In Rosenberger v. Rector and Visitors of the University of Virginia (1995), the U.S. Supreme Court held that the actions of university officials in denying funding to help pay for the publishing costs of Wide Awake: A Christian Perspective at the University of Virginia constituted viewpoint discrimination in violation of the Free Speech Clause of the First Amendment. In light of the significance of Rosenberger with regard to the treatment of religious speech as a subset of free speech, this entry examines its background and judicial analyses.
Facts of the Case
The Student Activities Fund at the University of Virginia was built from mandatory student fees and was designed to support a variety of extracurricular student activities. Any organization that wished to receive funds had to become a “Contracted Independent Organization” (CIO) and had to include in all written materials to third parties that the group was independent of the university and that the university was not responsible for the Contracted Independent Organization. Fund guidelines governed and controlled the disbursement of monies to Contracted Independent Organizations. The guidelines stated that the purpose of the fund was to support a range of extracurricular activities and that the money had to be administered in a manner consistent with the education purpose of the university as well as with state and federal law.
Ronald Rosenberger was a University of Virginia student who created Wide Awake Productions as a CIO. The group published a magazine of religious and philosophical expression in order to facilitate discussion within an atmosphere of tolerance of Christian viewpoints. In addition, the group published a newspaper, the Christian viewpoint of which was clear from the first issue. The fact that Wide Awake Productions was a valid CIO is important, because if the group had been a religious organization, it would not have qualified for Contracted Independent Organization status under fund guidelines. These guidelines stipulated that religious organizations were those whose purposes were to practice devotion to acknowledge ultimate realities or deities.
When the student requested monies from the fund to subsidize the publication of Wide Awake, officials rejected his application for aid on the ground that the magazine was a religious activity pursuant to its guidelines. The student then filed suit on behalf of Wide Awake Productions, claiming that the denial of funding solely on the basis of the publication’s religious editorial viewpoint violated the group’s rights to freedom of the press and speech, the right to free exercise of religion, and equal protection of the law.
A federal trial court, in granting the university’s motion for summary judgment, was of the opinion that that the denial of support was not viewpoint discrimination and that officials’ concern about the group’s religious activities was a sufficient justification to deny the request for funds. On appeal, the Fourth Circuit affirmed that university officials did not violate the group’s rights, because they had a compelling interest in preserving strict separation of church and state.
The Supreme Court’s Ruling
On further review, in a five-to-four judgment authored by Justice Kennedy, the Supreme Court reversed in favor of the Wide Awake Productions. The Court ruled that the denial of funding for the publication imposed a financial burden on the group’s speech amounting to viewpoint discrimination. Acknowledging that the fund was a forum, the Court compared this case with a similar situation in Lamb’s Chapel v. Center Moriches Union Free School District (1993), wherein it found that a school board that made meeting space available to a large variety of groups could not exclude religious organizations based on the religious nature of their speech, because this amounted to viewpoint discrimination. The Court reasoned in Rosenberger that because funding was made available to groups for other journalistic pursuits, it had to do the same for the publications of other organizations whose content and subject matter were religious in nature.
The Supreme Court next rejected the university’s claim that the guidelines and the accompanying restrictions were based on content, not viewpoint. The Court responded that with regard to religion, while the distinction between content and viewpoint is difficult to distinguish, religion served as a perspective and a standpoint for discussion. Consequently, the Court was convinced that university officials discriminated against the group due to its views, not the content of its publication. In discussing this distinction between content and viewpoint discrimination, the Court explained that content discrimination could be permissible if it preserved the purposes of the limited open forum but that viewpoint discrimination is impermissible when the speech is within the forum’s limitation.
The Supreme Court then reviewed the university’s claim that because Rosenberger dealt with funds and not facilities, its officials should have been afforded substantial discretion as to the allocation of resources to accomplish the institution’s educational mission. The Court distinguished this situation from one where the University was the speaker and was controlling the message. Insofar as all Contracted Independent Organizations had to sign waivers acknowledging that they were neither agents of the university nor its responsibility, the Court determined that because the groups were private speakers, the university officials could not silence the viewpoints of selected groups. Even if the case had dealt with facilities, the Court suggested that university officials would have been prohibited from acting as they did in denying funds.
Turning to the Establishment Clause issue, the Supreme Court pointed out that the university’s program was neutral toward religion, because the purpose of the fund was to open a forum for speech and to support valid student groups. Deciding that the mandatory fee to support the fund was not a tax, the Court concluded that because the program furthered its neutrality by ensuring that each CIO was considered a private group and was not part of the university, officials would not have violated the Establishment Clause had they made the funds available.
Justice O’Connor’s concurrence commented that there were four considerations that led her to believe that there was no Establishment Clause violation. She identified these as the facts that the Contracted Independent Organizations remained independent of the university, that money from the fund was distributed only after publication and to outside vendors, that Wide Awake was competing with 15 other campus publications, and that students were involved in both the contribution and distribution of the funds.
Justice Thomas also concurred, explaining the historical context of the Establishment Clause. He remarked that the Establishment Clause does not require the exclusion of religious groups from all government benefits.
The dissent, authored by Justice Souter, and joined by Justices Stevens, Ginsburg, and Breyer, maintained that the university would have been directly subsidizing religion by paying printing costs for the newspaper. Further, he contended that the student activity fee was a tax, much like those imposed on the colonists for church support before the Constitution was enacted. As a result, he viewed the fee as a blatant violation of the Establishment Clause, because it provided a direct aid to religion.
In the wake of Rosenberger, the free speech rights of students on college and university campuses were strengthened even while the Supreme Court protected the ability of religiously affiliated organizations to use public facilities. Moreover, Rosenberger stands out, because it ensures that groups with differing viewpoints can be afforded equal access to funding, thereby promoting diversity of perspectives on college and university campuses.
Megan L. Rehberg
See also Free Speech and Expression Rights of Students; religious activities on campus
Mawdsley, R. D., & Russo, C. J. (1995). Religion in public education: Rosenberger fuels an ongoing debate. Education Law Reporter, 103, 13–31.
Morris, A. A. (1995). Separation of church and state— Remarks on Rosenberger v. University of Virginia. Education Law Reporter, 103, 553–571.
Schimmel, D. (1995). Discrimination against religious viewpoints prohibited in public colleges and universities: An analysis of Rosenberger v. University of Virginia. Education Law Reporter, 102, 911–927.
Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993).
Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995).