From: greeny@top.cis.syr.edu (J. S. Greenfield)
Subject: Re: Prayer at graduations
Organization: Syracuse University, CIS Dept.
Date: Sun, 26 Jul 92 23:59:47 EDT

In article <nate.384@psygate.psych.indiana.edu> nate@psygate.psych.indiana.edu (Nathan Engle) writes:

>>>>Furthermore, I would venture a guess that even non-administration 
>>>>graduation speakers would be free to speak of god or religion.
>
>>>    That would seem like a safe guess, but in at least one case it has
>>>been disproven.
>
>>When you say "case," do you mean a *court* case, or just an example.  It
>>sounds like you mean the latter.
>
>    That's right, the latter. I don't think it's made it to court yet.
>
>>  If so, then this sets absoultely no
>>precedent--it is just the misguided position of one school administration.
>
>    Absolutely. However, even if we both agree that the position of the 
>school is misguided, how do we go about changing it? What if the school 
>administration in question was the one in charge of the district in which 
>your son or daughter attends school. Are you going to say "Oh well, that's 
>okay. At least the unfairness in this district isn't indicative of the 
>system as a whole..."? 

Personally, I probably would not tolerate it.  Though, obviously it happens
because most people are either not interested at all, or not interested
enough to challenge it.


>    I think I can understand why there isn't much sympathy and understanding 
>from religious parents for that position. Basically, their rights (and those 
>of their children) are being violated, and I'm not sure what they can do 
>about it short of taking to the courts.

A lot can be done, actually.  You would be amazed what can be done simply by
having an informed individual (and I just mean someone like you or me)
discuss the matter with an appropriate administrator, in order to share
sincere concern and present an opposing position.  (And I mean in a non-
adversarial manner.)

Unless the administration has an ulterior motive (other than a simple
misunderstanding of the principles of court precedent), it is very likely
that such a discussion would be enough for them to check on the matter,
themselves, and make an appropriate policy change.

If, due to either ulterior motives or just a sincere disagreement over the
law, a mutually-agreeable resolution can not be established, you may have
to resort to formal legal action.


>>But, you see, the Court's position has been based upon the problem with
>>an *agent* of the school (and, thereby, of the state) promoting religion--
>>not private individuals promoting religion.
>
>    Yep, that's the court's position, and it's one which I agree with.
>
>>  The problem with school *agents*
>>doing it is that 1) they are explicitly prohibited from doing such by the
>>constitution, and 2) that there may be a coercive effect even in "voluntary"
>>participation programs.
>
>    Absolutely. So maybe what we really need is for the SC to come out with 
>a definition of what they mean by the term "school agent". I can't imagine 
>by the most outrageous stretch of my fertile imagination how they could 
>possibly include students as "agents" of the school.

I think it is abundantly clear that students can not normally be considered
to be agents of the school.  Here is a relevant excerpt from the UWM Post v.
Board of Regents University of Wisconsin System (E.D. Wisconsin, 1991)
decision:

"Since employees may act as their employer's agents, agency law may hold an
employer liable for its employees actions.  In contrast, agency theory would
generally not hold a school liable for its students' actions since students
normally are not agents of the school."

I believe the same basic principles apply to the question at hand.

I'm not sure that there is any real problem regarding the precedent as to
who is an agent and who is not.  The only real problem that I could forsee
right now would involve tricks used to get around the law.  For example,
consider a hypothetical case in which an administration invites a speaker
precisely (or at least in part) because they expect that speaker to mention
religion, even without being asked to do so.

This seems improper--but I don't know how such problems could be handled
other than on a case-by-case basis.  (That is, I don't know what precedent a
court could set, a priori, that could prevent such a situation.)


>However, even if 
>that's not what the SC intended, it's what some school administrators are 
>doing. I guess the only way to deal with it (assuming that talking with the
>offending administrators doesn't help) is to go after them in the courts.

As I mentioned above, there are other ways--though we certainly can't rule
out the need to take legal action.


>    I just don't fancy the idea of explaining to parents how their kids 
>won't be allowed to praise their gods until the completion of a class-action
>suit.

I don't fancy the idea either.  (And I speak as someone who has been forced
to resort to legal action over similar matters of principle, in the past.)
But it's one of those unfortunate facts of life.

Also, in a case such as this, even if you do have to resort to legal remedies,
it probably wouldn't quite as bad as you seem to expect.

For one thing, there are many avenues for legal remedies beside the courts.
A number of local, state, and federal agencies or executive offices might be
be available to assist in such a matter.  And if it were necessary to go
to court, it is unlikely that one would have to wait until the completion
of a class action lawsuit.

For one thing, a class action suit would not be necessary (and, therefore,
you can avoid any problems in certifying a class) as in matters of civil
liberties, it is sufficient to have an individual complaint.  Furthermore,
assuming that the position that you and I espouse holds merit, it seems
very likely that a lower court would be willing to issue an injunction to
prevent "censorship" by the school until the case gets resolved.


From a more pragmatic standpoint, there isn't much that the administration
can do to prevent a student speaker from saying whatever he or she chooses
during their speech (any more so than they could prevent someone from
arranging to sneeze...).  Unless the individual goes into a tirade on
religion, it seems very unlikely that administrators are going to create
a scene in the middle of the ceremony in order to physically remove a
student speaker...

(This is by no means intended to justify or minimize the administrator's
position--it's just to say that interested individuals can undertake to
inform students of such possibilities, should they be forced to wait
for some legal action to back up their position...)

-- 
J. S. Greenfield                                         greeny@top.cis.syr.edu
(I like to put 'greeny' here, 
but my d*mn system wants a 
*real* name!)                        "What's the difference between an orange?"
Newsgroups: alt.censorship