Rosenberger v. University of Virginia

SCOTUSCase
Litigants=Rosenberger v. University of Virginia
ArgueDate=March 1
ArgueYear=1995
DecideDate=June 29
DecideYear=1995
FullName=Ronald W. Rosenberger, et al., Petitioners v. Rector and Visitors of the University of Virginia, et al.
USVol=515
USPage=819
Citation=115 S. Ct. 2510; 132 L. Ed. 2d 700; 1995 U.S. LEXIS 4461; 63 U.S.L.W. 4702; 95 Cal. Daily Op. Service 5005; 95 Daily Journal DAR 8512; 9 Fla. L. Weekly Fed. S 272
Prior=Summary judgment entered for the University by the United States District Court for the Western District of Virginia, 795 F. Supp. 175 (W.D. Va. 1992); affirmed, 18 F.3d 269 (4th Cir. 1994); cert. granted, 513 U.S. 959 (1994).
Subsequent=
Holding=The University's denying funds available to other student publications, but not to a publication produced from a religious viewpoint, violates the First Amendment's guarantee of free speech. The University's assertion that the exclusion was necessary to avoid violating the Establishment Clause lacked merit because the funds were apportioned neutrally to any group meeting certain criteria that requested the funds.
SCOTUS=1994-2005
Majority=Kennedy
JoinMajority=Rehnquist, O'Connor, Scalia, Thomas
Concurrence=O'Connor
Concurrence2=Thomas
Dissent=Souter
JoinDissent=Stevens, Ginsburg, Breyer
LawsApplied=U.S. Const. amend. I

"Rosenberger v. Rector and Visitors of the University of Virginia", ussc|515|819|1995, considered whether a state-run university may, consistent with the First Amendment, withhold funds from student publications with a religious perspective that the university provides to other student publications. The University made these funds available to all student groups that met certain criteria, which the student publication involved in this case satisfied. The University claimed that the exclusion was necessary to avoid violating the Establishment Clause. The Supreme Court disagreed.

Noted constitutional law scholar Michael W. McConnell argued on behalf of the student publication, and John Calvin Jeffries argued on behalf of the University.

Facts

In order to fund the activities of its student groups, the University of Virginia (UVA) collects an activities fee from its students each semester. Some registered student groups, including "student news, information, opinion, entertainment, or academic communications media groups", may use this money to pay some of their expenses. Other student activities, however, are not eligible to use this money to pay their expenses; these include "religious activities, philanthropic activities, political activities, activities that would jeopardize the University's tax-exempt status, those which involve payment of honoraria or similar fees, or social or entertainment related expenses". A "religious activity" is one that "primarily promotes or manifests a particular belief in or about a deity or an ultimate reality". The money is not given directly to the groups. Instead, the groups apply to the fund administrator for reimbursement of third-party expenses.

The plaintiff in this case, and the petitioner before the Supreme Court, was a UVA student publication called "Wide Awake", formed by Ronald Rosenberger and other undergraduate students in 1990. "Wide Awake" was established to "publish a magazine of philosophical and religious expression", to "facilitate discussion which fosters an atmosphere or sensitivity to and tolerance of Christian viewpoints", and to "provide a unifying focus for Christians of multicultural backgrounds". Beginning with its first issue, "Wide Awake" published articles on racism, crisis pregnancy, homosexuality, prayer, C.S. Lewis, eating disorders, and interviews with UVA faculty members. "Wide Awake" became a registered student organization eligible for funding from the student activities fund, and then sought nearly $6,000 for printing costs. This request was denied by the fund administrator because "Wide Awake" was deemed a "religious activity" since it "promoted or manifested a particular belief in or about a deity or an ultimate reality". "Wide Awake" appealed this denial within the University, and ultimately the denial was approved by the dean of students.

