The Supreme Court/The Supreme Court.iso/pc/ascii/1994/94_329/94_329.zc

Text File | 1995-06-29 | 13.5 KB | 267 lines

SUPREME COURT OF THE UNITED STATES
--------
No. 94-329
--------
RONALD W. ROSENBERGER, et al., PETITIONERS
v. RECTOR and VISITORS OF THE UNIVERSITY
OF VIRGINIA et al.
on writ of certiorari to the united states court
of appeals for the fourth circuit
[June 29, 1995]

  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) (slip op., at 4) (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 dis-
criminate 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 activi-
ties 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) (plural-
ity opinion).  -The Religion Clauses prohibit the govern-
ment from favoring religion, but they provide no warrant
for discriminating against religion.-  Kiryas Joel, supra,
at ___ (slip op., at 7) (O'Connor, J.).  Neutrality, in
both form and effect, is one hallmark of the Establish-
ment Clause.
  As Justice Souter demonstrates, however, post, at
6-10, 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 view-
points.  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, understand-
ably 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. 577, 598 (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 assis-
tance provided under the Washington program is paid
directly to the student, who transmits it to the educa-
tional 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 pay-
check 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) (slip op., at 7-8).
  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 (Jack-
son, 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 18.
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 publica-
tions, the University would not be endorsing the maga-
zine'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 Inde-
pendent 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 Univer-
sity. . . .  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 perspec-
tive.  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 23,
and unlike a block grant to religious organizations.
  Third, assistance is provided to the religious publica-
tion 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 20, 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 19-20; post, at 1-3 (Thomas, J., concurring);
post, at 6-10 (Souter, J., dissenting), and from govern-
ment 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 indi-
vidual students proportional refunds.  The Student
Activities Fund, then, represents not government re-
sources, 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]xpe-
rience proves that the Establishment Clause, like the
Free Speech Clause, cannot easily be reduced to a single
test.-  Kiryas Joel, 512 U. S., at ___ (slip op., at 10)
(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 assis-
tance 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.