Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995), was an opinion by the Supreme Court of the United States regarding whether a state university might, consistent with the First Amendment, withhold from student religious publications funding provided to similar secular student publications.. The University of Virginia provided funding to every student organization that met funding-eligibility criteria, which Wide Awake, the student religious publication, fulfilled. The University's defense claimed that denying student activity funding to the religious magazine was necessary to avoid the University's violating the Establishment Clause of the First Amendment.
The Supreme Court disagreed with the University; constitutional law scholar Michael W. McConnell argued on behalf of the student religious publication, and John Calvin Jeffries argued on behalf of the University of Virginia. The decision centered on the Memorial and Remonstrance Against Religious Assessments, a document on religious freedom by James Madison.
Background To fund student organization activities, the University of Virginia (UVA) charges and collects a semestral "activities fee" from the student body. Registered student organizations, including "student news, information, opinion, entertainment, or academic communications media groups," may use said funding to pay some of their expenses; ineligible UVA student activities include "religious activities, philanthropic activities, political activities, activities that would jeopardize the University's tax-exempt status, those that involve payment of honoraria or similar fees, or social or entertainment-related expenses." Moreover, the UVA student activity funding policy defines "religious activity" as one that "primarily promotes or manifests a particular belief in or about a deity or an ultimate reality." The funds were disbursed via student organization requests for reimbursement of third-party expenses, paid by the student-activities-fund administrator.
In the case of Rosenberger v. Rector and Visitors of the University of Virginia, the plaintiff was the UVA student religious magazine Wide Awake, and later the petitioner before the U.S. Supreme Court. In 1990, Ronald Rosenberger and other students founded Wide Awake, intending to "publish a magazine of philosophical and religious expression" meant to "facilitate discussion, which fosters an atmosphere of sensitivity to and tolerance of Christian viewpoints", and to "provide a unifying focus for Christians of multicultural backgrounds." The first issue of Wide Awake published articles about racism, crisis pregnancy, homosexuality, prayer, C.S. Lewis, eating disorders, and interviews with UVA instructors. The magazine was a registered student organization eligible for student activities funding, and requested some $6,000 to pay for printing the magazine. The fund administrator denied the funding, because the University classified Wide Awake magazine as a funding-ineligible religious activity, because it "promoted or manifested a particular belief in or about a deity or an ultimate reality." The editors appealed the denial to every pertinent administrator, and ultimately lost their case when the dean of students upheld the denial of student activities funds for the religious magazine Wide Awake.
Having no further recourse in the University of Virginia, Wide Awake magazine and Rosenberger asked the legal help of the Center for Individual Rights, which filed a lawsuit against UVA, under 42 U.S.C. § 1983,. in the United States District Court for the Western District of Virginia, which granted summary judgement to the University, ruling that denying student activities funding to Wide Awake was neither unconstitutional content-based discrimination, nor unconstitutional viewpoint discrimination, and that the University's interest in avoiding violating the Establishment Clause justified not subsidizing the magazine. Yet, the district court did not conclusively rule on the related question of whether or not the UVA subsidizing of the student religious magazine would violate the Establishment Clause of the U.S. Constitution. Wide Awake appealed its lost case to the Fourth Circuit court, which ruled that the University had engaged in unconstitutional viewpoint discrimination, but that the University's subsidizing the religious magazine would affirmatively violate the Establishment Clause. Wide Awake then appealed the Fourth Circuit Court's decision to the U.S. Supreme Court, which agreed to review the case.
Majority opinion The free speech claim
The Government may not discriminate against a given point of view in a limited public forum, a government-created space wherein speech might occur according to the government's guidelines. "The necessity 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." Yet, under the First Amendment interpretation posited in Perry Educational Association v. Perry Local Educators' Association,. said government guidelines may not "regulate speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction."
Before deciding Rosenberger v. University of Virginia, the Court's last case about the constitutionality of restrictions upon limited public fora was its decision in Lamb's Chapel v. Center Moriches Union Free School District, . wherein a Christian organization sought after-hours use of public school space to show Christian child-rearing films. The Court ruled that excluding the religious organization from school installations, whilst simultaneously permitting secular groups' use of the same place for a "wide variety of social, civic, and recreational purposes," constituted viewpoint discrimination that violated the First Amendment.
The University of Virginia Student Activities Fund (SAF) constituted a limited public forum, albeit "more in a metaphysical sense than in a spatial or geographic sense," yet "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 of 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."
The University of Virginia defense distinguished between its funds-denial action and the actions tried in Lamb's Chapel v. Center Moriches Union Free School District noting that it involved the use of public school buildings, whilst the case of Rosenberger v. University of Virginia involved the 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." The Court held that when a public school or university spends its own money to disseminate its own message, it may control the content and perspective, yet "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 organizations are not University agents subject to University control, and are not a University responsibility. Because the University of Virginia will pay third-party printing costs for private speakers communicating 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 corollary, danger to speech is 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.Rosenberger, 515 U.S. at 835-36.
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 applied 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.Rosenberger, 515 U.S. at 836-37.
The University's Establishment Clause claim