Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, March 12, 1995 TAG: 9503100051
SECTION: EDITORIAL PAGE: F-3 EDITION: METRO
SOURCE: W. WAT HOPKINS
DATELINE: LENGTH: Long
But Jeffries' effort did not work. Justice Antonin Scalia, in particular, was not happy with the University of Virginia's rationale for differentiating between political and religious publications. Why could the university constitutionally fund a political organization that advocated specific philosophies for human conduct but could not fund a religious organization with the same intent?
It troubled Scalia that university guidelines deny funding for any student-generated religious publication, regardless of the nature or tone of that publication. Finally, exasperated, Scalia asked, ``Aren't we simply talking about theology here?''
Scalia's questions were at the heart of Rosenberger vs. Rector and Visitors of the University of Virginia, a case that is easy to stereotype.
At first blush, it looks like part of the continuing effort by some fundamentalists to force religion into public education. Such a characterization, however, is unfair. The case involves a deeper issue: When is discrimination against religious speech prohibited by the First Amendment?
The case began in 1990, when the University of Virginia licensed Wide Awake Productions as a student organization. Ronald Rosenberger and a group of his friends established the organization to publish a Christian magazine called Wide Awake.
As an approved student organization, Wide Awake Productions received office and meeting space and the use of university computers. A request for $5,862 from student-activities fees to fund the magazine, however, was denied. University guidelines controlling the distribution of student activities fees specifically preclude, among other things, the funding of religious activities.
After exhausting the university appeals process, Rosenberger sued, alleging that the denial was based on the content of the publication rather than on some neutral criteria and therefore was unconstitutional. The lower courts agreed that the denial was content-based, but found it to be constitutional under the Establishment Clause - the portion of the First Amendment that prohibits government from either supporting or inhibiting the establishment of religion.
Oral arguments before the Supreme Court were held a week ago, and a decision is expected before the court's term ends, probably in June.
Despite predictions that the court will affirm the lower-court rulings, there is much to commend the arguments advanced by the students.
The purpose of the First Amendment, the Supreme Court has repeatedly said, is to encourage robust, public debate on a vast array of issues - including religion. To that end, the court has consistently struck down restrictions on expression that are based on content - that is, on the subject matter of the expression.
One price of a free society, the court has noted, is the threat of being confronted in public by embarrassing, offensive, irritating or inflammatory speech. The Ku Klux Klan, Black Panther Party and skinheads have as much right to contribute to the marketplace of ideas as the Republican or Democratic parties, The New York Times, the National Rifle Association, the National Organization for Women, the Roman Catholic Church or any individual.
Content-based restrictions, the court has said, are presumed to be unconstitutional, and when such restrictions exist, the burden is upon the government to prove their validity.
The University of Virginia has not met its burden.
The university has not shown, for example, how funding Wide Awake is tantamount to an endorsement of religion. The university funds 15 other student publications, each of which is required to publish a statement disclaiming university endorsement. The funding of Wide Awake, therefore, causes no establishment of religion.
In fact, the university has already provided in-kind funding for the magazine by providing university facilities. Jeffries argued to the Supreme Court that the university can provide office and meeting space at virtually no cost. Cash is at a premium, however, Jeffries said, so the university decided to exempt religious organizations from potential funding.
Under this argument, ostensibly, if the University of Virginia owned a printing press for use by student organizations, Rosenberger's group could print its magazine. Such a scheme would not be an endorsement of religion, apparently. Providing a cash grant based on neutral criteria is a small step from providing space and facilities.
Indeed, if space ever becomes a premium at the University of Virginia, the university will be required to implement a content-neutral method of determining which organizations will have access to that space. The Supreme Court recently ruled that religious organizations seeking meeting space in public schools cannot be discriminated against because of their religious focus.
The content-based funding scheme at the University of Virginia is unconstitutional and the Supreme Court is probably going to say so by at least a 5-4 vote - William Rehnquist, Anthony Kennedy, Sandra Day O'Connor and Clarence Thomas, who was silent during oral arguments, joining Scalia.
Unfortunately, unless the opinion is narrowly written, it could cause more problems than it resolves. The government - including public education - is constitutionally prohibited from endorsing or promoting religion. That is as it should be, and the court should make the point strongly.
Just as strongly, however, the court should make clear that student-generated speech may not be arbitrarily restricted from the marketplace of ideas simply because that speech focuses on religion.
W. Wat Hopkins, an associate professor of communication studies at Virginia Tech, teaches and writes about communication law.
by CNB