ROSENBERGER v. UNIVERSITY OF VIRGINIA
Argued March 1, 1995
Decided June 29, 1995
Respondent University of Virginia, a state
instrumentality, authorizes payments from its Student
Activities Fund (SAF) to outside contractors for the
printing costs of a variety of publications issued by
student groups called "Contracted Independent Organizations"
(CIOs). The SAF receives its money from mandatory student
fees and is designed to support a broad range of extracurricular
student activities related to the University's educational
purpose. CIOs must include in their dealings with third
parties and in all written materials a disclaimer stating
that they are independent of the University and that
the University is not responsible for them. The University
withheld authorization for payments to a printer on
behalf of petitioners' CIO, Wide Awake Productions (WAP),
solely because its student newspaper, Wide Awake: A
Christian Perspective at the University of Virginia,
"primarily promotes or manifests a particular belie[f]
in or about a deity or an ultimate reality," as
prohibited by the University's SAF Guidelines. Petitioners
filed this suit under 42 U.S.C. 1983, alleging, inter
alia, that the refusal to authorize payment violated
their First Amendment right to freedom of speech. After
the District Court granted summary judgment for the
University, the Fourth Circuit affirmed, holding that
the University's invocation of viewpoint discrimination
to deny third-party payment violated the Speech Clause,
but concluding that the discrimination was justified
by the necessity of complying with the Establishment
Clause.
Held:
1. The Guideline invoked to deny SAF support,
both in its terms and in its application to these petitioners,
is a denial of their right Page II of free speech. Pp.
7-16.
(a) The Guideline violates the principles
governing speech in limited public forums, which apply
to the SAF under, e.g., Perry Ed. Assn. v. Perry Local
Educators' Assn., 460 U.S. 37, 46 -47. In determining
whether a State is acting within its power to preserve
the limits it has set for such a forum so that the exclusion
of a class of speech there is legitimate, see, e.g.,
id., at 49, this Court has observed a distinction between,
on the one hand, content discrimination - i.e., discrimination
against speech because of its subject matter - which
may be permissible if it preserves the limited forum's
purposes, and, on the other hand, viewpoint discrimination
i.e., discrimination because of the speaker's specific
motivating ideology, opinion, or perspective - which
is presumed impermissible when directed against speech
otherwise within the forum's limitations, see id., at
46. The most recent and most apposite case in this area
is Lamb's Chapel v. Center Moriches Union Free School
Dist., 508 U.S. __, __, in which the Court held that
permitting school property to be used for the presentation
of all views on an issue except those dealing with it
from a religious standpoint constitutes prohibited viewpoint
discrimination. Here, as in that case, the State's actions
are properly interpreted as unconstitutional viewpoint
discrimination rather than permissible line-drawing
based on content: 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.
Pp. 7-11.
(b) The University's attempt to escape
the consequences of Lamb's Chapel by urging that this
case involves the provision of funds rather than access
to facilities is unavailing. Although it may regulate
the content of expression when it is the speaker or
when it enlists private entities to convey its own message,
Rust v. Sullivan, 500 U.S. 173 ; Widmar v. Vincent,
454 U.S. 263, 276 , the University may not discriminate
based on the viewpoint of private persons whose speech
it subsidizes, Regan v. Taxation with Representation
of Wash., 461 U.S. 540, 548 . Its argument that the
scarcity of public money may justify otherwise impermissible
viewpoint discrimination among private speakers is simply
wrong. Pp. 11-14.
(c) Vital First Amendment speech principles
are at stake here. The Guideline at issue has a vast
potential reach: The term "promotes" as used
there would comprehend any writing advocating a philosophic
position that rests upon a belief (or nonbelief) in
a deity or ultimate reality, while the term "manifests"
would bring within the prohibition any writing resting
upon a premise presupposing the existence (or nonexistence)
of a deity or ultimate reality. It is Page III difficult
to name renowned thinkers whose writings would be accepted,
save perhaps for articles disclaiming all connection
to their ultimate philosophy. Pp. 14-16.
2. The violation following from the University's
denial of SAF support to petitioners is not excused
by the necessity of complying with the Establishment
Clause. Pp. 16-25.
(a) The governmental program at issue
is neutral toward religion. Such neutrality is a significant
factor in upholding programs in the face of Establishment
Clause attack, and the guarantee of neutrality is not
offended where, as here, the government follows neutral
criteria and even-handed policies to extend benefits
to recipients whose ideologies and viewpoints, including
religious ones, are broad and diverse, Board of Ed.
of Kiryas Joel v. Grumet, 512 U.S. __, __. There is
no suggestion that the University created its program
to advance religion or aid a religious cause. The SAF's
purpose is 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. The SAF Guidelines have a separate
classification for, and do not make third-party payments
on behalf of, "religious organizations," and
WAP did not seek a subsidy because of its Christian
editorial viewpoint; it sought funding under the Guidielines
as a "student . . . communications . . . grou[p]."
Neutrality is also apparent in the fact that the University
has taken pains to disassociate itself from the private
speech involved in this case. The program's neutrality
distinguishes the student fees here from a tax levied
for the direct support of a church or group of churches,
which would violate the Establishment Clause. Pp. 16-21.
(b) This case is not controlled by the
principle that special Establishment Clause dangers
exist where the government makes direct money payments
to sectarian institutions, see, e.g., Roemer v. Board
of Public Works, 426 U.S. 736, 747 , since it is undisputed
that no public funds flow directly into WAP's coffers
under the program at issue. A public university does
not violate the Establishment Clause when it grants
access to its facilities on a religion-neutral basis
to a wide spectrum of student groups, even if some of
those groups would use the facilities for devotional
exercises. See e.g., Widmar, 474 U.S., at 269 . This
is so even where the upkeep, maintenance, and repair
of those facilities is paid out of a student activities
fund to which students are required to contribute. Id.,
at 265. There is no difference in logic or principle,
and certainly no difference of constitutional significance,
between using such funds to operate a facility to which
students have access, and paying a third-party contractor
to operate the facility on its behalf. That is all Page
IV that is involved here: The University provides printing
services to a broad spectrum of student newspapers.
Were the contrary view to become law, the University
could only avoid a constitutional violation by scrutinizing
the content of student speech, lest it contain too great
a religious message. Such censorship would be far more
inconsistent with the Establishment Clause's dictates
than would governmental provision of secular printing
services on a religion-blind basis. Pp. 21-25.
18 F.3d 269, reversed.
KENNEDY, J., delivered the opinion of the Court, in
which REHNQUIST, C. J., and O'CONNOR, SCALIA, and THOMAS,
JJ., joined. O'CONNOR, J., and THOMAS, J., filed concurring
opinions. SOUTER, J., filed a dissenting opinion, in
which STEVENS, GINSBURG, and BREYER, JJ., joined. [
ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___ U.S. ___
(1995) , 1]
JUSTICE KENNEDY delivered the opinion
of the Court.
The University of Virginia, an instrumentality
of the Commonwealth for which it is named and thus bound
by the First and Fourteenth Amendments, authorizes the
payment of outside contractors for the printing costs
of a variety of student publications. It withheld any
authorization for payments on behalf of petitioners
for the sole reason that their student paper "primarily
promotes or manifests a particular belie[f] in or about
a deity or an ultimate reality." That the paper
did promote or manifest views within the defined exclusion
seems plain enough. The challenge is to the University's
regulation and its denial of authorization, the case
raising issues under the Speech and Establishment Clauses
of the First Amendment.
I
The public corporation we refer to as
the "University" is denominated by state law
as "the Rector and Visitors of the University of
Virginia," Va. Code Ann. 23-69 (1993), and it is
responsible for governing the school, see 23-69 to 23-80.
Founded by Thomas Jefferson in 1819, and ranked by him,
together with the authorship of the Declaration of Independence
and of the Virginia [ ROSENBERGER v. UNIVERSITY OF VIRGINIA,
___ U.S. ___ (1995) , 2] Act for Religious Freedom,
Va. Code Ann. 57-1, as one of his proudest achievements,
the University is among the Nation's oldest and most
respected seats of higher learning. It has more than
11,000 undergraduate students, and 6,000 graduate and
professional students. An understanding of the case
requires a somewhat detailed description of the program
the University created to support extracurricular student
activities on its campus.
Before a student group is eligible to submit bills from
its outside contractors for payment by the fund described
below, it must become a "Contracted Independent
Organization" (CIO). CIO status is available to
any group the majority of whose members are students,
whose managing officers are fulltime students, and that
complies with certain procedural requirements. App.
to Pet. for Cert. 2a. A CIO must file its constitution
with the University; must pledge not to discriminate
in its membership; and must include in dealings with
third parties and in all written materials a disclaimer,
stating that the CIO is independent of the University
and that the University is not responsible for the CIO.
