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Institution Harvard Law School Control Code TAKEHOME Extegrity Exam4 > 184.108.40.206
Course / Session Minow- Con Law-1st Amend Instructor NA Section . Page 1 of 12
Institution Harvard Law School Printed on February 26, 2009 Course Minow- Con Law-1st Amend Instructor NA Control Code TAKEHOME
Exam ID 10430
Word Count(s) Section 1 3520
because the government is the space's active manager. despite its location in a partly private-owned residential building. The "market rate" charge and "cleaning fees" appear reasonable and would probably be upheld like the fees in Murdock. meaning that so long as the forum is open. Bracketing the religious services prohibition for a moment. and the restriction on nonresident use in para. 1 seems reasonable due to the quasi-residential nature of the building. regulations on speech in the Room will receive intermediate scrutiny.-12-2* 10430-M. (Forsyth can be distinguished: the up to $1. which is not the case . though you will be permitted to impose reasonable limitations on the kind of speech taking place there.10.-12-2 10430 Course / Session Minow. There is also little chance that a court would decide the Room. the Mews Meeting Room is probably not a traditional public forum. (For the same reason. the regulations are also almost certainly state action. Due to the novelty of its public-private funding and residential-library locale.000 charge for a permit there was invalidated largely because it established a de facto heckler's veto. given the library's interest in order during business hours. 1. the restrictions relating to hours of usage appear permissible. nor a nonpublic forum like a government office building.10430 Institution Harvard Law School Control Code TAKEHOME Extegrity Exam4 > 8. A probable starting point would be public forum doctrine. As a result.Con Law-1st Amend Instructor NA Section .) A court is most likely to designate the Room as a nontraditional public forum. Page 2 of 12 __________________________________________________________________________________________ Answer-to-Question-_1_ Student ID: 90706675 I.17. The risks of your current policies and practices depend on what categories of 1st Amendment doctrine the court applies to your case. you will have to keep it open on an equal basis. Are your limitations reasonable? Lamb's Chapel suggests that nontraditional public forum limitations must be "reasonable in light of the purpose served by the forum" and viewpoint neutral. is a private space.2 *10430-M.
and para. The most difficult issue for the court will be the prohibition on religious services in para. Para.) Paragraph 1 raises a red flag by leaving the Room open to residents on Saturdays but not Sundays. The discretion granted to you in para. in the other paragraphs as well. 3 seems to suffer from this flaw. 3 establishes a permit system by requiring applicants to apply to you for permission to use the Room outside of certain hours. but see Sherbert. 3 provides no standards.17. A court might find an impermissible motive behind this distinction: perhaps it is meant to discourage Christians from using the room for non-service religious meetings before or after church? On the other hand. which invalidated restrictions on after-hours . Rosenberger established that a public university cannot discriminate between religious and non-religious publications in distributing student journal subsidies. striking down a state action based on Sunday-as-Sabbath).2 *10430-M. upholding Sunday business closure. It is possible that these cases could be distinguished based on the differences in function between a library and a public university. 2 (and as you have applied it. Page 3 of 12 __________________________________________________________________________________________ here. But permit systems have been invalidated for providing no clear standards to guide officials in granting permits (Kunz). edifying goals of libraries are so similar to those of universities. 3 raises the issue of prior restraints. once they have been opened for other expressive purposes.10.10430 Institution Harvard Law School Control Code TAKEHOME Extegrity Exam4 > 8. when uses conflict. Widmar established that public universities cannot exclude religious speech and even prayer from their facilities. and manner restrictions. The burden would be on you to show a compelling need for the discretion granted in para. 3. and to show that you are guided by clear and precise standards. Also. and para. since the speechpromoting. quasi-private aspect. Cox upheld the possibility of a constitutional permit system imposing time. 1 provides no guidance at all as to which residents may use the Room.3). see A/B p. and especially because of the Room's quasi-residential. But para. place.Con Law-1st Amend Instructor NA Section . But this seems unlikely. exceptional Sunday regulations have traditionally been upheld (Braunfeld.-12-3 10430 Course / Session Minow. the WidmarRosenberger line of cases includes Lamb's Chapel.-12-3* 10430-M.
