Rosenberger v. University of Virginia - Opinion Announcement

Argument of Speaker

Mr. Speaker: The opinions of the court in two cases will be announced by Justice Kennedy.

Argument of Justice Kennedy

Mr. Kennedy: The first opinion that I have to announce is the opinion for the court in Rosenberger v. Rector and Visitors of the University of Virginia.

At the University of Virginia all full-time students pay a $14 per semester mandatory fee and the money goes to a Student Activities Fund sometimes called SAF.

Now, this case concerns a refusal of the University acting under its guidelines to pay for the printing cost of the student newspaper called Wide Awake and Wide Awake is a newspaper with the Christian’s point of view.

It’s recognized by the University as a student organization authorized to operate in the campus.

But, with safeguard to make it clear that the University is not responsible for its actions or statements.

Wide Awake published three issues and then requested the SAF the Fund, to pay the outside printing and that’s the way the Fund works.

The Fund does not pay students or student organization directly; it pays outside contractors directly.

The University refused to pay the printer’s bill.

It relied on guidelines forbidding assistance to a publication that“primarily manifests a particular belief in or a about a deity or an ultimate reality.”

So, the issue is whether the University’s denial or support is first of all, a denial of the paper’s free speech rights under the First Amendment and second whether any such violation is excused because the University has an obligation to deny assistance from the Fund to prevent a violation of the First Amendment probation against an establishment of religion.

The University prevailed in the District Court and the Court Of Appeals and we now reverse.

As to the speech question the Student Activities Fund is much like the limited forums that we have addressed in the earlier cases.

If a state entity such as the University creates a limited public forum for the discussion of views it is bound to respect the rule that it itself has established for the forum, his subjects are within the purpose of the forum.

The state may not discriminate based on viewpoint.

There is viewpoint discrimination here.

The subject such as racism can be discussed and SAF support it a lot but if an article on the same subject primarily manifests a religious point of view support is disallowed.

The University argues that it can make speech decisions based on content in order to perform its educational mission and adopt academic programs but that’s quite beside the point.

The speech here is not the University’s it’s the speech of the students.

Vital First Amendment speech principles are at stake here.

The first danger, that liberty lies in granting the state the power to examine publications to determine whether or not they are based on some ultimate idea and then to classify them.

The second and corollary danger is the danger to speech from chilling the thought and the expression of its citizens.

The danger is especially real in the University setting for the University to disapprove particular viewpoints of its students, risks, suppression as free speech and creative enquiry and one of the most vital centers for the nation’s intellectual life, its college and University campuses.

If the University’s regulation were applied with much vigor at all it would bar the printer for assays by hypothetical student contributors name Plato, Spinoza, and Descartes.

Both by its terms and in its application in this case the regulation is a denial as the right of free speech guaranteed by the First Amendment.

Now it remains to consider whether that violation is excused by the necessity of the University’s complying with the Establishment Clause.

We find no establishment violation, in payment of the printer’s bill by the Student Activities Fund, the government program that issue except for the regulation that we are discussing is neutral towards religion.

There is no suggestion that the University created its program to advance religion or aid a religious cause.

The purpose of the Student Activities Fund is to open a forum of speech and to support various student enterprises in recognition of the diversity and creativity of student life.

Neutrality is evident in the fact that the University has taken pains to dissociate itself from the private speech involved in any student publication.

No public funds flow directly into Wide Awake’s coffers.

Excess is granted on a religion neutral basis to avoid spectrum of student groups and in this respect the case is little different from earlier cases where we have allowed student groups under a religion neutral plan to use school facilities after hours even if the group engages in religious activities.

We see no difference in logical principle and no difference of constitutional significance between using funds to operate a facility and paying a third party contractor which was the arrangement here.

Where the contrary view to become law the University could only avoid a constitutional violation by examining publications for their content, least they create too great a religious message, that censorship would be far more inconsistent with the establishment clause than would be the governmental provision of secular printing services on a religion neutral basis.

There is no establishment clause violation in the University is honoring its duties under the free speech clause.

The judgment of the Court Of Appeals is reversed.

Justice O’Connor has filed a concurring opinion.

Justice Thomas has filed a concurring opinion.

Justice Souter has filed a dissenting opinion joined by Justices Stevens, Ginsburg and Breyer.