App. 27-28. CIOs enjoy access to University facilities,
including meeting rooms and computer terminals. Id.,
at 30. A standard agreement signed between each CIO
and the University provides that the benefits and opportunities
afforded to CIOs "should not be misinterpreted
as meaning that those organizations are part of or controlled
by the University, that the University is responsible
for the organizations' contracts or other acts or omissions,
or that the University approves of the organizations'
goals or activities." Id., at 26.
All CIOs may exist and operate at the
University, but some are also entitled to apply for
funds from the Student Activities Fund (SAF). Established
and governed by University Guidelines, the purpose of
the SAF is to support a broad range of extracurricular
student [ ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___
U.S. ___ (1995) , 3] activities that "are related
to the educational purpose of the University."
App. to Pet. for Cert. 61a. The SAF is based on the
University's "recogni[tion] that the availability
of a wide range of opportunities" for its students
"tends to enhance the University environment."
App. 26. The Guidelines require that it be administered
"in a manner consistent with the educational purpose
of the University as well as with state and federal
law." App. to Pet. for Cert. 61a. The SAF receives
its money from a mandatory fee of $14 per semester assessed
to each full-time student. The Student Council, elected
by the students, has the initial authority to disburse
the funds, but its actions are subject to review by
a faculty body chaired by a designee of the Vice President
for Student Affairs. Cf. id., at 63a-64a.
Some, but not all, CIOs may submit disbursement
requests to the SAF. The Guidelines recognize 11 categories
of student groups that may seek payment to third-party
contractors because they "are related to the educational
purpose of the University of Virginia." Id., at
61a-62a. One of these is "student news, information,
opinion, entertainment, or academic communications media
groups." Id., at 61a. The Guidelines also specify,
however, that the costs of certain activities of CIOs
that are otherwise eligible for funding will not be
reimbursed by the SAF. The student activities which
are excluded from SAF support are religious activities,
philanthropic contributions and activities, political
activities, activities that would jeopardize the University's
tax exempt status, those which involve payment of honoraria
or similar fees, or social entertainment or related
expenses. Id., at 62a-63a. The prohibition on "political
activities" is defined so that it is limited to
electioneering and lobbying. The Guidelines provide
that "[t]hese restrictions on funding political
activities are not intended to preclude funding of any
otherwise eligible student organization which . . .
espouses particular positions or [ ROSENBERGER v. UNIVERSITY
OF VIRGINIA, ___ U.S. ___ (1995) , 4] ideological viewpoints,
including those that may be unpopular or are not generally
accepted." Id., at 65a-66a. A "religious activity,"
by contrast, is defined as any activity that "primarily
promotes or manifests a particular belie[f] in or about
a deity or an ultimate reality." Id., at 66a.
The Guidelines prescribe these criteria
for determining the amounts of third-party disbursements
that will be allowed on behalf of each eligible student
organization: the size of the group, its financial self-sufficiency,
and the University-wide benefit of its activities. If
an organization seeks SAF support, it must submit its
bills to the Student Council, which pays the organization's
creditors upon determining that the expenses are appropriate.
No direct payments are made to the student groups. During
the 1990-1991 academic year, 343 student groups qualified
as CIOs. One hundred thirty-five of them applied for
support from the SAF, and 118 received funding. Fifteen
of the groups were funded as "student news, information,
opinion, entertainment, or academic communications media
groups."
Petitioners' organization, Wide Awake
Productions (WAP), qualified as a CIO. Formed by petitioner
Ronald Rosenberger and other undergraduates in 1990,
WAP was established "[t]o publish a magazine of
philosophical and religious expression," "[t]o
facilitate discussion which fosters an atmosphere of
sensitivity to and tolerance of Christian viewpoints,"
and "[t]o provide a unifying focus for Christians
of multicultural backgrounds." App. 67. WAP publishes
Wide Awake: A Christian Perspective at the University
of Virginia. The paper's Christian viewpoint was evident
from the first issue, in which its editors wrote that
the journal "offers a Christian perspective on
both personal and community issues, especially those
relevant to college students at the University of Virginia."
App. 45. The editors committed the paper to a two-fold
mission: "to challenge Christians [ ROSENBERGER
v. UNIVERSITY OF VIRGINIA, ___ U.S. ___ (1995) , 5]
to live, in word and deed, according to the faith they
proclaim and to encourage students to consider what
a personal relationship with Jesus Christ means."
Ibid. The first issue had articles about racism, crisis
pregnancy, stress, prayer, C. S. Lewis' ideas about
evil and free will, and reviews of religious music.
In the next two issues, Wide Awake featured stories
about homosexuality, Christian missionary work, and
eating disorders, as well as music reviews and interviews
with University professors. Each page of Wide Awake,
and the end of each article or review, is marked by
a cross. The advertisements carried in Wide Awake also
reveal the Christian perspective of the journal. For
the most part, the advertisers are churches, centers
for Christian study, or Christian bookstores. By June
1992, WAP had distributed about 5,000 copies of Wide
Awake to University students, free of charge.
WAP had acquired CIO status soon after
it was organized. This is an important consideration
in this case, for had it been a "religious organization,"
WAP would not have been accorded CIO status. As defined
by the Guidelines, a "religious organization"
is "an organization whose purpose is to practice
a devotion to an acknowledged ultimate reality or deity."
App. to Pet. for Cert. 66a. At no stage in this controversy
has the University contended that WAP is such an organization.
A few months after being given CIO status,
WAP requested the SAF to pay its printer $5,862 for
the costs of printing its newspaper. The Appropriations
Committee of the Student Council denied WAP's request
on the ground that Wide Awake was a "religious
activity" within the meaning of the Guidelines,
i.e., that the newspaper "promote[d] or manifest[ed]
a particular belie[f] in or about a deity or an ultimate
reality." Ibid. It made its determination after
examining the first issue. App. 54. WAP appealed the
denial to the full Student Council, contending that
WAP met all the [ ROSENBERGER v. UNIVERSITY OF VIRGINIA,
___ U.S. ___ (1995) , 6] applicable Guidelines and that
denial of SAF support on the basis of the magazine's
religious perspective violated the Constitution. The
appeal was denied without further comment, and WAP appealed
to the next level, the Student Activities Committee.
In a letter signed by the Dean of Students, the committee
sustained the denial of funding. App. 55.
Having no further recourse within the
University structure, WAP, Wide Awake, and three of
its editors and members filed suit in the United States
District Court for the Western District of Virginia,
challenging the SAF's action as violative of Rev. Stat.
1979, 42 U.S.C. 1983. They alleged that refusal to authorize
payment of the printing costs of the publication, solely
on the basis of its religious editorial viewpoint, violated
their rights to freedom of speech and press, to the
free exercise of religion, and to equal protection of
the law. They relied also upon Article I of the Virginia
Constitution and the Virginia Act for Religious Freedom,
Va. Code Ann. 57-1, 57-2 (1986 and Supp. 1994), but
did not pursue those theories on appeal. The suit sought
damages for the costs of printing the paper, injunctive
and declaratory relief, and attorney's fees.
On cross-motions for summary judgment,
the District Court ruled for the University, holding
that denial of SAF support was not an impermissible
content or viewpoint discrimination against petitioners'
speech, and that the University's Establishment Clause
concern over its "religious activities" was
a sufficient justification for denying payment to third-party
contractors. The court did not issue a definitive ruling
on whether reimbursement, had it been made here, would
or would not have violated the Establishment Clause.
795 F. Supp. 175, 181-182 (WD Va. 1992).
The United States Court of Appeals for
the Fourth Circuit, in disagreement with the District
Court, held that the Guidelines did discriminate on
the basis of [ ROSENBERGER v. UNIVERSITY OF VIRGINIA,
___ U.S. ___ (1995) , 7] content. It ruled that, while
the State need not underwrite speech, there was a presumptive
violation of the Speech Clause when viewpoint discrimination
was invoked to deny third-party payment otherwise available
to CIOs. 18 F.3d 269, 279-281 (1994). The Court of Appeals
affirmed the judgment of the District Court nonetheless,
concluding that the discrimination by the University
was justified by the "compelling interest in maintaining
strict separation of church and state." Id., at
281.
II
It is axiomatic that the government may
not regulate speech based on its substantive content
or the message it conveys. Police Dept. of Chicago v.
Mosley, 408 U.S. 92, 96 (1972). Other principles follow
from this precept. In the realm of private speech or
expression, government regulation may not favor one
speaker over another. City Council of Los Angeles v.