Velazquez and NEA v. generally.10. It is possible that a reasonable observer might interpret a religious service as a kind of state "endorsement. The largely separationist Lemon test has been displaced by tests like coercion (Lee v. Weisman). But courts have gradually moved away from the strict separationist doctrine that would support this claim. There may be a question as to whether the prohibition on religious services is viewpoint discrimination or merely content discrimination (is it a prohibition on one kind of speech? or on a religious viewpoint?). even if they are located in partly private buildings. a prudential desire to avoid religious divisiveness (McCreary). It would be hard to argue that opening the Room to a religious service would "coerce" anyone. Walz). have generally concluded that the conduct of religious worship can be limited in a way that the mere expression of a religious viewpoint cannot. it may not discriminate based on religious content.A. and sometimes respect for religious historical traditions (Marsh. endorsement (Allegheny). as is clearly the case in your Room. outside of exceptions like schools during the schoolday. (Where apparently content-based restrictions in nontraditional public fora have been upheld. such as the subway in Shaker Heights.2 *10430-M. it can short-circuit all other analysis and lead to invalidation. that if a government program is designed to facilitate private speech and diverse viewpoints. such as Heffron. special circumstances were present--such as a "captive audience"--that are absent in this case. The governing rule now seems to be that once a state-managed forum is opened to expressive activity." though this raises the usual question of who a "reasonable observer" . suggests that viewpoint discrimination may be so disfavored.-12-4* 10430-M. it cannot discriminate based on viewpoint. Page 4 of 12 __________________________________________________________________________________________ uses of public school facilities by religious groups. Your best response against the charge of viewpoint discrimination would probably be to argue that the library imposes the religious services prohibition to avoid violating the Establishment Clause.-12-4 10430 Course / Session Minow. What applies to public schools and public universities outside of business hours probably applies to public libraries as well.17.Con Law-1st Amend Instructor NA Section . which might be analogized to a meeting room in a library.) R.10430 Institution Harvard Law School Control Code TAKEHOME Extegrity Exam4 > 8. Finley established.) Also. (Conrad makes the same point about a community theater. but cases that have dealt with this question.V.
but at least one (Startzell. 1) Even if allowing religious services had a secular purpose. this is a matter for the courts. and 3) it might lead to excessive entanglement if religious services took place regularly in a public library. and in any case. 3rd Cir. any questions regarding Dawkins and "group libel" or "fighting words" are a red herring. I would recommend that you allow . even though "religious services" is a somewhat vague term. if a court performed a "sector analysis" based on the library context.Con Law-1st Amend Instructor NA Section . but with an added complication: once a group has reserved the space.10.) 2. Neither has been upheld in a very long time (Beauharnais. Also. such as building community in a nondiscriminatory fashion. Also.) decided that the group with a permit receives preferential treatment in occupying the public space. Whether you may exclude religious services will be determined by the courts (see above).10430 Institution Harvard Law School Control Code TAKEHOME Extegrity Exam4 > 8.17. Page 5 of 12 __________________________________________________________________________________________ is. The Lemon test has never been overruled.2 *10430-M. unless the library decides to change its policies (as recommended below). and allowing religious services in the Room might fail the three-part Lemon test. it might conclude that your decision to exclude religious services from the Room is permissible by analogy to a library's discretion to purchase certain books rather than others.-12-5* 10430-M. But if a court upheld your regulations and found Peters' "prayer workshop" to be a pretext for a religious service. because it is less clear that Peters was applying to hold a religious service. you were not responsible for his speech.-12-5 10430 Course / Session Minow. Your denial here is more problematic than in (a). the "void for vagueness" doctrine is probably inapplicable because there is no question of punishment and adequate notice here. a) No need to take action. c) Your decision here raises many of the same issues as in the "religious services" prohibition. Chaplinsky). (Finally. 2) it could be interpreted as advancing religion through a kind of subsidy. we might still win. b) Again. what rights does it have to exclude other expression from the space? Courts have been split over the resolution of the "rivalrous uses" problem.
