Religious free speech

Some colleges may choose to stop funding all activities

By Philip Walzer and Esther Diskin, June 30, 1995

The University of Virginia misinterpreted the First Amendment and violated students’ right to free speech when it denied funding to a Christian magazine, the Supreme Court decided Thursday in a 5-4 vote.

Justice Anthony M. Kennedy, in the majority opinion, said U.Va. created “a sweeping restriction on student thought and student inquiry” that “would risk fostering a pervasive bias or hostility to religion.”

Some religious groups hailed the ruling, together with another decision Thursday permitting the Ku Klux Klan to erect a cross at an Ohio park, for expanding opportunities for public expressions of faith.

“We have crossed a critical threshold in the fight for religious liberty,” said Jay Sekulow, chief counsel for the American Center for Law and Justice in Virginia Beach, which had filed briefs supporting both the student magazine and the KKK. “The message is clear: Religious speech or speakers must be treated exactly the same way as any other group.”

The center is a nonprofit legal group established by Pat Robertson.

But Barry W. Lynn, executive director of Americans United for the Separation of Church and State, said the ruling amounts to government support of religion: “When you have a public university picking the pockets of some students to pay for the evangelizing of other students, that’s not free speech. That’s tyranny.”

Sekulow said the U.Va. decision will “propel and energize other religious liberty issues,” such as the fight for government vouchers for religious schools.

But other legal experts said it would have little effect on the voucher issue, because the student fees that raise money for student activities are not comparable to taxes, which would subsidize the vouchers. And, they said, courts might allow students who don’t agree with a campus group to simply withhold some student fees, an option that isn’t open to taxpayers.

Most colleges, which have guidelines similar to U.Va.’s, will be forced to change their rules for collecting and distributing money to student organizations, opening the door to demands from many more groups, university officials said.

As a result, critics say, many student activities could get shortchanged if too many groups claim a piece of the pie. Or, even worse, colleges could drop all funding of student organizations to avoid the headache, they say.

“It has to do with budgets; it has nothing to do with religion,” said Sheldon Steinbach, general counsel for the American Council on Education, a college lobbying group in Washington that backed U.Va. “There just isn’t enough money.”

For Ron Rosenberger, the student who took the case to the Supreme Court, religion was the point.

He established the magazine “Wide Awake” in 1990 to enlighten a campus that he considered to be dominated by secular and liberal viewpoints. The magazine looked at issues ranging from racism to eating disorders through a Christian lens.

In 1991, he applied for $ 5,862 in university funds but was turned down because the magazine was deemed a “religious activity.” U.Va. bars funding to political and religious groups, fraternities or sororities.

The magazine closed for lack of money. Rosenberger left campus in 1992 without completing his degree, but he continued his fight in the courts. This year, U.Va. students resurrected the magazine without aid from the university.

Debate has mostly hinged on dueling interpretations of the “establishment clause” of the First Amendment, which prohibits Congress from making laws “respecting an establishment of religion, or prohibiting the free exercise thereof.”

Supporters of Rosenberger said the university squelched his right to express his religious views. Opponents, including U.Va., said a public college could not give money to a religious group without appearing to endorse that faith.

But the majority of justices dismissed the university’s interpretation of the First Amendment. “To obey the establishment clause,” Kennedy wrote, “it was not necessary for the university to deny eligibility to student publications because of their viewpoint.”

Joining him were Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia and Clarence Thomas. The dissenters were Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens.

Souter, in his dissent, wrote: “The court today, for the first time, approves direct funding of core religious activities by an arm of the state.”

Souter, who cited numerous excerpts from the magazine, said it amounted to sermons on salvation. “Using public funds for the direct subsidization of preaching the word is categorically forbidden under the Establishment Clause,” he wrote.

U.Va.’s president, John T. Casteen III, said Thursday, “I think there’s probably some disappointment around here because a lot of people think the court misapplied the law.”

Casteen said the Board of Visitors would meet in the fall to revise the funding guidelines. Board members could elect to do anything from distributing money to every student organization to shutting down funding for all groups, though Casteen said he doubted they would pursue that option.

Officials at Old Dominion University and the College of William and Mary say they, too, will rewrite their guidelines. Under their current rules, they said, a publication such as “Wide Awake” would not have been funded.

Elliot Mincberg, legal director of the People for the American Way, said the ruling will create an “anything goes” attitude toward funding student organizations, whether they’re the KKK or a sorority. “These funds may be something that universities become leery of in the future, because it will create a lot of conflict.”

But Michael McDonald, president of the Center for Individual Rights, which represented Rosenberger, said he doubted schools would drop funding for activities altogether. “To deny benefits to everyone,” he said, “is, to me, cutting off your nose to spite your face.”

Thomas Jefferson, who founded the university, has been invoked by both sides throughout the case, and Thursday was no different. Souter quoted Jefferson in his dissent, and other university supporters agreed with his reasoning.

“The whole idea behind Jefferson’s Bill for the Establishment of Religious Freedom and the First Amendment is that religion should be strictly voluntary, so people don’t pay a mandatory fee to support . . . religion at all,” said Melissa Rogers, associate general counsel for the Baptist Joint Committee, a coalition of moderate Baptist conferences that backed the university.

However, Jim Gilmore, the state attorney general, declared: “Thomas Jefferson founded the University of Virginia as a monument to vigorous debate and the robust exchange of ideas. The University of Virginia may now continue in that historic role.” Though Gilmore’s office usually represents state-supported colleges, he sided with Rosenberger in the case.

In Charlottesville, many students said they knew little about the case. Julie Lichtenvoort, a graduate student in psychology, said, “I’m just worried that a trend will start that U.Va. will become predominantly very religious.”

But Joanna Steere, entering her senior year, said: “I don’t have a problem with it. All voices should have an outlet.”