Taxpayers for Vincent, 466 U.S. 789, 804 (1984). Discrimination
against speech because of its message is presumed to
be unconstitutional. See Turner Broadcasting System,
Inc. v. FCC, 512 U.S. ___, ___ (1994) (slip op., at
16-19). These rules informed our determination that
the government offends the First Amendment when it imposes
financial burdens on certain speakers based on the content
of their expression. Simon & Schuster, Inc. v. Members
of N. Y. State Crime Victims Bd., 502 U.S. 105, 115
(1991). When the government targets not subject matter
but particular views taken by speakers on a subject,
the violation of the First Amendment is all the more
blatant. See R. A. V. v. St. Paul, 505 U.S. 377, 391
(1992). Viewpoint discrimination is thus an egregious
form of content discrimination. The government must
abstain from regulating speech when the specific motivating
ideology or the opinion or perspective of the speaker
is the rationale for the restriction. See Perry Ed.
Assn. v. [ ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___
U.S. ___ (1995) , 8] Perry Local Educators' Assn., 460
U.S. 37, 46 (1983).
These principles provide the framework forbidding the
State from exercising viewpoint discrimination, even
when the limited public forum is one of its own creation.
In a case involving a school district's provision of
school facilities for private uses, we declared that
"[t]here is no question that the District, like
the private owner of property, may legally preserve
the property under its control for the use to which
it is dedicated." Lamb's Chapel v. Center Moriches
Union Free School Dist., 508 U.S. __, __ (slip op.,
at 5-7) (1993). 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.
See, e.g., Cornelius v. NAACP Legal Defense & Ed.
Fund, Inc., 473 U.S. 788, 806 (1985); Perry Ed. Assn.,
supra, at 49. Once it has opened a limited forum, however,
the State must respect the lawful boundaries it has
itself set. The State may not exclude speech where its
distinction is not "reasonable in light of the
purpose served by the forum," Cornelius, supra,
at 804-806; see also Perry Ed. Assn., supra, at 46,
49, nor may it discriminate against speech on the basis
of its viewpoint, Lamb's Chapel, supra, at ___ (slip
op., at 6-7); see also Perry Ed. Assn., supra, at 46;
R. A. V., supra, at 386-388, 391-393; cf. Texas v. Johnson,
491 U.S. 397, 414 -415 (1989). Thus, in determining
whether the State is acting to preserve the limits of
the forum it has created so that the exclusion of a
class of speech is legitimate, we have observed a distinction
between, on the one hand, content discrimination, which
may be permissible if it preserves the purposes of that
limited forum, and, on the other hand, viewpoint discrimination,
which is presumed impermissible when directed against
speech otherwise within the forum's limitations. See
Perry Ed. Assn., supra, at 46.
The SAF is a forum more in a metaphysical
than in [ ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___
U.S. ___ (1995) , 9] a spatial or geographic sense,
but the same principles are applicable. See, e.g., Perry
Ed. Assn., supra, at 46-47 (forum analysis of a school
mail system); Cornelius, supra, at 801 (forum analysis
of charitable contribution program). The most recent
and most apposite case is our decision in Lamb's Chapel,
supra. There, a school district had opened school facilities
for use after school hours by community groups for a
wide variety of social, civic, and recreational purposes.
The district, however, had enacted a formal policy against
opening facilities to groups for religious purposes.
Invoking its policy, the district rejected a request
from a group desiring to show a film series addressing
various child-rearing questions from a "Christian
perspective." There was no indication in the record
in Lamb's Chapel that the request to use the school
facilities was "denied for any reason other than
the fact that the presentation would have been from
a religious perspective." 508 U.S., at ___ (slip
op., at 8-9). Our conclusion was unanimous: "[I]t
discriminates on the basis of viewpoint to permit school
property to be used for the presentation of all views
about family issues and child-rearing except those dealing
with the subject matter from a religious standpoint."
Ibid.
The University does acknowledge (as it
must in light of our precedents) that "ideologically
driven attempts to suppress a particular point of view
are presumptively unconstitutional in funding, as in
other contexts," but insists that this case does
not present that issue because the Guidelines draw lines
based on content, not viewpoint. Brief for Respondents
17, n. 10. As we have noted, discrimination against
one set of views or ideas is but a subset or particular
instance of the more general phenomenon of content discrimination.
See, e.g., R. A. V., supra, at 391. And, it must be
acknowledged, the distinction is not a precise one.
It is, in a sense, something of an understatement to
speak of religious [ ROSENBERGER v. UNIVERSITY OF VIRGINIA,
___ U.S. ___ (1995) , 10] thought and discussion as
just a viewpoint, as distinct from a comprehensive body
of thought. The nature of our origins and destiny and
their dependence upon the existence of a divine being
have been subjects of philosophic inquiry throughout
human history. We conclude, nonetheless, that here,
as in Lamb's Chapel, viewpoint discrimination is the
proper way to interpret the University's objections
to Wide Awake. 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 dissent's assertion that no viewpoint
discrimination occurs because the Guidelines discriminate
against an entire class of viewpoints reflects an insupportable
assumption that all debate is bipolar and that anti-religious
speech is the only response to religious speech. Our
understanding of the complex and multifaceted nature
of public discourse has not embraced such a contrived
description of the marketplace of ideas. If the topic
of debate is, for example, racism, then exclusion of
several views on that problem is just as offensive to
the First Amendment as exclusion of only one. It is
as objectionable to exclude both a theistic and an atheistic
perspective on the debate as it is to exclude one, the
other, or yet another political, economic, or social
viewpoint. The dissent's declaration that debate is
not skewed so long as multiple voices are silenced is
simply wrong; the debate is skewed in multiple ways.
The University's denial of WAP's request
for third-party [ ROSENBERGER v. UNIVERSITY OF VIRGINIA,
___ U.S. ___ (1995) , 11] payments in the present case
is based upon viewpoint discrimination not unlike the
discrimination the school district relied upon in Lamb's
Chapel and that we found invalid. The church group in
Lamb's Chapel would have been qualified as a social
or civic organization, save for its religious purposes.
Furthermore, just as the school district in Lamb's Chapel
pointed to nothing but the religious views of the group
as the rationale for excluding its message, so in this
case the University justifies its denial of SAF participation
to WAP on the ground that the contents of Wide Awake
reveal an avowed religious perspective. See supra, at
5. It bears only passing mention that the dissent's
attempt to distinguish Lamb's Chapel is entirely without
support in the law. Relying on the transcript of oral
argument, the dissent seems to argue that we found viewpoint
discrimination in that case because the government excluded
Christian, but not atheistic, viewpoints from being
expressed in the forum there. Post, at 37-38, and n.
13. The Court relied on no such distinction in holding
that discriminating against religious speech was discriminating
on the basis of viewpoint. There is no indication in
the opinion of the Court (which, unlike an advocate's
statements at oral argument, is the law) that exclusion
or inclusion of other religious or antireligious voices
from that forum had any bearing on its decision.
The University tries to escape the consequences
of our holding in Lamb's Chapel by urging that this
case involves the provision of funds rather than access
to facilities. The University begins with the unremarkable
proposition that the State must have substantial discretion
in determining how to allocate scarce resources to accomplish
its educational mission. Citing our decisions in Rust
v. Sullivan, 500 U.S. 173 (1991), Regan v. Taxation
with Representation of Wash., 461 U.S. 540 (1983), and
Widmar v. Vincent, 454 U.S. 263 [ ROSENBERGER v. UNIVERSITY
OF VIRGINIA, ___ U.S. ___ (1995) , 12] (1981), the University
argues that content-based funding decisions are both
inevitable and lawful. 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." Brief for Respondents
16.
To this end the University relies on our
assurance in Widmar v. Vincent, supra. There, in the
course of striking down a public university's exclusion
of religious groups from use of school facilities made
available to all other student groups, we stated: "Nor
do we question the right of the University to make academic
judgments as to how best to allocate scarce resources."
454 U.S., at 276 . The quoted language in Widmar was
but a proper recognition of the principle that when
the State is the speaker, it may make content-based
choices. When the University determines the content
of the education it provides, it is the University speaking,
and we have permitted the government to regulate the
content of what is or is not expressed when it is the
speaker or when it enlists private entities to convey
its own message. In the same vein, in Rust v. Sullivan,
supra, we upheld the government's prohibition on abortion-related
advice applicable to recipients of federal funds for
family planning counseling. There, the government did
not create a program to encourage private speech but
instead used private speakers to transmit specific information
pertaining to its own program. We recognized that when
the government appropriates public funds to promote
a particular policy of its own it is entitled to say
what it wishes. 500 U.S., at 194 . When the government
disburses public funds to private entities to convey
a governmental message, it may take legitimate and appropriate
steps [ ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___ U.S.
