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- NOTICE: This opinion is subject to formal revision before publication in the
- preliminary print of the United States Reports. Readers are requested to
- notify the Reporter of Decisions, Supreme Court of the United States, Wash-
- ington, D.C. 20543, of any typographical or other formal errors, in order that
- corrections may be made before the preliminary print goes to press.
- 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 Kennedy delivered the opinion of the Court.
- The University of Virginia, an instrumentality of the
- Commonwealth for which it is named and thus bound by
- the First and Fourteenth Amendments, authorizes the
- payment of outside contractors for the printing costs of
- a variety of student publications. It withheld any
- authorization for payments on behalf of petitioners for
- the sole reason that their student paper -primarily
- promotes or manifests a particular belie[f] in or about a
- deity or an ultimate reality.- That the paper did
- promote or manifest views within the defined exclusion
- seems plain enough. The challenge is to the
- University's regulation and its denial of authorization,
- the case raising issues under the Speech and Establish-
- ment Clauses of the First Amendment.
-
- I
- The public corporation we refer to as the -University-
- is denominated by state law as -the Rector and Visitors
- of the University of Virginia,- Va. Code Ann. 23-69
- (1993), and it is responsible for governing the school, see
- 23-69 to 23-80. Founded by Thomas Jefferson in
- 1819, and ranked by him, together with the authorship
- of the Declaration of Independence and of the Virginia
- Act for Religious Freedom, Va. Code Ann. 57-1, as one
- of his proudest achievements, the University is among
- the Nation's oldest and most respected seats of higher
- learning. It has more than 11,000 undergraduate
- students, and 6,000 graduate and professional students.
- An understanding of the case requires a somewhat
- detailed description of the program the University
- created to support extracurricular student activities on
- its campus.
- Before a student group is eligible to submit bills
- from its outside contractors for payment by the fund
- described below, it must become a -Contracted Indepen-
- dent Organization- (CIO). CIO status is available to
- any group the majority of whose members are students,
- whose managing officers are fulltime students, and that
- complies with certain procedural requirements. App. to
- Pet. for Cert. 2a. A CIO must file its constitution with
- the University; must pledge not to discriminate in its
- membership; and must include in dealings with third
- parties and in all written materials a disclaimer, stating
- that the CIO is independent of the University and that
- the University is not responsible for the CIO. App.
- 27-28. CIOs enjoy access to University facilities,
- including meeting rooms and computer terminals. Id.,
- at 30. A standard agreement signed between each CIO
- and the University provides that the benefits and
- opportunities afforded to CIOs -should not be misinter-
- preted as meaning that those organizations are part of
- or controlled by the University, that the University is
- responsible for the organizations' contracts or other acts
- or omissions, or that the University approves of the
- organizations' goals or activities.- Id., at 26.
- All CIOs may exist and operate at the University, but
- some are also entitled to apply for funds from the
- Student Activities Fund (SAF). Established and gov-
- erned by University Guidelines, the purpose of the SAF
- is to support a broad range of extracurricular student
- activities that -are related to the educational purpose of
- the University.- App. to Pet. for Cert. 61a. The SAF is
- based on the University's -recogni[tion] that the avail-
- ability of a wide range of opportunities- for its students
- -tends to enhance the University environment.- App. 26.
- The Guidelines require that it be administered -in a
- manner consistent with the educational purpose of the
- University as well as with state and federal law.- App.
- to Pet. for Cert. 61a. The SAF receives its money from
- a mandatory fee of $14 per semester assessed to each
- full-time student. The Student Council, elected by the
- students, has the initial authority to disburse the funds,
- but its actions are subject to review by a faculty body
- chaired by a designee of the Vice President for Student
- Affairs. Cf. id., at 63a-64a.
