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Sapere aude - dare to be wise
Wednesday, April 14, 2004
Posted 2:36 PM by Joshua Claybourn
The Tree and the Forest

As many of the law students reading this blog know, there was a "brown bag discussion" held today regarding the Christmas tree controversy that erupted last December. A Christmas tree was placed in the school's atrium and following the complaint of some faculty and students it was removed. The issue slowly snowballed into a city-wide issue that received national attention. If you are sick and tired of this subject, you have no obligation to read on. But I know that it interests many of this site's readers and the arguments offered today are worth repeating here.

Today Prof. Cooper graciously mentioned this site in his remarks in reference to his essay and Prof. Roisman's. For more discussion on this subject you can peruse the archives located on the right.

I hesitate to summarize the discussions in any way out of fear of marginalizing the remarks, but I will try to just a bit. Prof. Hill began by speaking in favor of the tree's placement in the atrium. He noted that this was not a Constitutional issue and that even if it was, it's not the most "interesting part of it all." He suggested that those opposed to the tree's placement is rooted in political and moral beliefs. The central part of Prof. Hill's comments, though, was that we have two possible roads to go down. The first is "maximal exclusion" which is mutually exclusive to all in an equal manner. This road, according to Prof. Hill, stifles diversity and gives others the impression that their identity does not matter.

The other road, which Prof. Hill argues is preferable, supports more speech, not less. We should promote collective expressions and give everyone a sense of community, he said. Moreover, he argued, an affront is not less significant because it is toward the majority. Prof. Hill ended with three points: 1) That maximal exclusion was the wrong route, 2) it was worse to take the tree down after first putting it up and 3) people who were aggrieved were unnecessarily told to be quiet.

Prof. Cooper then spoke in favor of the tree's removal. As noted above, a full essay of his thoughts can be found here. Prof. Cooper agreed with Prof. Hill on two points. First, that this is not a question of legality or Constitutionality. Second, that the placement and then removal was somewhat awkward. However, Prof. Cooper disagreed with Hill on several points. Although the courts have concluded that a "holiday" tree is secular, it is still a Christmas tree and Christmas is a Christian holiday. [Prof. Roisman later suggested that the objections over its removal would not have been so strong if it was not religious in some way.] He noted that it was no coincidence that one protest of the removal, which featured a tree on the back of a truck, also carried with it a saying reading "Happy Birthday Jesus." This is, to put it simply, exclusionary to some. Once you accept the notion that a tree can be exclusionary (and clearly it was to some), the question becomes what we should do about it.

Moving on to this analysis, Prof. Cooper grants that the "inclusionary" model proposed by Prof. Hill might work, but that in the end it would likely not. The law school atrium is not a public forum and allowing all religious symbols would be moving toward a broad religious discussion, not just a cultural one (the Menorah, for example, is strictly religious). Would this broad inclusionary approach be in place year round, since most religious holidays do not align with Christian ones? And what of atheists and agnostics--how and when are they to be included? Such a policy would be nearly impossible, he argued. Finally, Prof. Cooper explained that even including such items as the Menorah would not appease minority interests. Instead they might actually trivialize or offend them.

During the forum discussion period following these remarks, one student made a comment suggesting that the law school's social scene among students is segregationist and un-diversified. On that point I must firmly disagree. Perhaps this student's own circle of friends, or perhaps even his section, lacks this sort of diversity. But I know that from my large section of 1Ls this is simply not an issue at all. A varied body of different reigious, cultural, and racial students regularly come together to study and socialize. I don't think his comments were necessarily true for the entire school, as he suggested.

As seen in the
National Jurist
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