___ (1995) , 13] to ensure that its message is neither
garbled nor distorted by the grantee. See id., at 196-200.
It does not follow, however, and we did
not suggest in Widmar, 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 views
from private speakers. A holding that the University
may not discriminate based on the viewpoint of private
persons whose speech it facilitates does not restrict
the University's own speech, which is controlled by
different principles. See, e.g., Board of Ed. of Westside
Community Schools (Dist. 66) v. Mergens, 496 U.S. 226,
250 (1990); Hazelwood School Dist. v. Kuhlmeier, 484
U.S. 260, 270 -272 (1988). For that reason, the University's
reliance on Regan v. Taxation with Representation of
Wash., supra, is inapposite as well. Regan involved
a challenge to Congress' choice to grant tax deductions
for contributions made to veterans' groups engaged in
lobbying, while denying that favorable status to other
charities which pursued lobbying efforts. Although acknowledging
that the Government is not required to subsidize the
exercise of fundamental rights, see 461 U.S., at 545
-546, we reaffirmed the requirement of viewpoint neutrality
in the Government's provision of financial benefits
by observing that "[t]he case would be different
if Congress were to discriminate invidiously in its
subsidies in such a way as to `ai[m] at the suppression
of dangerous ideas,'" see id., at 548 (quoting
Cammarano v. United States, 358 U.S. 498, 513 (1959),
in turn quoting Speiser v. Randall, 357 U.S. 513, 519
(1958). Regan relied on a distinction based on preferential
treatment of certain speakers - veterans organizations
- and not a distinction based on the content or messages
of those groups' speech. 461 U.S., at 548 ; cf. Perry
Ed. Assn., 460 U.S., at 49 . The University's regulation
now before us, however, has a speech-based [ ROSENBERGER
v. UNIVERSITY OF VIRGINIA, ___ U.S. ___ (1995) , 14]
restriction as its sole rationale and operative principle.
The distinction between the University's
own favored message and the private speech of students
is evident in the case before us. The University itself
has taken steps to ensure the distinction in the agreement
each CIO must sign. See supra, at 2. The University
declares that the student groups eligible for SAF support
are not the University's agents, are not subject to
its control, and are not its responsibility. Having
offered to pay the third-party contractors on behalf
of private speakers who convey their own messages, the
University may not silence the expression of selected
viewpoints.
The University urges that, from a constitutional
standpoint, funding of speech differs from provision
of access to facilities because money is scarce and
physical facilities are not. Beyond the fact that in
any given case this proposition might not be true as
an empirical matter, the underlying premise that the
University could discriminate based on viewpoint if
demand for space exceeded its availability is wrong
as well. The government cannot justify viewpoint discrimination
among private speakers on the economic fact of scarcity.
Had the meeting rooms in Lamb's Chapel been scarce,
had the demand been greater than the supply, our decision
would have been no different. It would have been incumbent
on the State, of course, to ration or allocate the scarce
resources on some acceptable neutral principle; but
nothing in our decision indicated that scarcity would
give the State the right to exercise viewpoint discrimination
that is otherwise impermissible.
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 is to speech from the chilling
of individual thought and expression. That danger [
ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___ U.S. ___
(1995) , 15] 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. See Healy v.
James, 408 U.S. 169, 180 -181 (1972); Keyishian v. Board
of Regents, State Univ. of N. Y., 385 U.S. 589, 603
(1967); Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957).
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. See generally R. Palmer
& J. Colton, A History of the Modern World 39 (7th
ed. 1992). 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
WAP ef-fects 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 promot[e] or manifes[t]
a particular belie[f] in or about a deity or an ultimate
reality," in its ordinary and commonsense 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. See Webster's Third New International
Dictionary 1815 (1961) (defining "promote"
as "to contribute to the growth, enlargement, or
prosperity of: further, encourage"). And the term
"manifests" would bring within the scope of
the prohibition any writing that is [ ROSENBERGER v.
UNIVERSITY OF VIRGINIA, ___ U.S. ___ (1995) , 16] explicable
as resting upon a premise which presupposes the existence
of a deity or ultimate reality. See id., at 1375 (defining
"manifest" as "to show plainly: make
palpably evident or certain by showing or displaying").
Were the prohibition applied with much vigor at all,
it would bar funding of essays by hypothetical student
contributors named Plato, Spinoza, and Descartes. And
if the regulation covers, as the University says it
does, see Tr. of Oral Arg. 18-19, those student journalistic
efforts which 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.
Based on the principles we have discussed,
we hold that the regulation invoked to deny SAF support,
both in its terms and in its application to these petitioners,
is a denial of their right of free speech guaranteed
by the First Amendment. It remains to be considered
whether the violation following from the University's
action is excused by the necessity of complying with
the Constitution's prohibition against state establishment
of religion. We turn to that question.
III
Before its brief on the merits in this
Court, the University had argued at all stages of the
litigation that inclusion of WAP's contractors in SAF
funding authorization would violate the Establishment
Clause. Indeed, [ ROSENBERGER v. UNIVERSITY OF VIRGINIA,
___ U.S. ___ (1995) , 17] that is the ground on which
the University prevailed in the Court of Appeals. We
granted certiorari on this question: "Whether the
Establishment Clause compels a state university to exclude
an otherwise eligible student publication from participation
in the student activities fund, solely on the basis
of its religious viewpoint, where such exclusion would
violate the Speech and Press Clauses if the viewpoint
of the publication were nonreligious." Pet. for
Cert. i. The University now seems to have abandoned
this position, contending that "[t]he fundamental
objection to petitioners' argument is not that it implicates
the Establishment Clause but that it would defeat the
ability of public education at all levels to control
the use of public funds." Brief for Respondents
29; see id., at 27-29, and n. 17; Tr. of Oral Arg. 14.
That the University itself no longer presses the Establishment
Clause claim is some indication that it lacks force;
but as the Court of Appeals rested its judgment on the
point and our dissenting colleagues would find it determinative,
it must be addressed.
The Court of Appeals ruled that withholding SAF support
from Wide Awake contravened the Speech Clause of the
First Amendment, but proceeded to hold that the University's
action was justified by the necessity of avoiding a
violation of the Establishment Clause, an interest it
found compelling. 18 F.3d, at 281. Recognizing that
this Court has regularly "sanctioned awards of
direct nonmonetary benefits to religious groups where
the government has created open fora to which all similarly
situated organizations are invited," 18 F.3d, at
286 (citing Widmar, 454 U.S., at 277 ), the Fourth Circuit
asserted that direct monetary subsidization of religious
organizations and projects is "a beast of an entirely
different color," 18 F.3d, at 286. The court declared
that the Establishment Clause would not permit the use
of public funds to support "`a specifically religious
activity in an otherwise substantially secular [ ROSENBERGER
v. UNIVERSITY OF VIRGINIA, ___ U.S. ___ (1995) , 18]
setting.'" Id., at 285 (quoting Hunt v. McNair,
413 U.S. 734, 743 (1973) (emphasis deleted)). It reasoned
that because Wide Awake is "a journal pervasively
devoted to the discussion and advancement of an avowedly
Christian theological and personal philosophy,"
the University's provision of SAF funds for its publication
would "send an unmistakably clear signal that the
University of Virginia supports Christian values and
wishes to promote the wide promulgation of such values."
18 F.3d, at 286.
If there is to be assurance that the Establishment
Clause retains its force in guarding against those governmental
actions it was intended to prohibit, we must in each
case inquire first into the purpose and object of the
governmental action in question and then into the practical
details of the program's operation. Before turning to
these matters, however, we can set forth certain general
principles that must bear upon our determination.