- Some, but not all, CIOs may submit disbursement
- requests to the SAF. The Guidelines recognize 11
- categories of student groups that may seek payment to
- third-party contractors because they -are related to the
- educational purpose of the University of Virginia.- Id.,
- at 61a-62a. One of these is -student news, information,
- opinion, entertainment, or academic communications
- media groups.- Id., at 61a. The Guidelines also specify,
- however, that the costs of certain activities of CIOs that
- are otherwise eligible for funding will not be reimbursed
- by the SAF. The student activities which are excluded
- from SAF support are religious activities, philanthropic
- contributions and activities, political activities, activities
- that would jeopardize the University's tax exempt status,
- those which involve payment of honoraria or similar
- fees, or social entertainment or related expenses. Id., at
- 62a-63a. The prohibition on -political activities- is
- defined so that it is limited to electioneering and
- lobbying. The Guidelines provide that -[t]hese restric-
- tions on funding political activities are not intended to
- preclude funding of any otherwise eligible student
- organization which . . . espouses particular positions or
- ideological viewpoints, including those that may be
- unpopular or are not generally accepted.- Id., at
- 65a-66a. A -religious activity,- by contrast, is defined
- as any activity that -primarily promotes or manifests a
- particular belie[f] in or about a deity or an ultimate
- reality.- Id., at 66a.
- The Guidelines prescribe these criteria for determining
- the amounts of third-party disbursements that will be
- allowed on behalf of each eligible student organization:
- the size of the group, its financial self-sufficiency, and
- the University-wide benefit of its activities. If an
- organization seeks SAF support, it must submit its bills
- to the Student Council, which pays the organization's
- creditors upon determining that the expenses are
- appropriate. No direct payments are made to the
- student groups. During the 1990-1991 academic year,
- 343 student groups qualified as CIOs. One hundred
- thirty-five of them applied for support from the SAF,
- and 118 received funding. Fifteen of the groups were
- funded as -student news, information, opinion, entertain-
- ment, or academic communications media groups.-
- Petitioners' organization, Wide Awake Productions
- (WAP), qualified as a CIO. Formed by petitioner Ronald
- Rosenberger and other undergraduates in 1990, WAP
- was established -[t]o publish a magazine of philosophical
- and religious expression,- -[t]o facilitate discussion which
- fosters an atmosphere of sensitivity to and tolerance of
- Christian viewpoints,- and -[t]o provide a unifying focus
- for Christians of multicultural backgrounds.- App. 67.
- WAP publishes Wide Awake: A Christian Perspective at
- the University of Virginia. The paper's Christian
- viewpoint was evident from the first issue, in which its
- editors wrote that the journal -offers a Christian
- perspective on both personal and community issues,
- especially those relevant to college students at the
- University of Virginia.- App. 45. The editors committed
- the paper to a two-fold mission: -to challenge Christians
- to live, in word and deed, according to the faith they
- proclaim and to encourage students to consider what a
- personal relationship with Jesus Christ means.- Ibid.
- The first issue had articles about racism, crisis preg-
- nancy, stress, prayer, C. S. Lewis' ideas about evil and
- free will, and reviews of religious music. In the next
- two issues, Wide Awake featured stories about homo-
- sexuality, Christian missionary work, and eating dis-
- orders, as well as music reviews and interviews with
- University professors. Each page of Wide Awake, and
- the end of each article or review, is marked by a cross.
- The advertisements carried in Wide Awake also reveal
- the Christian perspective of the journal. For the most
- part, the advertisers are churches, centers for Christian
- study, or Christian bookstores. By June 1992, WAP had
- distributed about 5,000 copies of Wide Awake to Univer-
- sity students, free of charge.
- WAP had acquired CIO status soon after it was
- organized. This is an important consideration in this
- case, for had it been a -religious organization,- WAP
- would not have been accorded CIO status. As defined
- by the Guidelines, a -religious organization- is -an
- organization whose purpose is to practice a devotion to
- an acknowledged ultimate reality or deity.- App. to Pet.
- for Cert. 66a. At no stage in this controversy has the
- University contended that WAP is such an organization.
- A few months after being given CIO status, WAP
- requested the SAF to pay its printer $5,862 for the costs
- of printing its newspaper. The Appropriations Com-
- mittee of the Student Council denied WAP's request on
- the ground that Wide Awake was a -religious activity-
- within the meaning of the Guidelines, i.e., that the
- newspaper -promote[d] or manifest[ed] a particular
- belie[f] in or about a deity or an ultimate reality.- Ibid.
- It made its determination after examining the first
- issue. App. 54. WAP appealed the denial to the full
- Student Council, contending that WAP met all the
- applicable Guidelines and that denial of SAF support on
- the basis of the magazine's religious perspective violated
- the Constitution. The appeal was denied without
- further comment, and WAP appealed to the next level,
- the Student Activities Committee. In a letter signed by
- the Dean of Students, the committee sustained the
- denial of funding. App. 55.
