"Justice Kennedy and the Ideal of Equality," 28 Pac. L.J. 517 (1997)
We can see that content based discriminations--reserving Tuesday for a health care debate and Wednesday for a welfare reform debate--is in some contexts more permissible than viewpoint based discriminations. We can see that a working democracy requires not merely negative protection against state censorship, but also affirmative government action to promote free speech--to create the Town Hall or Assembly Room or other Public Forum where the freedom of speech can occur. ... Our public forum doctrine ought not to be a jurisprudence of categories rather than ideas, or convert what was once an analysis protective of expression into one which grants the government authority to restrict speech by fiat . . . .Public spaces and thoroughfares that are suitable for discourse may be public forums, whatever their historical pedigree and without concern for a precise classification of property. ... It must nurture the public forum. ... And this is a public forum about which Justice Kennedy has had a lot to say. ... The principal [also] chose the religious participant, here a rabbi [Third, via his guidelines and advice] the principal directed and controlled the content of the prayer. ... Even if affirmative action in other contexts (like contracting set-asides) is unconstitutional, might education be different, as a special public forum, permitting special sensitivity to "marginal voices," to use Justice Kennedy's own phrase? ...
Date of Authorship for this Version
Amar, Akhil Reed, "Justice Kennedy and the Ideal of Equality" (1997). Faculty Scholarship Series. Paper 942.