A central lesson of our decisions is that
a significant factor in upholding governmental programs
in the face of Establishment Clause attack is their
neutrality towards religion. We have decided a series
of cases addressing the receipt of government benefits
where religion or religious views are implicated in
some degree. The first case in our modern Establishment
Clause jurisprudence was Everson v. Board of Ed. of
Ewing, 330 U.S. 1 (1947). There we cautioned that in
enforcing the prohibition against laws respecting establishment
of religion, we must "be sure that we do not inadvertently
prohibit [the government] from extending its general
state law benefits to all its citizens without regard
to their religious belief." Id., at 16. We have
held that the guarantee of neutrality is respected,
not offended, when the government, following neutral
criteria and evenhanded policies, extends benefits to
recipients whose ideologies and viewpoints, including
religious ones, are [ ROSENBERGER v. UNIVERSITY OF VIRGINIA,
___ U.S. ___ (1995) , 19] broad and diverse. See Board
of Ed. of Kiryas Joel Village School Dist. v. Grumet,
512 U.S. ___, ___ (1994) (slip op., at 16) (SOUTER,
J.) ("[T]he principle is well grounded in our case
law [and] we have frequently relied explicitly on the
general availability of any benefit provided religious
groups or individuals in turning aside Establishment
Clause challenges"); Witters v. Washington Dept.
of Services for Blind, 474 U.S. 481, 487 -488 (1986);
Mueller v. Allen, 463 U.S. 388, 398 -399 (1983); Widmar,
454 U.S., at 274 -275. More than once have we rejected
the position that the Establishment Clause even justifies,
much less requires, a refusal to extend free speech
rights to religious speakers who participate in broad-reaching
government programs neutral in design. See Lamb's Chapel,
508 U.S., at ___; Mergens, 496 U.S., at 248 , 252; Widmar,
supra, at 274-275.
The governmental program here is neutral
toward religion. There is no suggestion that the University
created it to advance religion or adopted some ingenious
device with the purpose of aiding a religious cause.
The object of the SAF is 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. The University's
SAF Guidelines have a separate classification for, and
do not make third-party payments on behalf of, "religious
organizations," which are those "whose purpose
is to practice a devotion to an acknowledged ultimate
reality or deity." Pet. for Cert. 66a. The category
of support here is for "student news, information,
opinion, entertainment, or academic communications media
groups," of which Wide Awake was 1 of 15 in the
1990 school year. WAP did not seek a subsidy because
of its Christian editorial viewpoint; it sought funding
as a student journal, which it was.
The neutrality of the program distinguishes
the student fees from a tax levied for the direct support
of [ ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___ U.S.
___ (1995) , 20] a church or group of churches. A tax
of that sort, of course, would run contrary to Establishment
Clause concerns dating from the earliest days of the
Republic. The apprehensions of our predecessors involved
the levying of taxes upon the public for the sole and
exclusive purpose of establishing and supporting specific
sects. The exaction here, by contrast, is a student
activity fee designed to reflect the reality that student
life in its many dimensions includes the necessity of
wide-ranging speech and inquiry and that student expression
is an integral part of the University's educational
mission. The fee is mandatory, and we do not have before
us the question whether an objecting student has the
First Amendment right to demand a pro rata return to
the extent the fee is expended for speech to which he
or she does not subscribe. See Keller v. State Bar of
California, 496 U.S. 1, 15 -16 (1990); Abood v. Detroit
Board of Ed., 431 U.S. 209, 235 -236 (1977). We must
treat it, then, as an exaction upon the students. But
the $14 paid each semester by the students is not a
general tax designed to raise revenue for the University.
See United States v. Butler, 297 U.S. 1, 61 (1936) ("A
tax, in the general understanding of the term, and as
used in the Constitution, signifies an exaction for
the support of the Government"); see also Head
Money Cases, 112 U.S. 580, 595-596 (1884). The SAF cannot
be used for unlimited purposes, much less the illegitimate
purpose of supporting one religion. Much like the arrangement
in Widmar, the money goes to a special fund from which
any group of students with CIO status can draw for purposes
consistent with the University's educational mission;
and to the extent the student is interested in speech,
withdrawal is permitted to cover the whole spectrum
of speech, whether it manifests a religious view, an
antireligious view, or neither. Our decision, then,
cannot be read as addressing an expenditure from a general
tax fund. Here, the [ ROSENBERGER v. UNIVERSITY OF VIRGINIA,
___ U.S. ___ (1995) , 21] disbursements from the fund
go to private contractors for the cost of printing that
which is protected under the Speech Clause of the First
Amendment. This is a far cry from a general public assessment
designed and effected to provide financial support for
a church.
Government neutrality is apparent in the
State's overall scheme in a further meaningful respect.
The program respects the critical difference "between
government speech endorsing religion, which the Establishment
Clause forbids, and private speech endorsing religion,
which the Free Speech and Free Exercise Clauses protect."
Mergens, supra, at 250 (opinion of O'CONNOR, J.). In
this case, "the government has not willfully fostered
or encouraged" any mistaken impression that the
student newspapers speak for the University. Capitol
Square Review and Advisory Bd. v. Pinette, ante, at
__ (slip op., at 10). The University has taken pains
to disassociate itself from the private speech involved
in this case. The Court of Appeals' apparent concern
that Wide Awake's religious orientation would be attributed
to the University is not a plausible fear, and there
is no real likelihood that the speech in question is
being either endorsed or coerced by the State, see Lee
v. Weisman, 505 U.S. 577 , ___ (1992); Witters, supra,
at 489 (citing Lynch v. Donnelly, 465 U.S. 668, 688
(1984) (O'CONNOR, J., concurring)); see also Witters,
supra, at 493 (O'CONNOR, J., concurring in part and
concurring in judgment) (citing Lynch, supra, at 690
(O'CONNOR, J., concurring)).
The Court of Appeals (and the dissent)
are correct to extract from our decisions the principle
that we have recognized special Establishment Clause
dangers where the government makes direct money payments
to sectarian institutions, citing Roemer v. Board of
Pub. Works of Md., 426 U.S. 736, 747 (1976); Bowen v.
Kendrick, 487 U.S. 589, 614 -615 (1988); Hunt v. McNair,
413 U.S., at 742 ; Tilton, 403 U.S., at 679 -680; [
ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___ U.S. ___
(1995) , 22] Board of Ed. of Central School Dist. No.
1 v. Allen, 392 U.S. 236 (1968). The error is not in
identifying the principle but in believing that it controls
this case. Even assuming that WAP is no different from
a church and that its speech is the same as the religious
exercises conducted in Widmar (two points much in doubt),
the Court of Appeals decided a case that was, in essence,
not before it, and the dissent would have us do the
same. We do not confront a case where, even under a
neutral program that includes nonsectarian recipients,
the government is making direct money payments to an
institution or group that is engaged in religious activity.
Neither the Court of Appeals nor the dissent, we believe,
takes sufficient cognizance of the undisputed fact that
no public funds flow directly to WAP's coffers.
It does not violate the Establishment
Clause for a public university to grant access to its
facilities on a religion-neutral basis to a wide spectrum
of student groups, including groups which use meeting
rooms for sectarian activities, accompanied by some
devotional exercises. See Widmar, 454 U.S., at 269 ;
Mergens, 496 U.S., at 252 . This is so even where the
upkeep, maintenance, and repair of the facilities attributed
to those uses is paid from a student activities fund
to which students are required to contribute. Widmar,
supra, at 265. The government usually acts by spending
money. Even the provision of a meeting room, as in Mergens
and Widmar, involved governmental expenditure, if only
in the form of electricity and heating or cooling costs.
The error made by the Court of Appeals, as well as by
the dissent, lies in focusing on the money that is undoubtedly
expended by the government, rather than on the nature
of the benefit received by the recipient. If the expenditure
of governmental funds is prohibited whenever those funds
pay for a service that is, pursuant to a religion-neutral
program, used by a group for sectarian purposes, then
Widmar, Mergens, [ ROSENBERGER v. UNIVERSITY OF VIRGINIA,
___ U.S. ___ (1995) , 23] and Lamb's Chapel would have
to be overruled. Given our holdings in these cases,
it follows that a public university may maintain its
own computer facility and give student groups access
to that facility, including the use of the printers,
on a religion neutral, say first-come-first-served,
basis. If a religious student organization obtained
access on that religion-neutral basis and used a computer
to compose or a printer or copy machine to print speech
with a religious content or viewpoint, the State's action
in providing the group with access would no more violate
the Establishment Clause than would giving those groups
access to an assembly hall. See Lamb's Chapel v. Center
Moriches School Dist., 508 U.S. ___ (1993); Widmar,
supra; Mergens, supra. There is no difference in logic
or principle, and no difference of constitutional significance,
between a school using its funds to operate a facility
to which students have access, and a school paying a
third-party contractor to operate the facility on its
behalf. The latter occurs here. The University provides
printing services to a broad spectrum of student newspapers
qualified as CIOs by reason of their officers and membership.
Any benefit to religion is incidental to the government's
provision of secular services for secular purposes on
a religion-neutral basis. Printing is a routine, secular,
and recurring attribute of student life.
By paying outside printers, the University
in fact attains a further degree of separation from
the student publication, for it avoids the duties of
supervision, escapes the costs of upkeep, repair, and
replacement attributable to student use, and has a clear
record of costs. As a result, and as in Widmar, the
University can charge the SAF, and not the taxpayers
as a whole, for the discrete activity in question. It
would be formalistic for us to say that the University
must forfeit these advantages and provide the services
itself in order to comply with the Establishment Clause.