- Having no further recourse within the University
- structure, WAP, Wide Awake, and three of its editors
- and members filed suit in the United States District
- Court for the Western District of Virginia, challenging
- the SAF's action as violative of Rev. Stat. 1979, 42
- U. S. C. 1983. They alleged that refusal to authorize
- payment of the printing costs of the publication, solely
- on the basis of its religious editorial viewpoint, violated
- their rights to freedom of speech and press, to the free
- exercise of religion, and to equal protection of the law.
- They relied also upon Article I of the Virginia Constitu-
- tion and the Virginia Act for Religious Freedom, Va.
- Code Ann. 57-1, 57-2 (1986 and Supp. 1994), but did
- not pursue those theories on appeal. The suit sought
- damages for the costs of printing the paper, injunctive
- and declaratory relief, and attorney's fees.
- On cross-motions for summary judgment, the District
- Court ruled for the University, holding that denial of
- SAF support was not an impermissible content or view-
- point discrimination against petitioners' speech, and that
- the University's Establishment Clause concern over its
- -religious activities- was a sufficient justification for
- denying payment to third-party contractors. The court
- did not issue a definitive ruling on whether reimburse-
- ment, had it been made here, would or would not have
- violated the Establishment Clause. 795 F. Supp. 175,
- 181-182 (WD Va. 1992).
- The United States Court of Appeals for the Fourth
- Circuit, in disagreement with the District Court, held
- that the Guidelines did discriminate on the basis of
- content. It ruled that, while the State need not under-
- write speech, there was a presumptive violation of the
- Speech Clause when viewpoint discrimination was
- invoked to deny third-party payment otherwise available
- to CIOs. 18 F. 3d 269, 279-281 (1994). The Court of
- Appeals affirmed the judgment of the District Court
- nonetheless, concluding that the discrimination by the
- University was justified by the -compelling interest in
- maintaining strict separation of church and state.- Id.,
- at 281.
-
- II
- It is axiomatic that the government may not regulate
- speech based on its substantive content or the message
- it conveys. Police Dept. of Chicago v. Mosley, 408 U. S.
- 92, 96 (1972). Other principles follow from this precept.
- In the realm of private speech or expression, government
- regulation may not favor one speaker over another. City
- Council of Los Angeles v. Taxpayers for Vincent, 466
- U. S. 789, 804 (1984). Discrimination against speech
- because of its message is presumed to be unconstitu-
- tional. See Turner Broadcasting System, Inc. v. FCC,
- 512 U. S. __, __ (1994) (slip op., at 16-19). These rules
- informed our determination that the government offends
- the First Amendment when it imposes financial burdens
- on certain speakers based on the content of their expres-
- sion. Simon & Schuster, Inc. v. Members of N. Y. State
- Crime Victims Bd., 502 U. S. 105, 115 (1991). When the
- government targets not subject matter but particular
- views taken by speakers on a subject, the violation of
- the First Amendment is all the more blatant. See
- R. A. V. v. St. Paul, 505 U. S. 377, 391 (1992). View-
- point discrimination is thus an egregious form of content
- discrimination. The government must abstain from
- regulating speech when the specific motivating ideology
- or the opinion or perspective of the speaker is the
- rationale for the restriction. See Perry Ed. Assn. v.
- Perry Local Educators' Assn., 460 U. S. 37, 46 (1983).
- These principles provide the framework forbidding the
- State from exercising viewpoint discrimination, even
- when the limited public forum is one of its own creation.
- In a case involving a school district's provision of school
- facilities for private uses, we declared that -[t]here is no
- question that the District, like the private owner of
- property, may legally preserve the property under its
- control for the use to which it is dedicated.- Lamb's
- Chapel v. Center Moriches Union Free School Dist., 508
- U. S. __, __ (slip op., at 5-7) (1993). The necessities of
- confining a forum to the limited and legitimate purposes
- for which it was created may justify the State in
- reserving it for certain groups or for the discussion of
- certain topics. See, e.g., Cornelius v. NAACP Legal
- Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985);
- Perry Ed. Assn., supra, at 49. Once it has opened a
- limited forum, however, the State must respect the
- lawful boundaries it has itself set. The State may not
- exclude speech where its distinction is not -reasonable
- in light of the purpose served by the forum,- Cornelius,
- supra, at 804-806; see also Perry Ed. Assn., supra, at
- 46, 49, nor may it discriminate against speech on the
- basis of its viewpoint, Lamb's Chapel, supra, at __ (slip
- op., at 6-7); see also Perry Ed. Assn., supra, at 46;
- R. A. V., supra, at 386-388, 391-393; cf. Texas v. John-
- son, 491 U. S. 397, 414-415 (1989). Thus, in determin-
- ing whether the State is acting to preserve the limits of
- the forum it has created so that the exclusion of a class
- of speech is legitimate, we have observed a distinction
- between, on the one hand, content discrimination, which
- may be permissible if it preserves the purposes of that
- limited forum, and, on the other hand, viewpoint
- discrimination, which is presumed impermissible when
- directed against speech otherwise within the forum's
- limitations. See Perry Ed. Assn., supra, at 46.