Having no further resource within the university, "Wide Awake" and Rosenberger contacted the Center for Individual Rights which filed suit against UVA under 42 U.S.C. § 1983 in the United States District Court for the Western District of Virginia. The district court granted summary judgment to the university, ruling that denying student activities funding to "Wide Awake" was neither unconstitutional content-based nor unconstitutional viewpoint discrimination, and that the university's interest in avoiding violating the Establishment Clause justified not subsidising the group's printing costs. The district court did not conclusively rule on the related question of whether subsidising the group's printing costs would, in fact, violate the Establishment Clause. "Wide Awake" appealed to the Fourth Circuit. The Fourth Circuit ruled that the university had engaged in unconstitutional viewpoint discrimination, but that it would affirmatively violate the Establishment Clause for UVA to subsidize the group's printing costs from the student activities fund. "Wide Awake" asked the U.S. Supreme Court to review the case, and it agreed to do so.

Majority opinion

The free speech claim

The government may not exercise viewpoint discrimination in a limited public forum, a space created by the government in which speech may take place according to guidelines the government itself creates. "The necessities of confining a forum to the limited and legitimate purposes for which it was created may justify the State in reserving it for certain groups or for the discussion of certain topics." However, under the First Amendment, as interpreted in "Perry Educational Association v. Perry Local Educators' Association", ussc|460|37|1983, these guidelines may not "regulate speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction". To pass First Amendment scrutiny, the restrictions imposed by the government on a limited public forum must be reasonable in light of the purpose served by the forum and may not discriminate against speech on the basis of its viewpoint.

Prior to the decision in this case, the Court's most recent foray into the constitutionality of restrictions on limited public fora was its decision in "Lamb's Chapel v. Center Moriches Union Free School District", ussc|508|384|1993. In "Lamb's Chapel", a religious organization sought to use space in a public school after school hours to show films addressing child-rearing questions from a "Christian perspective". The Court ruled that excluding this group from school facilities, while at the same time allowing other groups to use the facilities for a "wide variety of social, civic, and recreational purposes", was unconstitutional viewpoint discrimination that violated the First Amendment.

UVA's student activities fund was a limited public forum, albeit "more in a metaphysical sense than in a spatial or geographic sense", and thus these same First Amendment principles applied to the rules UVA applied to it. "By the very terms of the SAF prohibition, the University does not exclude religion as a subject matter but selects for disfavored treatment those student journalistic efforts with religious editorial viewpoints. Religion may be a vast area of inquiry, but it also provides, as it did here, a specific premise, a perspective, a standpoint from which a variety or subjects may be discussed and considered. The prohibited perspective, not the general subject matter, resulted in the refusal to make third-party payments, for the subjects discussed were otherwise within the approved category of publications". Just as the public school in "Lamb's Chapel" engaged in viewpoint discrimination when it denied permission to a Christian group to show films that addressed child-rearing from a Christian perspective, so too did UVA engage in viewpoint discrimination when it denied "Wide Awake" funding from the student activities fund to subsidize its printing costs.

The University attempted to distinguish "Lamb's Chapel" by pointing out that that case involved use of school buildings, while this case involved use of school money. "Were the reasoning of "Lamb's Chapel" to apply to funding decisions as well as to those involving access to facilities, it is urged, its holding would become a judicial juggernaut, constitutionalizing the ubiquitous content-based decisions that schools, colleges, and other government entities routinely make in the allocation of public funds." While the Court had held that when a public school or university spends its own money to disseminate its "own message", it may control both the content of the message as well as the viewpoint the message takes. But "it does not follow... that viewpoint-based restrictions are proper when the University does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of viewpoints from private speakers". UVA student groups are not agents of the university, are not subject to the university's control, and are not the responsibility of the university. Because UVA will pay third-party contractors for printing costs on behalf of private speakers who convey their own messages, it may not "silence the expression of selected viewpoints".

Vital First Amendment speech principles are at stake here. The first danger to liberty lies in granting the State the power to examine publications to determine whether or not they are based on some ultimate idea and, if so, for the State to classify them. The second, and corrolary, danger is to speech from the chilling effect of individual thought and expression. That danger is especially real in the University setting, where the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition. In ancient Athens, and, as Europe entered into a new period of intellectual awakening, in places like Bologna, Oxford, and Paris, universities began as voluntary and spontaneous assemblages or concourses for students to speak and to write and to learn. The quality and creative power of student intellectual life to this day remains a vital measure of a school's influence and attainment. For the University, by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the Nation's intellectual life, its college and university campuses.