It is, of [ ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___
U.S. ___ (1995) , 24] course, true that if the State
pays a church's bills it is subsidizing it, and we must
guard against this abuse. That is not a danger here,
based on the considerations we have advanced and for
the additional reason that the student publication is
not a religious institution, at least in the usual sense
of that term as used in our case law, and it is not
a religious organization as used in the University's
own regulations. It is instead a publication involved
in a pure forum for the expression of ideas, ideas that
would be both incomplete and chilled were the Constitution
to be interpreted to require that state officials and
courts scan the publication to ferret out views that
principally manifest a belief in a divine being.
Were the dissent's view to become law,
it would require the University, in order to avoid a
constitutional violation, to scrutinize the content
of student speech, lest the expression in question -
speech otherwise protected by the Constitution - contain
too great a religious content. The dissent, in fact,
anticipates such censorship as "crucial" in
distinguishing between "works characterized by
the evangelism of Wide Awake and writing that merely
happens to express views that a given religion might
approve." Post, at 36. That eventuality raises
the specter of governmental censorship, to ensure that
all student writings and publications meet some baseline
standard of secular orthodoxy. To impose that standard
on student speech at a university is to imperil the
very sources of free speech and expression. As we recognized
in Widmar, official censorship would be far more inconsistent
with the Establishment Clause's dictates than would
governmental provision of secular printing services
on a religion-blind basis.
"[T]he dissent fails to establish
that the distinction [between `religious' speech and
speech `about' religion] has intelligible content. There
is no indication when `singing hymns, reading scripture,
and teaching [ ROSENBERGER v. UNIVERSITY OF VIRGINIA,
___ U.S. ___ (1995) , 25] biblical principles' cease
to be `singing, teaching, and reading' - all apparently
forms of `speech,' despite their religious subject matter
and become unprotected `worship.' . . .
"[E]ven if the distinction drew an
arguably principled line, it is highly doubtful that
it would lie within the judicial competence to administer.
Merely to draw the distinction would require the university
- and ultimately the courts - to inquire into the significance
of words and practices to different religious faiths,
and in varying circumstances by the same faith. Such
inquiries would tend inevitably to entangle the State
with religion in a manner forbidden by our cases. E.g.,
Walz [v. Tax Comm'n of New York City, 397 U.S. 664 (1970)]."
454 U.S., at 269 -270, n. 6 (citations omitted).
* * *
To obey the Establishment Clause, it was
not necessary for the University to deny eligibility
to student publications because of their viewpoint.
The neutrality commanded of the State by the separate
Clauses of the First Amendment was compromised by the
University's course of action. The viewpoint discrimination
inherent in the University's regulation required public
officials to scan and interpret student publications
to discern their underlying philosophic assumptions
respecting religious theory and belief. That course
of action was a denial of the right of free speech and
would risk fostering a pervasive bias or hostility to
religion, which could undermine the very neutrality
the Establishment Clause requires. There is no Establishment
Clause violation in the University's honoring its duties
under the Free Speech Clause.
The judgment of the Court of Appeals must be, and is,
reversed.
It is so ordered. [ ROSENBERGER v. UNIVERSITY
OF VIRGINIA, ___ U.S. ___ (1995) , 1]
JUSTICE O'CONNOR, concurring.
"We have time and again held that
the government generally may not treat people differently
based on the God or gods they worship, or don't worship."
Board of Ed. of Kiryas Joel Village School Dist. v.
Grumet, 512 U.S. ___, ___ (1994) (slip op., at 4) (O'CONNOR,
J., concurring in part and concurring in judgment).
This insistence on government neutrality toward religion
explains why we have held that schools may not discriminate
against religious groups by denying them equal access
to facilities that the schools make available to all.
See Lamb's Chapel v. Center Moriches Union Free School
Dist., 508 U.S. ___ (1993); Widmar v. Vincent, 454 U.S.
263 (1981). Withholding access would leave an impermissible
perception that religious activities are disfavored:
"the message is one of neutrality rather than endorsement;
if a State refused to let religious groups use facilities
open to others, then it would demonstrate not neutrality
but hostility toward religion." Board of Ed. of
Westside Community Schools (Dist. 66) v. Mergens, 496
U.S. 226, 248 (1990) (plurality opinion). "The
Religion Clauses prohibit the government from favoring
religion, but they provide no warrant for discriminating
against religion." Kiryas Joel, supra, [ ROSENBERGER
v. UNIVERSITY OF VIRGINIA, ___ U.S. ___ (1995) , 2]
at ___ (slip op., at 7) (O'CONNOR, J.). Neutrality,
in both form and effect, is one hallmark of the Establishment
Clause.
As JUSTICE SOUTER demonstrates, however,
post, at 6-10, there exists another axiom in the history
and precedent of the Establishment Clause. "Public
funds may not be used to endorse the religious message."
Bowen v. Kendrick, 487 U.S. 589, 642 (1988) (Blackmun,
J., dissenting); see also id., at 622 (O'CONNOR, J.,
concurring). Our cases have permitted some government
funding of secular functions performed by sectarian
organizations. See, e. g., id., at 617 (funding for
sex education); Roemer v. Board of Pub. Works of Md.,
426 U.S. 736, 741 (1976) (cash grant to colleges not
to be used for "sectarian purposes"); Bradfield
v. Roberts, 175 U.S. 291, 299-300 (1899) (funding of
health care for indigent patients). These decisions,
however, provide no precedent for the use of public
funds to finance religious activities.
This case lies at the intersection of the principle
of government neutrality and the prohibition on state
funding of religious activities. It is clear that the
University has established a generally applicable program
to encourage the free exchange of ideas by its students,
an expressive marketplace that includes some 15 student
publications with predictably divergent viewpoints.
It is equally clear that petitioners' viewpoint is religious
and that publication of Wide Awake is a religious activity,
under both the University's regulation and a fair reading
of our precedents. Not to finance Wide Awake, according
to petitioners, violates the principle of neutrality
by sending a message of hostility toward religion. To
finance Wide Awake, argues the University, violates
the prohibition on direct state funding of religious
activities.
When two bedrock principles so conflict,
understandably neither can provide the definitive answer.
Reliance [ ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___
U.S. ___ (1995) , 3] on categorical platitudes is unavailing.
Resolution instead depends on the hard task of judging
- sifting through the details and determining whether
the challenged program offends the Establishment Clause.
Such judgment requires courts to draw lines, sometimes
quite fine, based on the particular facts of each case.
See Lee v. Weisman, 505 U.S. 577, 598 (1992) ("Our
jurisprudence in this area is of necessity one of line-drawing").
As Justice Holmes observed in a different context: "Neither
are we troubled by the question where to draw the line.
That is the question in pretty much everything worth
arguing in the law. Day and night, youth and age are
only types." Irwin v. Gavit, 268 U.S. 161, 168
(1925) (citation omitted).
In Witters v. Washington Dept. of Services
for Blind, 474 U.S. 481 (1986), for example, we unanimously
held that the State may, through a generally applicable
financial aid program, pay a blind student's tuition
at a sectarian theological institution. The Court so
held, however, only after emphasizing that "vocational
assistance provided under the Washington program is
paid directly to the student, who transmits it to the
educational institution of his or her choice."
Id., at 487. The benefit to religion under the program,
therefore, is akin to a public servant contributing
her government paycheck to the church. Ibid. We thus
resolved the conflict between the neutrality principle
and the funding prohibition, not by permitting one to
trump the other, but by relying on the elements of choice
peculiar to the facts of that case: "The aid to
religion at issue here is the result of petitioner's
private choice. No reasonable observer is likely to
draw from the facts before us an inference that the
State itself is endorsing a religious practice or belief."
Id., at 493 (O'CONNOR, J., concurring in part and concurring
in judgment). See also Zobrest v. Catalina Foothills
School Dist., 509 U.S. 1 , ___ (1993) (slip op., at
7-8). [ ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___ U.S.
___ (1995) , 4]
The need for careful judgment and fine
distinctions presents itself even in extreme cases.
Everson v. Board of Ed. of Ewing, 330 U.S. 1 (1947),
provided perhaps the strongest exposition of the no-funding
principle: "No tax in any amount, large or small,
can be levied to support any religious activities or
institutions, whatever they may be called, or whatever
form they may adopt to teach or practice religion."
Id., at 16. Yet the Court approved the use of public
funds, in a general program, to reimburse parents for
their children's bus fares to attend Catholic schools.
