Drawing the line…
What exactly constitutes a violation of the first amendment? Does a student activities committee at a state school paying a “Christian” band to perform constitute a violation? Students at the University of Tennessee at Martin find themselves asking this question.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Although I am leery to state any opinion of this matter, this is what I come up with:
- The band’s label is Sony BMG and not an actual religion (if they were sponsored by the Southern Baptists I would agree that that this is a violation) and as such, despite being “Christian,” makes their performance protected as speech. However, I think that despite being protected it is certainly legitimate to question the decision, especially if there is a doubt as to the motives (i.e. is “Christian” evangelism a greater priority than entertainment?)
What say you? I know I’ve got some folks in the legal profession out there so clear up my muddled understanding with your years of experience!
October 24th, 2006 at 9:31 pm
I wish the reporter had contacted a law or government professor for a quote. The Supreme Court addressed a very similar issue in Rosenberger v. University of Virginia (1995) regarding the use of student fees for a religious student publication. The Court held, by a 5-4 vote, that the use was required by the free speech clause and not barred by the establishment clause.
October 27th, 2006 at 12:23 am
Fascinating comment, Rob. I’m glad you brought up that case. For those who didn’t read the full article, I am one of the philosophy majors at Martin who discussed Supreme Court case law in the campus-wide debate on the issue.
The Rosenberger v. Rectors and Visitors of the University of Viriginia (1995) case did indeed decide that it was unconstitutional for a university to not publish a religious newspaper if they published a secular one, because that unduly abridges the free speech of private citizens. However, in a more recent court decision — namely Santa Fe Independent School District v. Doe (2000) — it was decided that it is not protected speech for a private citizen to act on behalf of a public school using public school property (speakers, microphone, etc.).
The latter case forms the basis of our objection. Rosenberger would apply if the Baptist Collegiate Ministry had paid for the concert, but since public funds were spent (viz. the Student Activities Council) I believe that Santa Fe would dictate this to be unconstitutional, because they appear to be acting on behalf of the university. (There is a clear test for this — commonly called the Lemon test — which demonstrates this to be the case.)
I also do not believe that their being on Sony’s record label is a sufficient demonstration of their secular purpose. While their CDs may be marketed by Sony, their tour (of which UTM was a part) is sponsored by the International Missions Board, a branch of the Southern Baptist Convention. Of the fifty dates on the tour, more than forty were churches. Only two of the non-churches were not private (religious) universities. Both Sonicflood and the IMB declare their mission to be converting people to Christendom, and what’s more there was an open call for conversion (an “altar call”) in the middle of the concert.
If that’s not endorsement, then I’m not sure what is. (And from what I understand, a Professor of Law at Vanderbilt who specializes in the First Amendment agrees.)
October 27th, 2006 at 6:44 pm
Kevin,
You may be right. An explicit altar call is going to raise judicial eyebrows, however evangelistic the student publication was in Rosenberger.
Nevertheless, I think Rosenberger is probably a closer fit to this situation than Santa Fe, which dealt with high-school students (as opposed to adult college students) and the type of public prayer that the Court had previously found problematic at a high-school graduation. I don’t think the use of funds from the Student Activities Council distinguishes Rosenberger — wasn’t analogous funding the exact state action at issue in that case? Sante Fe distinguished Rosenberger on the grounds that the football pregame ceremony was not the type of forum open to the student body generally, but that doesn’t seem to suggest that the Court is backing away from Rosenberger. (If anything, defense counsel would probably argue that this language is implicitly a reaffirmation of Rosenberger.)
And is there any real likelihood of the average person concluding that a visiting band is acting on behalf of the university? I recall from my college days that student activities funds were used to bring in a wide-range of speakers, from a variety of political and religious perspectives, and I find it hard to imagine that many people seriously thought that the college administration endorsed all the (frequently opposed) views presented.