The Guideline invoked by the University to deny third-party contractor payments on behalf of "Wide Awake" effects a sweeping restriction on student thought and student inquiry in the context of University sponsored publications. The prohibition on funding on behalf of publications that "primarily promote or manifest a particular belief in or about a deity or an ultimate reality", in its ordinary and commonplace meaning, has a vast potential reach. The term "promotes" as used here would comprehend any writing advocating a philosophic position that rests upon a belief in a deity or ultimate reality. And the term "manifests" would bring within the scope of the prohibition any writing that is explicable as resting upon a premise that presupposes the extistence of a deity or ultimate reality. Were the prohibition applies with much vigor at all, it would bar funding of essays by hypothetical students such as Plato, Spinoza, and Descartes. And if the regulation covers, as the University says it does, those student journalistic efforts that primarily manifest or promote a belief that there is no deity and no ultimate reality, then undergraduates named Karl Marx, Bertrand Russell, and Jean-Paul Sartre would likewise have some of their major essays excluded from student publications. If any manifestation of beliefs in first principles disqualifies the writing, as seems to be the case, it is indeed difficult to name renowned thinkers whose writings would be accepted, save perhaps for articles disclaiming all connection to their ultimate philosophy. Plato could contrive perhaps to submit an acceptable essay on making pasta or peanut butter cookies, provided he did not point out their (necessary) imperfections.

The Establishment Clause claim

Although UVA appeared to concede that its Establishment Clause claim lacked merit, the majority felt compelled to address it because the Fourth Circuit's ruling had rested on it. A necessary component of an Establishment Clause violation is that the government is not acting neutrally toward religion; the government acts neutrally in this sense when it follows neutral criteria and evenhanded policies to extend benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse. The Establishment Clause does not require government to refuse to extend free speech rights to religious speakers who participate in broad-reaching government programs that are neutral in design. UVA's student activities funding scheme is neutral in design because it seeks to "open a forum for speech and to support various student enterprises, including the publication of newspapers, in recognition of the diversity and creativity of student life". It stands in contrast to a tax levied for the direct support of churches, the quintessential Establishment Clause violation. Furthermore, the fact that UVA is not the actual speaker under this program bolsters the conclusion that the student activities funding scheme does not violate the Establishment Clause, since there is less of a chance that the University will be perceived as the speaker. The benefit to religion here is incidental.

Justice O'Connor's concurring view

Justice O'Connor identified the difficult aspect of this case — it lies at the "intersection of the principle of government neutrality and the prohibition on state funding of religious activities". Because these principles conflict so starkly, neither can definitively provide an answer. O'Connor identified four considerations that led her to believe that there was no Establishment Clause violation stemming from UVA's potential endorsement of any religious message "Wide Awake" might communicate. First, "Wide Awake" is "strictly independent" of UVA. Second, the money given to it from the student activities fund may only be used for permissible purposes and does not directly flow into the organization's coffers. Third, "assistance is provided to the religious publication in a context that makes improbable any perception of government endorsement of the religious message" because it also funds a "wide array of nonreligious, anti-religious and competing religious viewpoints" through the student activities fund. Fourth, students contribute the money, and students are most directly involved in disbursing it (subject to administrative oversight from UVA). The money in the student activities fund is thus neither provided by nor directly administered by the government.