- The SAF is a forum more in a metaphysical than in
- a spatial or geographic sense, but the same principles
- are applicable. See, e.g., Perry Ed. Assn., supra, at
- 46-47 (forum analysis of a school mail system); Corne-
- lius, supra, at 801 (forum analysis of charitable contri-
- bution program). The most recent and most apposite
- case is our decision in Lamb's Chapel, supra. There, a
- school district had opened school facilities for use after
- school hours by community groups for a wide variety of
- social, civic, and recreational purposes. The district,
- however, had enacted a formal policy against opening fa-
- cilities to groups for religious purposes. Invoking its
- policy, the district rejected a request from a group de-
- siring to show a film series addressing various child-
- rearing questions from a -Christian perspective.- There
- was no indication in the record in Lamb's Chapel that
- the request to use the school facilities was -denied for
- any reason other than the fact that the presentation
- would have been from a religious perspective.- 508
- U. S., at __ (slip op., at 8-9). Our conclusion was unan-
- imous: -[I]t discriminates on the basis of viewpoint to
- permit school property to be used for the presentation of
- all views about family issues and child-rearing except
- those dealing with the subject matter from a religious
- standpoint.- Ibid.
- The University does acknowledge (as it must in light
- of our precedents) that -ideologically driven attempts to
- suppress a particular point of view are presumptively
- unconstitutional in funding, as in other contexts,- but
- insists that this case does not present that issue because
- the Guidelines draw lines based on content, not view-
- point. Brief for Respondents 17, n. 10. As we have
- noted, discrimination against one set of views or ideas
- is but a subset or particular instance of the more
- general phenomenon of content discrimination. See, e.g.,
- R. A. V., supra, at 391. And, it must be acknowledged,
- the distinction is not a precise one. It is, in a sense,
- something of an understatement to speak of religious
- thought and discussion as just a viewpoint, as distinct
- from a comprehensive body of thought. The nature of
- our origins and destiny and their dependence upon the
- existence of a divine being have been subjects of philo-
- sophic inquiry throughout human history. We conclude,
- nonetheless, that here, as in Lamb's Chapel, viewpoint
- discrimination is the proper way to interpret the Uni-
- versity's objections to Wide Awake. By the very terms
- of the SAF prohibition, the University does not exclude
- religion as a subject matter but selects for disfavored
- treatment those student journalistic efforts with religious
- editorial viewpoints. Religion may be a vast area of in-
- quiry, but it also provides, as it did here, a specific
- premise, a perspective, a standpoint from which a va-
- riety of subjects may be discussed and considered. The
- prohibited perspective, not the general subject matter,
- resulted in the refusal to make third-party payments, for
- the subjects discussed were otherwise within the ap-
- proved category of publications.
- The dissent's assertion that no viewpoint discrimina-
- tion occurs because the Guidelines discriminate against
- an entire class of viewpoints reflects an insupportable
- assumption that all debate is bipolar and that anti-
- religious speech is the only response to religious speech.
- Our understanding of the complex and multifaceted na-
- ture of public discourse has not embraced such a con-
- trived description of the marketplace of ideas. If the
- topic of debate is, for example, racism, then exclusion of
- several views on that problem is just as offensive to the
- First Amendment as exclusion of only one. It is as ob-
- jectionable to exclude both a theistic and an atheistic
- perspective on the debate as it is to exclude one, the
- other, or yet another political, economic, or social view-
- point. The dissent's declaration that debate is not
- skewed so long as multiple voices are silenced is simply
- wrong; the debate is skewed in multiple ways.
