|Rosenberger v. Rector and Visitors of the University of Virginia
18 F.3d 269, reversed.
[ Kennedy ]
[ O'Connor ]
[ Thomas ]
[ Souter ]
Rosenberger v. Rector and Visitors of the University of Virginia
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
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) (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 at ___ (O'CONNOR, J.). Neutrality, in both form and effect, is one hallmark of the Establishment Clause.
As JUSTICE SOUTER demonstrates, however, post at ___, 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 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. ___ (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).
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 ___. 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 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 ___, 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 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 ___, the existence of such an opt-out possibility not available to citizens generally, see Abood, supra at 259, n. 13 (Powell, J., concurring in 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 ___; post at ___ (THOMAS, J., concurring); post at ___ (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 ___ (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 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.