Justice Thomas's concurring view

Justice Thomas joined the majority's opinion in full, but wrote separately to explicate his historical explanation of the Establishment Clause principle that determines the result in this case. In his view, James Madison's objection to government taxes to support clergy members and church buildings was that it was intended only to support Christian churches over non-Christian churches, and this was the evil against which the Establishment Clause was intended to guard. The historical evidence did not, as the dissent argues, support the conclusion that "the Establishment Clause categorically condemns state programs directly aiding religious activity when that aid is part of a neutral program available to a wide array of beneficiaries". In fact, Thomas stated that Madison advocated the principle of neutrality that led the majority to its conclusion in this case. If the dissent were to have its way, and the Establishment Clause required no government money to flow to religious organizations at all, then UVA would be permitted to allow "Wide Awake" to use its own printing press, but it would not be permitted to give "Wide Awake" money to allow it to use a third party's printing press. "Though our Establishment Clause jurisprudence is in hopeless disarray, this case provides an opportunity to reaffirm one basic principle that has enjoyed an uncharacteristic degree of consensus: The Clause does not compel the exclusion of religious groups from government benefits programs that are generally available to a broad class of participants."

Dissenting opinion

Justice Souter began his dissenting opinion by describing the religious message of "Wide Awake" in greater detail. "Each issue of Wide Awake contained in the record makes good on the editor's promise and echoes the Apostle's call to accept salvation". "The masthead of every issue bears St. Paul's exhortation, that the hour has come for you to awake from your slumber, because our salvation is nearer now than when we first believed". Articles on racism and eating disorders, for example, began with a secular perspective but quickly delved into religious messages decrying racism and proclaiming that Jesus Christ alone can "provide the ultimate source of spiritual fulfillment which permeates the emotional, psychological, and physical dimensions of our lives". "This writing is no merely descriptive examination of religious doctrine", nor was it "merely the expression of editorial opinion that incidentally coincides with Christian ethics and reflects a Christian view of human obligation. It is straightforward exhortation to enter into a relationship with God as revealed in Jesus Christ, and to satisfy a series of moral obligations derived from the teachings of Jesus Christ".

For Souter, the University was directly subsidizing religion by paying the printing costs for "Wide Awake". Not only was this forbidden by the Establishment Clause, but such a subsidy had been understood to violate the Establishment Clause since before it was added to the Constitution in 1791. "Nearly every colony had exacted a tax for church support". Indeed, the "practice was so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence". James Madison "captured the colonists' conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group".

Accordingly, the University's student activities fee was a patent violation of the principle of no direct aid to religion, because the University "exercises the power of the state to compel a student to" subsidize religious activity. Never before, according to Souter, had the Court sanctioned such a practice — on the contrary, it had always either condemned the practice or demanded that funding flow only to secular aspects of religious activity and heavily scrutinized the flow of the funds to ensure that this was the case.

Why does the Court not apply this clear law to these clear facts and conclude, as I do, that the funding scheme here is a clear constitutional violation? The answer must be in part that the Court fails to confront the evidence set out in the preceding section. Throughout its opinion, the Court refers uniformly to Wide Awake's Christian viewpoint or its religious perspective, and in distinguishing funding of Wide Awake from the funding of a church, the Court maintains that Wide Awake is not a religious institution, at least in the usual sense. The Court does not quote the magazine's adoption of Saint Paul's exhortation to awaken to the nearness of salvation, or any of its articles enjoining readers to accept Jesus Christ, or the religious verses, or the religious textual analyses, or the suggested prayers. And so it is easy for the Court to lose sight of what the University students and the Court of Appeals found so obvious, and to blanch the patently and frankly evangelistic character of the magazine by unrevealing allusions to religious points of view.

Souter saw a contradiction in the Court's analysis — it demanded neutrality, but used an Establishment Clause analysis to reach that demand.

ee also

* List of United States Supreme Court cases, volume 515

External links

*caselaw source
case="Rosenberger v. University of Virginia", 515 U.S. 819 (1995)
enfacto=http://www.enfacto.com/case/U.S./515/819/
findlaw=http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=515&invol=819
other_source1=LII
other_url1=http://www.law.cornell.edu/supct/html/94-329.ZS.html
* [http://www.oyez.org/oyez/resource/case/640/audioresources Oral arguments from the case at Oyez]
* [http://www.virginia.edu/insideuva/textonlyarchive/95-08-25/1.txt University of Virginia response to case, declaring religious publications eligible for funding]
* [http://www.cir-usa.org/cases/rosenberger_v_uva.html Article by the Center for Individual Rights, which represented Rosenberger and his co-litigants]