- The University's denial of WAP's request for third-
- party payments in the present case is based upon
- viewpoint discrimination not unlike the discrimination
- the school district relied upon in Lamb's Chapel and
- that we found invalid. The church group in Lamb's
- Chapel would have been qualified as a social or civic
- organization, save for its religious purposes. Further-
- more, just as the school district in Lamb's Chapel
- pointed to nothing but the religious views of the group
- as the rationale for excluding its message, so in this
- case the University justifies its denial of SAF participa-
- tion to WAP on the ground that the contents of Wide
- Awake reveal an avowed religious perspective. See
- supra, at 5. It bears only passing mention that the
- dissent's attempt to distinguish Lamb's Chapel is
- entirely without support in the law. Relying on the
- transcript of oral argument, the dissent seems to argue
- that we found viewpoint discrimination in that case
- because the government excluded Christian, but not
- atheistic, viewpoints from being expressed in the forum
- there. Post, at 37-38, and n. 13. The Court relied on
- no such distinction in holding that discriminating
- against religious speech was discriminating on the basis
- of viewpoint. There is no indication in the opinion of
- the Court (which, unlike an advocate's statements at
- oral argument, is the law) that exclusion or inclusion of
- other religious or antireligious voices from that forum
- had any bearing on its decision.
- The University tries to escape the consequences of our
- holding in Lamb's Chapel by urging that this case
- involves the provision of funds rather than access to
- facilities. The University begins with the unremarkable
- proposition that the State must have substantial
- discretion in determining how to allocate scarce re-
- sources to accomplish its educational mission. Citing
- our decisions in Rust v. Sullivan, 500 U. S. 173 (1991),
- Regan v. Taxation with Representation of Wash., 461
- U. S. 540 (1983), and Widmar v. Vincent, 454 U. S. 263
- (1981), the University argues that content-based funding
- decisions are both inevitable and lawful. Were the rea-
- soning of Lamb's Chapel to apply to funding decisions as
- well as to those involving access to facilities, it is urged,
- its holding -would become a judicial juggernaut, constitu-
- tionalizing the ubiquitous content-based decisions that
- schools, colleges, and other government entities routinely
- make in the allocation of public funds.- Brief for Re-
- spondents 16.
- To this end the University relies on our assurance in
- Widmar v. Vincent, supra. There, in the course of strik-
- ing down a public university's exclusion of religious
- groups from use of school facilities made available to all
- other student groups, we stated: -Nor do we question
- the right of the University to make academic judgments
- as to how best to allocate scarce resources.- 454 U. S.,
- at 276. The quoted language in Widmar was but a
- proper recognition of the principle that when the State
- is the speaker, it may make content-based choices.
- When the University determines the content of the
- education it provides, it is the University speaking, and
- we have permitted the government to regulate the
- content of what is or is not expressed when it is the
- speaker or when it enlists private entities to convey its
- own message. In the same vein, in Rust v. Sullivan,
- supra, we upheld the government's prohibition on
- abortion-related advice applicable to recipients of federal
- funds for family planning counseling. There, the
- government did not create a program to encourage
- private speech but instead used private speakers to
- transmit specific information pertaining to its own
- program. We recognized that when the government
- appropriates public funds to promote a particular policy
- of its own it is entitled to say what it wishes. 500
- U. S., at 194. When the government disburses public
- funds to private entities to convey a governmental
- message, it may take legitimate and appropriate steps
- to ensure that its message is neither garbled nor dis-
- torted by the grantee. See id., at 196-200.
- It does not follow, however, and we did not suggest in
- Widmar, that viewpoint-based restrictions are proper
- when the University does not itself speak or subsidize
- transmittal of a message it favors but instead expends
- funds to encourage a diversity of views from private
- speakers. A holding that the University may not
- discriminate based on the viewpoint of private persons
- whose speech it facilitates does not restrict the
- University's own speech, which is controlled by different
- principles. See, e.g., Board of Ed. of Westside Commu-
- nity Schools (Dist. 66) v. Mergens, 496 U. S. 226, 250
- (1990); Hazelwood School Dist. v. Kuhlmeier, 484 U. S.