you might consider adding a provision limiting the amount of slots that a group can reserve in any given time-period. Conflict in the community would be reduced. you should ask them not to use the room without your permission. and suffer the slings and arrows of 1st Amendment litigation in defense of expanded speech. You might even want to lock the doors during those hours until this controversy cools off. 1 by including a reference to the sign-up sheet and the "first-come.10. One. sad way to defuse the conflict would be to close the Room altogether. (Have you confirmed that the parochial schools wished to send religious-themed pictures?) d) You are probably within your rights to continue to refuse requests to post messages from groups who have not used the Room.Con Law-1st Amend Instructor NA Section .17.2 *10430-M. The prayer group is clearly violating para. Assuming you never gave the residents permission to hold their meetings at 7-8a. 3. which requires groups to ask your permission and pay fees before using the room outside of the hours specified elsewhere.) e) This is the clearest case for action. But a religious group need only reserve the room for a non-service event in order to have its poster included among the others. which is always an option for nontraditional public fora. since this appears to be a content-neutral restriction." In case one group wants to reserve all the slots..-12-6 10430 Course / Session Minow. the first thing you should probably do is fix the easily corrected problems in the regulations. it seems clear that you are confronted with a growing feud between religious and atheist forces over control of the Mews Meeting Room. Reading between the lines.-12-6* 10430-M. (If a group tries to circumvent this by establishing a . 3. but so would the total quantity of speech.10430 Institution Harvard Law School Control Code TAKEHOME Extegrity Exam4 > 8. you should clarify the procedure for reserving the room in para. Page 6 of 12 __________________________________________________________________________________________ groups to hang or remove items from the walls as they see fit during the times when they occupy the Room. first-served basis. Assuming you wish to maintain the forum. They should also be allowed to exclude others from the Room.m. Because unclear rules breed conflict and litigation. (There might be some indirect content-discrimination here as a result of the prohibition on religious services.
You may also have to allow a mechanism for prompt appeal. It seems unlikely. and not only 2. to avoid prior restraint issues. based on the general trend (described in #1) of courts moving away from strict separationism. Page 7 of 12 __________________________________________________________________________________________ number of fake "front groups. 3. The partially residential and private aspect of the building argue in favor of greater deference to the decisions of local administrators. since this appears to be how you are applying the regulations. Locke v. Also. following Breyer in McCreary.-12-7* 10430-M. since no one is forced to be there and the government is "endorsing" all meetings equally. if the aim of the 1st Amendment is to avoid . it is doubtful that allowing religious services in a government-managed building constitutes "entanglement.-12-7 10430 Course / Session Minow. As noted above." So the Religion Clauses probably permit you to allow religious services in the Room. that allowing religious services to be held in the Room would constitute an Establishment Clause violation. you should establish clear. suggests that a court would probably require you to allow religious services in the Room. especially Widmar. Davey). It seems difficult to distinguish in any truly principled way a group of people wishing to pray in a room at a public university (Widmar) from a group of people wishing to pray in a public library meeting room (our case).2 *10430-M. permissible contentneutral standards to guide your discretion. such as not granting permits to activities that might damage the Room or cause a danger or nuisance to the residents. perhaps based on a lottery.) With regard to the permit system in para. But the general direction of recent opinions.17. you might want to clarify that the religious service prohibition applies to all the paragraphs. The most difficult question is of course whether to abandon the "religious services" prohibition altogether. Does they require you to allow them? The Court has declared that there should be "play at the joints" between the free exercise and establishment clauses (Walz. Courts may be especially tempted to adopt this approach given the unique circumstances of our case." you might be forced to revise the policies again and create a permit system for all uses of the room. Finally. Even under the Lemon test.Con Law-1st Amend Instructor NA Section .10430 Institution Harvard Law School Control Code TAKEHOME Extegrity Exam4 > 8.10. it is hard to see such services as a form of coercion or endorsement.
