

Taking an Originalist Perspective
Believes First Amendment doesn’t protect free speech in public schools
Parents really don’t have a choice to send their children to public schools

Front 77

School cases at a glance

Back 77

i. Tinker
a) A student's right to speak (even on controversial subjects such as war) in the cafeteria, the playing field, or "on the campus during the authorized hours" is protected so long as 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."

ii.

Fraser

a) Perhaps an ad hoc rule denying the right to engage in "profane" and "vulgar" speech
1. This is the "yuck" analysis
b) More likely a rule governing the school's right to determine "what manner of speech in the classroom or in school assembly is inappropriate" (student speech that is within the curriculum as opposed to personal speech)






iii.

1.
2.



Hazelwood

Duncan tends to link Fraser and Hazelwood case.
But you could alos say that Fraser undercuts Tinker because of the part
that says if the speech is in the classroom, then it is subject to
determination by the school.

a) "[E]ducators do not offend the First Amendment by exercising control over the style and content of student speech in school -sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns ."





iv.

1.
2.

Morse

Art class, journalism class, school play are illustrative examples.
If you can get them to say that they discriminated against the speech
because of the EC, that is not a legitimate concern under EC precedent.

a) Probably a narrow, ad hoc rule permitting educators "to restrict student expression [at a school event] that [the administrators] reasonably regard as



Cons titutional Law II Page 33

promoting illegal drug use."
b) Alito and Kennedy make clear that they join the opinion with the understanding
that "it provides no support for any restriction of speech that can plausibly be
interpreted as commenting on any political or social issue, including speech on
issues such as 'the wisdom of the war on drugs or of legalizing marijuana for
medicinal use.'"
1. You want students to be able to argue both sides of the issue so long as
you are not being disruptive or inhibiting other rights.
v. Forum Cases
a) Don't forget the forum cases, such as Widmar and Mergens. If a public school creates a forum for student speakers or student groups, forum rules apply and equal access is probably required in most cases.

Front 78

Board of Education v. Pico

Back 78

i.

ii.

Facts: Public school has some books in library that some consider offensive. School Board excludes them and parents sue claiming a violation under the First Amendment Hold: Unconstitutional (Plurality Opinion); cannot remove book from library simply because they dislike the ideas contained in them (content/viewpoint discrimination)

1. Right to Speak includes a “Right to Receive” (protects both willing speaker and
willing audience)
a. However, no substantial burden (public library, bookstore, Amazon.com) b. There is a right to receive: the first amendment rights of students may be directly and sharply implicated by the removal of books from the shelves
of a school library. We have held that in a variety of contexts, the constitution protects the right to receive information and ideas. This right is an inherent corollary of the rights of free speech and press.
c. Students have been deprived of the significant liberty of the right to
consume these books
i. The only liberty affected in the hecklers is their ability to avert their eye. This is a small burden compared to the burden on the receivers.
d. Right to receive is also implicated in nativity scene cases (under EC clause
and the coercion test)
2. School Board has a right to regulate the curriculum (mold children into “right -
thinking individuals”)
a. Have right not to purchase (no educational purpose to book) but NOT a
right remove the books(b/c interferes with right to receive)