- 260, 270-272 (1988). For that reason, the University's
- reliance on Regan v. Taxation with Representation of
- Wash., supra, is inapposite as well. Regan involved a
- challenge to Congress' choice to grant tax deductions for
- contributions made to veterans' groups engaged in
- lobbying, while denying that favorable status to other
- charities which pursued lobbying efforts. Although
- acknowledging that the Government is not required to
- subsidize the exercise of fundamental rights, see 461
- U. S., at 545-546, we reaffirmed the requirement of
- viewpoint neutrality in the Government's provision of
- financial benefits by observing that -[t]he case would be
- different if Congress were to discriminate invidiously in
- its subsidies in such a way as to `ai[m] at the suppres-
- sion of dangerous ideas,'- see id., at 548 (quoting
- Cammarano v. United States, 358 U. S. 498, 513 (1959),
- in turn quoting Speiser v. Randall, 357 U. S. 513, 519
- (1958). Regan relied on a distinction based on preferen-
- tial treatment of certain speakers-veterans organiza-
- tions-and not a distinction based on the content or
- messages of those groups' speech. 461 U. S., at 548; cf.
- Perry Ed. Assn., 460 U. S., at 49. The University's
- regulation now before us, however, has a speech-based
- restriction as its sole rationale and operative principle.
- The distinction between the University's own favored
- message and the private speech of students is evident in
- the case before us. The University itself has taken
- steps to ensure the distinction in the agreement each
- CIO must sign. See supra, at 2. The University de-
- clares that the student groups eligible for SAF support
- are not the University's agents, are not subject to its
- control, and are not its responsibility. Having offered to
- pay the third-party contractors on behalf of private
- speakers who convey their own messages, the University
- may not silence the expression of selected viewpoints.
- The University urges that, from a constitutional stand-
- point, funding of speech differs from provision of access
- to facilities because money is scarce and physical facil-
- ities are not. Beyond the fact that in any given case
- this proposition might not be true as an empirical mat-
- ter, the underlying premise that the University could
- discriminate based on viewpoint if demand for space ex-
- ceeded its availability is wrong as well. The government
- cannot justify viewpoint discrimination among private
- speakers on the economic fact of scarcity. Had the
- meeting rooms in Lamb's Chapel been scarce, had the
- demand been greater than the supply, our decision
- would have been no different. It would have been in-
- cumbent on the State, of course, to ration or allocate the
- scarce resources on some acceptable neutral principle;
- but nothing in our decision indicated that scarcity would
- give the State the right to exercise viewpoint discrimina-
- tion that is otherwise impermissible.
- Vital First Amendment speech principles are at stake
- here. The first danger to liberty lies in granting the
- State the power to examine publications to determine
- whether or not they are based on some ultimate idea
- and if so for the State to classify them. The second,
- and corollary, danger is to speech from the chilling of
- individual thought and expression. That danger is
- especially real in the University setting, where the State
- acts against a background and tradition of thought and
- experiment that is at the center of our intellectual and
- philosophic tradition. See Healy v. James, 408 U. S.
- 169, 180-181 (1972); Keyishian v. Board of Regents,
- State Univ. of N. Y., 385 U. S. 589, 603 (1967); Sweezy
- v. New Hampshire, 354 U. S. 234, 250 (1957). In
- ancient Athens, and, as Europe entered into a new
- period of intellectual awakening, in places like Bologna,
- Oxford, and Paris, universities began as voluntary and
- spontaneous assemblages or concourses for students to
- speak and to write and to learn. See generally R.
- Palmer & J. Colton, A History of the Modern World 39
- (7th ed. 1992). The quality and creative power of
- student intellectual life to this day remains a vital
- measure of a school's influence and attainment. For the
- University, by regulation, to cast disapproval on particu-
- lar viewpoints of its students risks the suppression of
- free speech and creative inquiry in one of the vital
- centers for the nation's intellectual life, its college and
- university campuses.
- The Guideline invoked by the University to deny
- third-party contractor payments on behalf of WAP ef-
- fects a sweeping restriction on student thought and
- student inquiry in the context of University sponsored
- publications. The prohibition on funding on behalf of
- publications that -primarily promot[e] or manifes[t] a
- particular belie[f] in or about a deity or an ultimate
- reality,- in its ordinary and commonsense meaning, has
- a vast potential reach. The term -promotes- as used
- here would comprehend any writing advocating a philo-
- sophic position that rests upon a belief in a deity or
- ultimate reality. See Webster's Third New International
- Dictionary 1815 (1961) (defining -promote- as -to contrib-
- ute to the growth, enlargement, or prosperity of: further,
- encourage-). And the term -manifests- would bring
- within the scope of the prohibition any writing that is
- explicable as resting upon a premise which presupposes
- the existence of a deity or ultimate reality. See id., at
- 1375 (defining -manifest- as -to show plainly: make
- palpably evident or certain by showing or displaying-).