17. the Principal calls her out in the hallway and says she would be violating the Constitution if she uttered those words in front of the students. Wasn't the exercise supposed to be about . The only remaining disruption will be some residents' knowledge that a religious service is taking place in their building. suggests precisely the kind of viewpoint-based distortion of the marketplace of ideas.10.10430 Institution Harvard Law School Control Code TAKEHOME Extegrity Exam4 > 8. II. I would advise that you attempt to avoid this constitutional showdown altogether by lifting the prohibition on religious services. they can easily be restricted under nontraditional forum doctrine.2 *10430-M. removing the prohibition on religious services would probably serve that end. they should perhaps move to a building that is not partly owned by the government and is thus free from First Amendment protections. She can read from a children's book about Hanukkah or Halloween. What are the costs of doing so? If the services in any way disrupt the operation of the library or the residential building.-12-8 10430 Course / Session Minow. If they find this intolerable. the fact that Dawkins was allowed to use the Room for a sort of "sermon" against religion but Peters was not allowed to use the room for an ostensibly proreligious presentation. "The War on Kindergartners. that has probably motivated the Court's movement away from separationism. Finally. and because the school happens to be a public school. I know what you're thinking: this is one more example of the atheist elites and the teachers' unions declaring open season on Christianity. Page 8 of 12 __________________________________________________________________________________________ unproductive divisiveness around religion. a government even entangled in a private residence-strict separation may indeed entail a kind of inhibition of religion that goes beyond mere neutrality.-12-8* 10430-M. A kindergartner wants his mom to read a few lines from his favorite book for show and tell. We've been hearing about it for months. With our vastly expanded government-in this case. or imposition of orthodoxy. but she can't read a few simple lines from the Psalms.Con Law-1st Amend Instructor NA Section . But because those lines happen to be in a book called the Bible." an editorial for The O'Reilly Factor You all know the facts of the Donna and Wesley Busch case.
and soon children won't be allowed to wear crosses outside of their clothing? And how hard would it have been to turn this into a teachable moment. Consider the tooth fairy. Someone who will believe this. Kindergartners are not informed buyers in the marketplace of ideas. Even ordinary absolutes.17. Page 9 of 12 __________________________________________________________________________________________ appreciating differences? What kind of harm could result from a handful of kids hearing a fiveline poem they probably won't understand. literally (literally!). According to the idea of sector-analysis.2 *10430-M. A regulation that might be impermissible in a high school might be permissible in a prison or the military. And the reason is sector-analysis.Con Law-1st Amend Instructor NA Section . or . such as the ban on viewpoint discrimination. especially without a parent's informed and written consent. if it makes young Wesley happy? Are we turning into France.-12-9 10430 Course / Session Minow. Take.10430 Institution Harvard Law School Control Code TAKEHOME Extegrity Exam4 > 8. whether based on notions of self-realization. the marketplace of ideas. historically entrenched contexts in American society. They will believe anything.10. and allow Wesley and the other children to discuss the Psalms as a cultural tradition? This is what we're all thinking. But we're wrong. Or take the "autonomy" justification. This is a case about a public kindergarten classroom. In an important sense. the protections of the 1st Amendment shift according to context. while a regulation that might be impermissible in a public university might still be permissible in a high school. simply does not have many tools to contribute in the search for truth. Not only do parents entrust their children to public kindergartens with the understanding that nothing even remotely approaching religious indoctrination will take place there. jimmying the windows of children's bedrooms in a quest for discarded baby teeth. for example. disruptive.-12-9* 10430-M. must waver before the peculiarity of this very sensitive forum. but virtually all of the traditional purposes of free speech are absent in the kindergarten context. The state's ability to regulate speech in order to avoid potentially controversial. They will buy the idea that a troop of winged fairies circulate at night. or offensive speech must be at its zenith in a kindergarten classroom. the case begins and ends with that fact. and in particular with regard to a few very special.
