|Widmar v. Vincent
[ Powell ]
[ Stevens ]
[ White ]
Widmar v. Vincent
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
JUSTICE STEVENS, concurring in the judgment.
As the Court recognizes, every university must "make academic judgments as to how best to allocate scarce resources," ante at 276. The Court appears to hold, however, that those judgments must "serve a compelling state interest" whenever they are based, even in part, on the content of speech. Ante at 269-270. This conclusion apparently flows from the Court's suggestion that a student activities program -- from which the public may be excluded, ante at 267-268, n. 5 -- must be managed as though it were a "public forum." [n1] In my opinion, the use of the terms "compelling [p278] state interest" and "public forum" to analyze the question presented in this case may needlessly undermine the academic freedom of public universities.
Today most major colleges and universities are operated by public authority. Nevertheless, their facilities are not open to the public in the same way that streets and parks are. University facilities -- private or public -- are maintained primarily for the benefit of the student body and the faculty. In performing their learning and teaching missions, the managers of a university routinely make countless decisions based on the content of communicative materials. They select books for inclusion in the library, they hire professors on the basis of their academic philosophies, they select courses for inclusion in the curriculum, and they reward scholars for what they have written. In addition, in encouraging students to participate in extracurricular activities, they necessarily make decisions concerning the content of those activities.
Because every university's resources are limited, an educational institution must routinely make decisions concerning the use of the time and space that is available for extracurricular activities. In my judgment, it is both necessary and appropriate for those decisions to evaluate the content of a proposed student activity. I should think it obvious, for example, that, if two groups of 25 students requested the use of a room at a particular time -- one to view Mickey Mouse cartoons and the other to rehearse an amateur performance of Hamlet -- the First Amendment would not require that the room be reserved for the group that submitted its application first. Nor do I see why a university should have to establish a "compelling state interest" to defend its decision to permit one group to use the facility and not the other. In my opinion, a university should be allowed to decide for itself whether a program that illuminates the genius of Walt Disney should be given precedence over one that may duplicate material adequately covered in the classroom. Judgments of [p279] this kind should be made by academicians, not by federal judges, [n2] and their standards for decision should not be encumbered with ambiguous phrases like "compelling state interest." [n3] [p280]
Thus, I do not subscribe to the view that a public university has no greater interest in the content of student activities than the police chief has in the content of a soapbox oration on Capitol Hill. A university legitimately may regard some subjects as more relevant to its educational mission than others. But the university, like the police officer, may not allow its agreement or disagreement with the viewpoint of a particular speaker to determine whether access to a forum will be granted. If a state university is to deny recognition to a student organization -- or is to give it a lesser right to use school facilities than other student groups -- it must have a valid reason for doing so. Healy v. James, 408 U.S. 169. [n4]
In this case, I agree with the Court that the University has not established a sufficient justification for its refusal to allow the Cornerstone group to engage in religious worship on the campus. The primary reason advanced for the discriminatory treatment is the University's fear of violating the Establishment Clause. But since the record discloses no danger [p281] that the University will appear to sponsor any particular religion, and since student participation in the Cornerstone meetings is entirely voluntary, the Court properly concludes that the University's fear is groundless. With that justification put to one side, the University has not met the burden that is imposed on it by Healy.
Nor does the University's reliance on the Establishment Clause of the Missouri State Constitution provide a sufficient justification for the discriminatory treatment in this case. [n5] As I have said, I believe that the University may exercise a measure of control over the agenda for student use of school facilities, preferring some subjects over others, without needing to identify so-called "compelling state interests." Quite obviously, however, the University could not allow a group of Republicans or Presbyterians to meet while denying Democrats or Mormons the same privilege. [n6] It seems apparent that the policy under attack would allow groups of young philosophers to meet to discuss their skepticism that a Supreme Being exists, or a group of political scientists to meet to debate the accuracy of the view that religion is the "opium of the people." If school facilities may be used to discuss anticlerical doctrine, it seems to me that comparable use by a group desiring to express a belief in God must also be permitted. The fact that their expression of faith includes ceremonial conduct is not, in my opinion, a sufficient reason for suppressing their discussion entirely.
Accordingly, although I do not endorse the Court's reasoning, I concur in its judgment. [p282]
1. As stated by the Court,
[i]n order to justify discriminatory exclusion from a public forum based on the religious content of a group's intended speech, the University must therefore satisfy the standard of review appropriate to content-based exclusions.
Ante at 269-270. See also ante, n. 20 ("Our holding is limited to the context of a public forum created by the University itself").
2. In Sweezy v. New Hampshire, 354 U.S. 234, Justice Frankfurter forcefully spoke of "the grave harm resulting from governmental intrusion into the intellectual life of a university. . . ." Id. at 261 (concurring in result). Justice Frankfurter quoted with approval portions of an address by T. H. Huxley:
"It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail "the four essential freedoms" of a university -- to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study."
Id. at 263. Although these comments were not directed at a public university's concern with extracurricular activities, it is clear that the "atmosphere" of a university includes such a critical aspect of campus life. See also University of California Regents v. Bakke, 438 U.S. 265, 312 (opinion of POWELL, J.) ("Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment"); Note, Academic Freedom and Federal Regulation of University Hiring, 92 Harv.L.Rev. 879 (1979). Cf. Van Alstyne, The Specific Theory of Academic Freedom and the General Issue of Civil Liberty, reprinted in The Concept of Academic Freedom 59, 77-81 (E. Pincoffs ed.1972).
3. In Illinois Elections Bd. v. Socialist Workers Party, 440 U.S. 173, JUSTICE BLACKMUN expressed concern with
what seems to be a continuing tendency in this Court to use as tests such easy phrases as "compelling [state] interest" and "least drastic [or restrictive] means." I have never been able fully to appreciate just what a "compelling state interest" is. If it means "convincingly controlling," or "incapable of being overcome" upon any balancing process, then, of course, the test merely announces an inevitable result, and the test is no test at all. And, for me, "least drastic means" is a slippery slope, and also the signal of the result the Court has chosen to reach. A judge would be unimaginative indeed if he could not come up with something a little less "drastic" or a little less "restrictive" in almost any situation, and thereby enable himself to vote to strike legislation down.
Id. at 188-189 (concurring opinion) (citation omitted).
4. In Healy, the Court stated:
The opinions below also assumed that petitioners had the burden of showing entitlement to recognition by the College. While petitioners have not challenged the procedural requirement that they file an application in conformity with the rules of the College, they do question the view of the courts below that final rejection could rest on their failure to convince the administration that their organization was unaffiliated with the National [Students for a Democratic Society]. For reasons to be stated later in this opinion, we do not consider the issue of affiliation to be a controlling one. But, apart from any particular issue, once petitioners had filed an application in conformity with the requirements, the burden was upon the College administration to justify its decision of rejection. It is to be remembered that the effect of the College's denial of recognition was a form of prior restraint, denying to petitioners' organization the range of associational activities described above. While a college has a legitimate interest in preventing disruption on the campus, which, under circumstances requiring the safeguarding of that interest, may justify such restraint, a 'heavy burden' rests on the college to demonstrate the appropriateness of that action.
408 U.S. at 183-184 (footnotes and citations omitted).
5. The University's asserted determination to keep Church and State completely separate, pursuant to the alleged dictates of the Missouri Constitution, is not without qualification. The very regulations at issue provide that
[n]o regulations shall be interpreted to forbid the offering of prayer or other appropriate recognition of religion at public functions held in University facilities. . . .
See ante at 266, n. 3.
6. See Farber, Content Regulation and the First Amendment: A Revisionist View, 68 Geo.L.J. 727 (1980).