- Were the prohibition applied with much vigor at all, it
- would bar funding of essays by hypothetical student
- contributors named Plato, Spinoza, and Descartes. And
- if the regulation covers, as the University says it does,
- see Tr. of Oral Arg. 18-19, those student journalistic
- efforts which primarily manifest or promote a belief that
- there is no deity and no ultimate reality, then under-
- graduates named Karl Marx, Bertrand Russell, and
- Jean-Paul Sartre would likewise have some of their
- major essays excluded from student publications. If any
- manifestation of beliefs in first principles disqualifies the
- writing, as seems to be the case, it is indeed difficult to
- name renowned thinkers whose writings would be ac-
- cepted, save perhaps for articles disclaiming all connec-
- tion to their ultimate philosophy. Plato could contrive
- perhaps to submit an acceptable essay on making pasta
- or peanut butter cookies, provided he did not point out
- their (necessary) imperfections.
- Based on the principles we have discussed, we hold
- that the regulation invoked to deny SAF support, both
- in its terms and in its application to these petitioners,
- is a denial of their right of free speech guaranteed by
- the First Amendment. It remains to be considered
- whether the violation following from the University's
- action is excused by the necessity of complying with
- the Constitution's prohibition against state establishment
- of religion. We turn to that question.
-
- III
- Before its brief on the merits in this Court, the Uni-
- versity had argued at all stages of the litigation that in-
- clusion of WAP's contractors in SAF funding authoriza-
- tion would violate the Establishment Clause. Indeed,
- that is the ground on which the University prevailed in
- the Court of Appeals. We granted certiorari on this
- question: -Whether the Establishment Clause compels a
- state university to exclude an otherwise eligible student
- publication from participation in the student activities
- fund, solely on the basis of its religious viewpoint, where
- such exclusion would violate the Speech and Press
- Clauses if the viewpoint of the publication were nonreli-
- gious.- Pet. for Cert. i. The University now seems to
- have abandoned this position, contending that -[t]he
- fundamental objection to petitioners' argument is not
- that it implicates the Establishment Clause but that it
- would defeat the ability of public education at all levels
- to control the use of public funds.- Brief for Respond-
- ents 29; see id., at 27-29, and n. 17; Tr. of Oral Arg.
- 14. That the University itself no longer presses the
- Establishment Clause claim is some indication that it
- lacks force; but as the Court of Appeals rested its judg-
- ment on the point and our dissenting colleagues would
- find it determinative, it must be addressed.
- The Court of Appeals ruled that withholding SAF
- support from Wide Awake contravened the Speech
- Clause of the First Amendment, but proceeded to hold
- that the University's action was justified by the neces-
- sity of avoiding a violation of the Establishment Clause,
- an interest it found compelling. 18 F. 3d, at 281.
- Recognizing that this Court has regularly -sanctioned
- awards of direct nonmonetary benefits to religious
- groups where the government has created open fora to
- which all similarly situated organizations are invited,-
- 18 F. 3d, at 286 (citing Widmar, 454 U. S., at 277), the
- Fourth Circuit asserted that direct monetary subsidiza-
- tion of religious organizations and projects is -a beast of
- an entirely different color,- 18 F. 3d, at 286. The court
- declared that the Establishment Clause would not
- permit the use of public funds to support -`a specifically
- religious activity in an otherwise substantially secular
- setting.'- Id., at 285 (quoting Hunt v. McNair, 413 U. S.
- 734, 743 (1973) (emphasis deleted)). It reasoned that
- because Wide Awake is -a journal pervasively devoted to
- the discussion and advancement of an avowedly Chris-
- tian theological and personal philosophy,- the Univer-
- sity's provision of SAF funds for its publication would
- -send an unmistakably clear signal that the University
- of Virginia supports Christian values and wishes to pro-
- mote the wide promulgation of such values.- 18 F. 3d,
- at 286.
- If there is to be assurance that the Establishment
- Clause retains its force in guarding against those
- governmental actions it was intended to prohibit, we
- must in each case inquire first into the purpose and
- object of the governmental action in question and then
- into the practical details of the program's operation.