Id., at 17-18. Although some would cynically dismiss
the Court's disposition as inconsistent with its protestations,
see id., at 19 (Jackson, J., dissenting) ("the
most fitting precedent is that of Julia who, according
to Byron's reports, `whispering "I will ne'er consent,"
- consented'"), the decision reflected the need
to rely on careful judgment - not simple categories
- when two principles, of equal historical and jurisprudential
pedigree, come into unavoidable conflict.
So it is in this case. The nature of the
dispute does not admit of categorical answers, nor should
any be inferred from the Court's decision today, see
ante, at 18. Instead, certain considerations specific
to the program at issue lead me to conclude that by
providing the same assistance to Wide Awake that it
does to other publications, the University would not
be endorsing the magazine's religious perspective.
First, the student organizations, at the
University's insistence, remain strictly independent
of the University. The University's agreement with the
Contracted Independent Organizations (CIO) - i. e.,
student groups provides:
"The University is a Virginia public
corporation and the CIO is not part of that corporation,
but rather exists and operates independently of the
University. . . . The parties understand and agree that
this Agreement is the only source of any control the
[ ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___ U.S. ___
(1995) , 5] University may have over the CIO or its
activities . . . ." App. 27.
And the agreement requires that student
organizations include in every letter, contract, publication,
or other written materials the following disclaimer:
"Although this organization has members
who are University of Virginia students (faculty) (employees),
the organization is independent of the corporation which
is the University and which is not responsible for the
organization's contracts, acts or omissions." Id.,
at 28.
Any reader of Wide Awake would be on notice
of the publication's independence from the University.
Cf. Widmar v. Vincent, 454 U.S., at 274 , n. 14.
Second, financial assistance is distributed in a manner
that ensures its use only for permissible purposes.
A student organization seeking assistance must submit
disbursement requests; if approved, the funds are paid
directly to the third-party vendor and do not pass through
the organization's coffers. This safeguard accompanying
the University's financial assistance, when provided
to a publication with a religious viewpoint such as
Wide Awake, ensures that the funds are used only to
further the University's purpose in maintaining a free
and robust marketplace of ideas, from whatever perspective.
This feature also makes this case analogous to a school
providing equal access to a generally available printing
press (or other physical facilities), ante, at 23, and
unlike a block grant to religious organizations.
Third, assistance is provided to the religious
publication in a context that makes improbable any perception
of government endorsement of the religious message.
Wide Awake does not exist in a vacuum. It competes with
15 other magazines and newspapers for advertising and
readership. The widely divergent viewpoints of these
many purveyors of opinion, all supported on an [ ROSENBERGER
v. UNIVERSITY OF VIRGINIA, ___ U.S. ___ (1995) , 6]
equal basis by the University, significantly diminishes
the danger that the message of any one publication is
perceived as endorsed by the University. Besides the
general news publications, for example, the University
has provided support to The Yellow Journal, a humor
magazine that has targeted Christianity as a subject
of satire, and Al-Salam, a publication to "promote
a better understanding of Islam to the University Community,"
App. 92. Given this wide array of non-religious, anti-religious
and competing religious viewpoints in the forum supported
by the University, any perception that the University
endorses one particular viewpoint would be illogical.
This is not the harder case where religious speech threatens
to dominate the forum. Cf. Capitol Square Review and
Advisory Bd. v. Pinette, ante, at ___ (O'CONNOR, J.,
concurring in part and concurring in judgment); Mergens,
496 U.S., at 275 .
Finally, although the question is not
presented here, I note the possibility that the student
fee is susceptible to a Free Speech Clause challenge
by an objecting student that she should not be compelled
to pay for speech with which she disagrees. See, e.
g., Keller v. State Bar of California, 496 U.S. 1, 15
(1990); Abood v. Detroit Board of Education, 431 U.S.
209, 236 (1977). There currently exists a split in the
lower courts as to whether such a challenge would be
successful. Compare Hays County Guardian v. Supple,
969 F.2d 111, 123 (CA5 1992), cert. denied 506 U.S.
___ (1993); Kania v. Fordham, 702 F.2d 475, 480 (CA4
1983); Good v. Associated Students of Univ. of Wash.,
86 Wash. 2d 94, 105-106, 542 P.2d 762, 769 (1975) (en
banc), with Smith v. Regents of Univ. of Cal., 4 Cal.
4th 843, 863-864, 844 P.2d 500, 513-514, cert. denied,
510 U.S. ___ (1993). While the Court does not resolve
the question here, see ante, at 20, the existence of
such an opt-out possibility not available to citizens
generally, see Abood, supra, at 259, n. 13 (Powell,
J., concurring in [ ROSENBERGER v. UNIVERSITY OF VIRGINIA,
___ U.S. ___ (1995) , 7] judgment), provides a potential
basis for distinguishing proceeds of the student fees
in this case from proceeds of the general assessments
in support of religion that lie at the core of the prohibition
against religious funding, see ante, at 19-20; post,
at 1-3 (THOMAS, J., concurring); post, at 6-10 (SOUTER,
J., dissenting), and from government funds generally.
Unlike monies dispensed from state or federal treasuries,
the Student Activities Fund is collected from students
who themselves administer the fund and select qualifying
recipients only from among those who originally paid
the fee. The government neither pays into nor draws
from this common pool, and a fee of this sort appears
conducive to granting individual students proportional
refunds. The Student Activities Fund, then, represents
not government resources, whether derived from tax revenue,
sales of assets, or otherwise, but a fund that simply
belongs to the students.
The Court's decision today therefore neither
trumpets the supremacy of the neutrality principle nor
signals the demise of the funding prohibition in Establishment
Clause jurisprudence. As I observed last Term, "[e]xperience
proves that the Establishment Clause, like the Free
Speech Clause, cannot easily be reduced to a single
test." Kiryas Joel, 512 U.S., at ___ (slip op.,
at 10) (O'CONNOR, J., concurring in part and concurring
in judgment). When bedrock principles collide, they
test the limits of categorical obstinacy and expose
the flaws and dangers of a Grand Unified Theory that
may turn out to be neither grand nor unified. The Court
today does only what courts must do in many Establishment
Clause cases - focus on specific features of a particular
government action to ensure that it does not violate
the Constitution. By withholding from Wide Awake assistance
that the University provides generally to all other
student publications, the University has discriminated
on the basis of the magazine's religious viewpoint [
ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___ U.S. ___
(1995) , 8] in violation of the Free Speech Clause.
And particular features of the University's program
- such as the explicit disclaimer, the disbursement
of funds directly to third-party vendors, the vigorous
nature of the forum at issue, and the possibility for
objecting students to opt out - convince me that providing
such assistance in this case would not carry the danger
of impermissible use of public funds to endorse Wide
Awake's religious message.
Subject to these comments, I join the
opinion of the Court. [ ROSENBERGER v. UNIVERSITY OF
VIRGINIA, ___ U.S. ___ (1995) , 1]
JUSTICE THOMAS, concurring.
I agree with the Court's opinion and join
it in full, but I write separately to express my disagreement
with the historical analysis put forward by the dissent.
Although the dissent starts down the right path in consulting
the original meaning of the Establishment Clause, its
misleading application of history yields a principle
that is inconsistent with our Nation's long tradition
of allowing religious adherents to participate on equal
terms in neutral government programs.
Even assuming that the Virginia debate
on the so-called "Assessment Controversy"
was indicative of the principles embodied in the Establishment
Clause, this incident hardly compels the dissent's conclusion
that government must actively discriminate against religion.
The dissent's historical discussion glosses over the
fundamental characteristic of the Virginia assessment
bill that sparked the controversy: The assessment was
to be imposed for the support of clergy in the performance
of their function of teaching religion. Thus, the "Bill
Establishing a Provision for Teachers of the Christian
Religion" provided for the collection of a specific
tax, the proceeds of which were to be appropriated "by
the Vestries, Elders, or Directors of each [ ROSENBERGER
v. UNIVERSITY OF VIRGINIA, ___ U.S. ___ (1995) , 2]
religious society . . . to a provision for a Minister
or Teacher of the Gospel of their denomination, or the
providing places of divine worship, and to none other
use whatsoever." See Everson v. Board of Ed. of
Ewing, 330 U.S. 1, 74 (1947) (appendix to dissent of
Rutledge, J.). 1 [ ROSENBERGER v. UNIVERSITY OF VIRGINIA,
___ U.S. ___ (1995) , 3]
James Madison's Memorial and Remonstrance
Against Religious Assessments (hereinafter Madison's
Remonstrance) must be understood in this context. Contrary
to the dissent's suggestion, Madison's objection to
the assessment bill did not rest on the premise that
religious entities may never participate on equal terms
in neutral government programs. Nor did Madison embrace
the argument that forms the linchpin of the dissent:
that monetary subsidies are constitutionally different
from other neutral benefits programs. Instead, Madison's
comments are more consistent with the neutrality principle
that the dissent inexplicably discards. According to
Madison, the Virginia assessment was flawed because
it "violate[d] that equality which ought to be
the basis of every law." Madison's Remonstrance
4, reprinted in Everson, supra, at 66 (appendix to
dissent of Rutledge, J.). The assessment violated the
"equality" principle not because it allowed
religious groups to participate in a generally available
government program, but because the bill singled out
religious entities for special benefits. See ibid. (arguing
that the assessment violated the equality principle
"by subjecting some to peculiar burdens" and
"by granting to others peculiar exemptions").
