According to the Supreme Court decision in Rosenberger v. Rectors and Visitors of the University of Virginia, 515 U.S. 819 (1995), a public university that funds student-run publications cannot engage in viewpoint discrimination by denying funding to select publications based on the particular views expressed in those publications.
Religious activities could not get funds from university
The University of Virginia established the Student Activities Fund (SAF), through a mandatory student fee, to pay for extracurricular activities by students that supported the “educational purpose of the University.” Student organizations could apply for SAF certification and be eligible for reimbursement of expenses related to an educational purpose, which could include the expression or support of policy or ideological preferences.
Activities specifically disqualified from receiving funds included “religious activities,” defined as any activity that “primarily promotes or manifests a particular belief in or about a deity or ultimate reality,” and “political activities,” defined as campaigning or lobbying.
Christian on-campus magazine said policy violated First Amendment
Ronald Rosenberger, a full-time student, established Wide Awake Productions (WAP), a magazine published for the discussion of public issues from “Christian viewpoints,” and received SAF certification to apply for reimbursement of legitimate expenses. After publication, Rosenberger applied for reimbursement of printing costs and was denied by SAF on grounds that WAP was considered a “religious activity.” Rosenberger filed suit in federal court maintaining that the university’s policy constituted “viewpoint discrimination” and violated the First Amendment.
The federal district court found that the university had engaged in viewpoint discrimination, but found this acceptable given the university’s deference to the restrictions of the establishment clause. The federal appeals court found the university guilty of content discrimination, but agreed with the lower court that this was justified by the university’s vigilance for maintaining separation of church and state.
Arguing before the Supreme Court, the University of Virginia attempted to justify its denial of funding to WAP on the basis that it, an agency of the state, was funding the student forum and this allowed it to discriminate.
Supreme Court ruled University of Virginia engaged in impermissible viewpoint discrimination
The Court, however, reversed the lower court in a 5-4 ruling and held that the university had violated Rosenberger’s constitutional rights through a policy of viewpoint discrimination.
Kennedy began with the assertion that it is axiomatic that “government may not regulate speech based on its content,” unless it is in the context of a “limited forum” for the discussion of specifically named topics. In such instances, “content discrimination may be permissible if it preserves the purposes of that limited forum.”
When, however, the government attempts to regulate “particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.” Kennedy explained that viewpoint discrimination was an especially “egregious” form of content discrimination.
Relying on the Court’s decision in Lamb’s Chapel v. Center Moriches Union Free School District (1993), Kennedy conceded that when the government decides to fund “private speakers to transmit specific information pertaining to its own program,” it may discriminate based on content. But the SAF program is designed “to encourage a diversity of views from private speakers” through reimbursement of certain costs incurred by student organizations. Because the university grants financial benefits to certified student organizations, it must provide those benefits using a procedure that is viewpoint neutral: “WAP did not seek a subsidy because of its Christian editorial viewpoint; it sought funding as a student journal, which it is.”
Kennedy said religious neutrality overcame concern about establishment clause
Although the university did not emphasize its concern over a possible violation of the establishment clause as a rationale for not funding WAP, Kennedy dismissed the possibility of such a concern.
After reviewing a series of cases in this area, the Court concluded “that a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion.” The SAF program itself is neutral; its purpose is to provide “a forum of speech and to support various student enterprises,” including newspapers, which reflect the “diversity and creativity of student life” at the University of Virginia.
Justice David H. Souter — joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer — dissented. Souter wrote that “there is no warrant for distinguishing among public funding sources for purposes of applying the First Amendment’s prohibition of religious establishment.”
Alex Aichinger is a former professor at Northwestern State University in Louisiana. He has also contributed to American Constitutional Law Volumes I and II. This article originally published in 2009.