From the moment they rise to the moment they sleep. kindergartners hardly even have any rights to check. The safety valve justification of the 1st Amendment is equally inappropriate to kindergartners. To defer to a five year-old's choice regarding how he should be taught or what should happen in a classroom would be like deferring to the direction of the wind.17. Sometimes they behave like human beings. and including any naps in the middle. Page 10 of 12 __________________________________________________________________________________________ based on the ideal of participatory democracy. While Tinker may be right that students do not check their rights at the schoolhouse gate. With regard to the self-governance dimension of the 1st Amendment. secure self-governance in the long term. As tempting as it might be to . or monkeys. so in the case of the kindergarten classroom. Do they even have free will.-12-10* 10430-M. it is premised on the idea that they are not already at this point. If they do not. they can then use the 1st Amendment as adults to change things. at other times like cats. (Douglas' dissent in Yoder objects to this state of affairs. forces that to them must seem largely arbitrary. The very premise of "autonomy" in kindergartners is doubtful.10. The only underlying purpose of the 1st Amendment that has a meaningful place in the kindergarten classroom is the goal of cultivating tolerance.2 *10430-M. and our concern for the autonomy of kindergartners should be lessened accordingly. but it remains the case. Kindergarten is premised on the idea of shaping children so that they will one day be capable of inheriting the rights and responsibilities of citizens in a democracy.-12-10 10430 Course / Session Minow. Our concern for the autonomy of monkeys is extremely limited. their lives are determined almost entirely by forces outside of their will. The only safety valve they need is already provided by biology: they will grow out of it. beyond wanting to eat cookies? In my experience. not only are kindergartners years away from voting.10430 Institution Harvard Law School Control Code TAKEHOME Extegrity Exam4 > 8. we assume that restrictions on self-governance are necessary in the short term to preserve our nation's competent. five and six year-olds are like half-animals.Con Law-1st Amend Instructor NA Section . As in the case of a military boot camp.) Their rights are little more than penumbras and emanations of the rights of their parents. In other words. but they can hardly govern their own feet. But the best means of encouraging tolerance must be left to the determination of school administrators.
10.498 . the argument misses the point.2 *10430-M.-12-11 10430 Course / Session Minow.10430 Institution Harvard Law School Control Code TAKEHOME Extegrity Exam4 > 8. by disturbing the majoritarian process that led to the appointment of the school's administrators and their policy decisions? Should Donna Busch receive the court's countermajoritarian weight to defend her right to enter a public kindergarten classroom and read prayers to a class of strangers' children. Page 11 of 12 __________________________________________________________________________________________ argue that the teacher or principal in Busch's case should have turned the awkward moment into a moment for learning. quickest way out. It is a case about what the Constitution requires. standing up for. Total word count = 3. it is the party who had no control over the situation as it unfolded. and yet has no standing in the case: the silent parents of the children in the classroom. If anyone needs the court's protection in this case. Given the administrative difficulties of allowing judicial intervention in cases like Busch's.Con Law-1st Amend Instructor NA Section . a teacher should not be second-guessed for taking the easiest. highly fact-sensitive threatened breach of religion into the classroom respond with grace and wisdom. even if this means adopting a more or less hypoallergenic approach that the courts have abandoned in other sectors. the party who will probably be most affected by the court's decision. Especially given the history of apparently per se rules against the reading of religious texts in public school classrooms. complex.17. ideally encouraging the assignment's goals of tolerance and diversity. without their consent? Does Wesley Busch require the court's intervention to defend his right to see his mother do so? Clearly not. This is not a case about what it would have been ideal for a teacher to do. a final question might be asked: why on earth should a court intervene here? Who would the court be protecting. and the lack of theoretical justification for defending almost any right to free speech in a kindergarten classroom.-12-11* 10430-M. And the Constitution does not require that every teacher in every unexpected.
10.Con Law-1st Amend Instructor NA Section .10430 Institution Harvard Law School Control Code TAKEHOME Extegrity Exam4 > 8.-12-12 10430 Course / Session Minow.2 *10430-M.-12-12* 10430-M. Page 12 of 12 __________________________________________________________________________________________ .17.
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