Legal commentators have disagreed about
the historical lesson to take from the Assessment Controversy.
For some, the experience in Virginia is consistent with
the view that the Framers saw the Establishment [ ROSENBERGER
v. UNIVERSITY OF VIRGINIA, ___ U.S. ___ (1995) , 4]
Clause simply as a prohibition on governmental preferences
for some religious faiths over others. See R. Cord,
Separation of Church and State: Historical Fact and
Current Fiction 20-23 (1982); Smith, Getting Off on
the Wrong Foot and Back on Again: A Reexamination of
the History of the Framing of the Religion Clauses of
the First Amendment and a Critique of the Reynolds and
Everson Decisions, 20 Wake Forest L. Rev. 569, 590-591
(1984). Other commentators have rejected this view,
concluding that the Establishment Clause forbids not
only government preferences for some religious sects
over others, but also government preferences for religion
over irreligion. See, e.g., Laycock, "Nonpreferential"
Aid to Religion: A False Claim About Original Intent,
27 Wm. & Mary L. Rev. 875, 875 (1986).
I find much to commend the former view.
Madison's focus on the preferential nature of the assessment
was not restricted to the fourth paragraph of the Remonstrance
discussed above. The funding provided by the Virginia
assessment was to be extended only to Christian sects,
and the Remonstrance seized on this defect:
"Who does not see that the same authority
which can establish Christianity, in exclusion of all
other Religions, may establish with the same ease any
particular sect of Christians, in exclusion of all other
Sects." Madison's Remonstrance 3, reprinted in
Everson, supra, at 65.
In addition to the third and fourth paragraphs
of the Remonstrance, "Madison's seventh, ninth,
eleventh, and twelfth arguments all speak, in some way,
to the same intolerance, bigotry, unenlightenment, and
persecution that had generally resulted from previous
exclusive religious establishments." Cord, supra,
at 21. The conclusion that Madison saw the principle
of nonestablishment as barring governmental preferences
for particular religious faiths seems especially clear
in light [ ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___
U.S. ___ (1995) , 5] of statements he made in the more-relevant
context of the House debates on the First Amendment.
See Wallace v. Jaffree, 472 U.S. 38, 98 (1985) (REHNQUIST,
J., dissenting) (Madison's views "as reflected
by actions on the floor of the House in 1789, [indicate]
that he saw the [First] Amendment as designed to prohibit
the establishment of a national religion, and perhaps
to prevent discrimination among sects," but not
"as requiring neutrality on the part of government
between religion and irreligion"). Moreover, even
if more extreme notions of the separation of church
and state can be attributed to Madison, many of them
clearly stem from "arguments reflecting the concepts
of natural law, natural rights, and the social contract
between government and a civil society," Cord,
supra, at 22, rather than the principle of nonestablishment
in the Constitution. In any event, the views of one
man do not establish the original understanding of the
First Amendment.
But resolution of this debate is not necessary to decide
this case. Under any understanding of the Assessment
Controversy, the history cited by the dissent cannot
support the conclusion that the Establishment Clause
"categorically condemn[s] state programs directly
aiding religious activity" when that aid is part
of a neutral program available to a wide array of beneficiaries.
Post, at 13. Even if Madison believed that the principle
of nonestablishment of religion precluded government
financial support for religion per se (in the sense
of government benefits specifically targeting religion),
there is no indication that at the time of the framing
he took the dissent's extreme view that the government
must discriminate against religious adherents by excluding
them from more generally available financial subsidies.
2 [ ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___ U.S.
___ (1995) , 6]
In fact, Madison's own early legislative
proposals cut against the dissent's suggestion. In 1776,
when Virginia's Revolutionary Convention was drafting
its Declaration of Rights, Madison prepared an amendment
that would have disestablished the Anglican Church.
This amendment (which went too far for the Convention
and was not adopted) is not nearly as sweeping as the
dissent's version of disestablishment; Madison merely
wanted the Convention to declare that "no man or
class of men ought, on account of religion[,] to be
invested with peculiar emoluments or privileges . .
. ." Madison's Amendments to the Declaration of
Rights (May 29-June 12, 1776), in 1 Papers of James
Madison 174 (W. Hutchinson & W. Rachal eds. 1962)
(emphasis added). Likewise, Madison's Remonstrance stressed
that "just government" is "best supported
by protecting every citizen in the enjoyment of his
Religion with the same equal hand which protects his
person and his property; by neither invading the equal
rights of any Sect, nor suffering any Sect to invade
those of another." Madison's Remonstrance 8,
reprinted in Everson, supra, at 68; cf. Terrett v. Taylor,
9 Cranch 43, 49 (1815) (holding that the Virginia constitution
did not prevent the government from "aiding the
votaries of every sect to . . . perform their own religious
duties," or from "establishing funds for the
support of ministers, for public charities, for the
endowment of churches, or for the [ ROSENBERGER v. UNIVERSITY
OF VIRGINIA, ___ U.S. ___ (1995) , 7] sepulture of the
dead").
Stripped of its flawed historical premise,
the dissent's argument is reduced to the claim that
our Establishment Clause jurisprudence permits neutrality
in the context of access to government facilities but
requires discrimination in access to government funds.
The dissent purports to locate the prohibition against
"direct public funding" at the "heart"
of the Establishment Clause, see post, at 17, but this
conclusion fails to confront historical examples of
funding that date back to the time of the founding.
To take but one famous example, both Houses of the First
Congress elected chaplains, see S. Jour., 1st Cong.,
1st Sess., 10 (1820 ed.); H. R. Jour., 1st Cong., 1st
Sess., 26 (1826 ed.), and that Congress enacted legislation
providing for an annual salary of $500 to be paid out
of the Treasury, see Act of Sept. 22, 1789, ch. 17,
4, 1 Stat. 70, 71. Madison himself was a member of the
committee that recommended the chaplain system in the
House. See H. R. Jour., at 11-12; 1 Annals of Cong.
891 (1789); Cord, supra, at 25. This same system of
"direct public funding" of congressional chaplains
has "continued without interruption ever since
that early session of Congress." Marsh v. Chambers,
463 U.S. 783, 788 (1983). 3 [ ROSENBERGER v. UNIVERSITY
OF VIRGINIA, ___ U.S. ___ (1995) , 8]
The historical evidence of government
support for religious entities through property tax
exemptions is also overwhelming. As the dissent concedes,
property tax exemptions for religious bodies "have
been in place for over 200 years without disruption
to the interests represented by the Establishment Clause."
Post, at 20, n. 7 (citing Walz v. Tax Comm'n of New
York City, 397 U.S. 664, 676 -680 (1970)). 4 In my view,
the dissent's acceptance of this tradition puts to rest
the notion that the Establishment Clause bars monetary
aid to religious groups even when the aid is equally
available to other groups. A tax exemption in many cases
is economically and functionally indistinguishable from
a direct monetary subsidy. 5 In one instance, the government
relieves [ ROSENBERGER v. UNIVERSITY OF VIRGINIA, ___
U.S. ___ (1995) , 9] religious entities (along with
others) of a generally applicable tax; in the other,
it relieves religious entities (along with others) of
some or all of the burden of that tax by returning it
in the form of a cash subsidy. Whether the benefit is
provided at the front or back end of the taxation process,
the financial aid to religious [ ROSENBERGER v. UNIVERSITY
OF VIRGINIA, ___ U.S. ___ (1995) , 10] groups is undeniable.
The analysis under the Establishment Clause must also
be the same: "Few concepts are more deeply embedded
in the fabric of our national life, beginning with pre-Revolutionary
colonial times, than for the government to exercise
at the very least this kind of benevolent neutrality
toward churches and religious exercise . . . ."
Walz, supra, at 676-677.
Consistent application of |