But I could be wrong. My sense is that the Lemon test often can be used to justify whatever result the judges wish to reach, and predicting these issues is somewhat uncertain. (I don’t think I could have anticipated Justice Breyer as the swing vote in the Ten Commandments cases, for example.) So you may be right, but I remain skeptical, and I think that Rosenberger seems an awfully close match to what I understand this fact pattern to be.
Best wishes,
Rob.
October 27th, 2006 at 10:38 pm
You probably have a better understanding of it than I. I was called upon to participate in a debate as a matter of philosophical interest. I did research the cases, but a knowledge of law is certainly not something I would consider an area of expertise (if an undergraduate can even have one of those).
To my mind — and this is largely hypothetical, as we are merely speculating on what a court or judge might rule — Santa Fe is not intended to partly reverse the decision in Rosenberger, but is more analagous to our case. When I first began to research the court opinions that I felt might be relevant to the matter, I felt that our case was very weak and that the case law didn’t support us. When I read the Santa Fe opinion, though, I changed my mind.
I do not believe that the impressionability of students (you mention that this affects adults) would play into this matter, because I believe it was also considered in Santa Fe to have affected adult participants (the parents of children attending the games). I also feel it necessary to point out the distinction here between what you may recall from your college days and what is going on here.
The SAC (Student Activities Council) is an organization of students that primarily provides entertainment to UTM using a budget comprised of the mandatory $25 Student Activities Fee that each of our almost 7,000 students pay. Usually, they go to various conferences and screen comedians and singers that they like, and invite them to campus based on how entertaining they think they are and how much they cost. SAC is not an organization known for bringing “diverse viewpoints” to campus; indeed, they don’t usually traffick in viewpoints at all. An organization analogous to what you are describing sounds to me more like our University Honors Program, which last year brought to campus the president of the ACLU, and has so far this year brought Louis Freeh (former FBI) and Jane Bryant Quinn.
Furthermore, SAC disengaged from its normal method of operations here. They had never seen nor heard of Sonicflood, but decided to bring them at the urging of James Orr, our SGA president who is also an ordained Baptist minister. James was asking on behalf of the BCM, who wanted Sonicflood to come but just couldn’t muster the $10,000 appearance fee. While there have been some arguments made to the contrary, I really don’t see the sequence “Sinbad, Carrot Top, Yin Yang Twins, Sonicflood” as a set of groups brought in by an organization concerned with campus diversity and meaning to represent opposing viewpoints. I see it as a set of entertainers with one oddball member, whose purpose is not just to entertain but to spread a religion.
The truly sad thing about all this is that a reasonable legal debate, such as the one you and I are having, is all that was sought at the Campus Crossfire. Largely, though, it descended into muck-slinging by our opponents who have ranged from outraged students accusing us of a double standard and pointing to our non-existent moral outrage against Christ, to bloggers from parts unknown ranting about the “God-hating liberals” in the UTM Philosophy Department.
October 31st, 2006 at 12:39 am
I serve as the Campus Minister for the BCM mentioned in Kevin’s comments. Kevin has given some good background to the issue. However, if you run the numbers, $175,000 is available for SAC events during a given year. The amount for SonicFlood was $10,000. If you do the math, that comes to 5.7% of the money used for SonicFlood. And if you multiply 7,000 students by 5.7% you come up with 399. I believe that I can be brave enough to say that here were at least 399 Christian students who approved of the concert and willing for their money to be used for such an event.
Let’s push the issue even further. What if each Christian student were to be counted. Since this is my 4th year at UTM, I can honestly say that the number of students who call themself Christian would range between 3,000 to 3,500. If this were the case, then each one of those students had $3 of their $25 student activities fee to pay for the concert. Anyway you look at it, there should be plenty of money to bring in a Christian event at least once a school year. It would accurately represent the Christian population of students.
On a lighter note, maybe next year we should shoot for requesting David Crowder Band!! I’m sure $87,500 would bring them in. (3,500 x $25).
Morgan Owen
BCM Director
UT-Martin