Rosenberger v. U. of Virginia
515 US 819 (Decided June 29, 1995)
In this significant decision, a divided Court (5-4) held that it was a violation of the First Amendment Speech Clause but not transgressory of the Establishment Clauses for a state entity (the University of Virginia) to refuse to fund the costs of a student Christian newspaper when the money to pay for that newspaper was derived from a mandatory student assessment of $14 per student/per semester.
In so holding, the Court relied heavily on the factual similarities and analysis in Lamb's Chapel (1993). According to the majority, the Speech Clause violation was the censoring of the Christian "viewpoint" on issues relating to "student news, information, opinion, entertainment, or academic communications," while the Establishment Clause was not violated because the printing costs were part of a neutral scheme of benefits that the University bestowed on more than 100 student groups. This case was the first Supreme Court case holding that it was permissible to give direct financial aid to an organization (and its press) that was avowedly religious in its operation, though the Court never used the language of "pervasively sectarian" to describe the student organization.
The Student Council at the U of VA authorizes funding of student organizations called Contracted Independent Organizations (CIO) through the Student Activities Fund. These CIOs must have a majority of its members as students and fulfill other procedural requirements, but they are considered independent of the U of VA. Of the more than 300 CIOs, about 115 received funding. There were 11 categories of student groups that can seek funding, one of which is "student news, information, opinion, entertainment or academic communications media groups."
World Awake Publications (WAP), established to "publish a magazine of philosophical and religious expression," qualified as a CIO but was denied funding because of another student policy denying funding to a "religious organization," that is an organization that "primarily promotes or manifests a particular belief in or about a deity or an ultimate reality." After administrative appeals were exhausted, suit was filed, but both the District and Appeals Courts sided with the University. The former held that there was no speech violation because the U of VA did not discriminate based on content or viewpoint, while the Circuit Court held that the practice constituted viewpoint discrimination but that the Establishment Clause trumped the Speech clause and was not violated because of the University's "compelling interest in maintaining strict separation of church and state."
Justice Kennedy, writing for the narrow majority, argued that the case providing most guidance was Lamb's Chapel, a 1993 case upholding the ability of a church to use public school property in nonschool hours for showing a film with a religious viewpoint on child rearing and family issues. In that case, the Court held that it was "viewpoint" discrimination to eliminate religious discussion of such an important issue when discussion of other points of view on family issues were permitted in other fora. That is, once a "limited public forum" is made open for discussion of an issue, the public entity may not restrict viewpoints to be heard. In this case, Justice Kennedy argued that since the U of VA permitted a variety of student groups to express their opinions through "student news," etc. (quoted above), then it was discrimination against the Christian "viewpoint" not to provide funds for the Christian publication.
However, in the Court's analysis of joint Speech/Establishment Clause claims, the questioned activity must survive inquiry under both clauses. Viewpoint discrimination it was not to fund such "Christian" speech, but would the funding of such speech violate the Establishment Clause because of its tendency to show that the U of VA was favoring a form of religious expression over others or religion over irreligion? The Court concluded that because benefits were neutrally made available to all kinds of student groups, one could not reasonably infer that special benefits flowed to Evangelical Christians above others. Neither the program's purpose or intent was to advance religion or aid a religous cause.
Perhaps a bit unconvinced by this argument, Justice O'Connor, concurring in the judgment, argued that what made the direct award of money to WAP (through paying the printing bills) constitutionally permissible were the various devices the University used to emphasize their non sponsorship of student activities (from the name of the organizations--CIO--to the requirement that on every page of every publication by a CIO there was a disclaimer regarding university endorsement).
Establishment Clause cases are so interesting because in each 5-4 case the dissenters accuse the majority of abandoning central principles of Establishment Clause jurisprudence. Because Justice Scalia was not writing in dissent here, however, the language is more muted. Nevertheless, it is earnest and pointed. After several quotations from the student publication showing its evangelistic purpose, the dissenters argued that this case transgressed Establishment Clause jurisprudence because it provided for direct financial aid to an organization that puts out an obviously sectarian newspaper. "Using public funds for the direct subsidization of preaching the word is categorically forbidden under the Establishment Clause, and if the Clause was meant to accomplish nothing else, it was meant to bar this use of public money." In so arguing, the dissent ranges far and wide throught the Establisment Clause cases, while the majority rested its analysis almost completely on Lamb's Chapel.
[In this regard it is interesting to note that Kiryas Joel, from 1994, rested almost its complete analysis on the Larkin case. If the Lemon test has not been overruled in word, perhaps its avoidance in these two significant 5-4 decisions suggests that its influence is waning.]
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