- Before turning to these matters, however, we can set
- forth certain general principles that must bear upon our
- determination.
- A central lesson of our decisions is that a significant
- factor in upholding governmental programs in the face
- of Establishment Clause attack is their neutrality
- towards religion. We have decided a series of cases
- addressing the receipt of government benefits where
- religion or religious views are implicated in some degree.
- The first case in our modern Establishment Clause
- jurisprudence was Everson v. Board of Ed. of Ewing, 330
- U. S. 1 (1947). There we cautioned that in enforcing
- the prohibition against laws respecting establishment of
- religion, we must -be sure that we do not inadvertently
- prohibit [the government] from extending its general
- state law benefits to all its citizens without regard to
- their religious belief.- Id., at 16. We have held that
- the guarantee of neutrality is respected, not offended,
- when the government, following neutral criteria and
- evenhanded policies, extends benefits to recipients whose
- ideologies and viewpoints, including religious ones, are
- broad and diverse. See Board of Ed. of Kiryas Joel
- Village School Dist. v. Grumet, 512 U. S. __, __ (1994)
- (slip op., at 16) (Souter, J.) (-[T]he principle is well
- grounded in our case law [and] we have frequently
- relied explicitly on the general availability of any benefit
- provided religious groups or individuals in turning aside
- Establishment Clause challenges-); Witters v. Washington
- Dept. of Services for Blind, 474 U. S. 481, 487-488
- (1986); Mueller v. Allen, 463 U. S. 388, 398-399 (1983);
- Widmar, 454 U. S., at 274-275. More than once have
- we rejected the position that the Establishment Clause
- even justifies, much less requires, a refusal to extend
- free speech rights to religious speakers who participate
- in broad-reaching government programs neutral in
- design. See Lamb's Chapel, 508 U. S., at __; Mergens,
- 496 U. S., at 248, 252; Widmar, supra, at 274-275.
- The governmental program here is neutral toward
- religion. There is no suggestion that the University
- created it to advance religion or adopted some ingenious
- device with the purpose of aiding a religious cause. The
- object of the SAF is to open a forum for speech and to
- support various student enterprises, including the
- publication of newspapers, in recognition of the diversity
- and creativity of student life. The University's SAF
- Guidelines have a separate classification for, and do not
- make third-party payments on behalf of, -religious
- organizations,- which are those -whose purpose is to
- practice a devotion to an acknowledged ultimate reality
- or deity.- Pet. for Cert. 66a. The category of support
- here is for -student news, information, opinion, enter-
- tainment, or academic communications media groups,- of
- which Wide Awake was 1 of 15 in the 1990 school year.
- WAP did not seek a subsidy because of its Christian
- editorial viewpoint; it sought funding as a student
- journal, which it was.
- The neutrality of the program distinguishes the
- student fees from a tax levied for the direct support of
- a church or group of churches. A tax of that sort, of
- course, would run contrary to Establishment Clause
- concerns dating from the earliest days of the Republic.
- The apprehensions of our predecessors involved the
- levying of taxes upon the public for the sole and exclu-
- sive purpose of establishing and supporting specific
- sects. The exaction here, by contrast, is a student
- activity fee designed to reflect the reality that student
- life in its many dimensions includes the necessity of
- wide-ranging speech and inquiry and that student
- expression is an integral part of the University's educa-
- tional mission. The fee is mandatory, and we do not
- have before us the question whether an objecting
- student has the First Amendment right to demand a pro
- rata return to the extent the fee is expended for speech
- to which he or she does not subscribe. See Keller v.
- State Bar of California, 496 U. S. 1, 15-16 (1990);
- Abood v. Detroit Board of Ed., 431 U. S. 209, 235-236
- (1977). We must treat it, then, as an exaction upon the
- students. But the $14 paid each semester by the
- students is not a general tax designed to raise revenue
- for the University. See United States v. Butler, 297
- U. S. 1, 61 (1936) (-A tax, in the general understanding
- of the term, and as used in the Constitution, signifies an
- exaction for the support of the Government-); see also
- Head Money Cases, 112 U. S. 580, 595-596 (1884). The
- SAF cannot be used for unlimited purposes, much less
- the illegitimate purpose of supporting one religion.
- Much like the arrangement in Widmar, the money goes
- to a special fund from which any group of students with
- CIO status can draw for purposes consistent with the
- University's educational mission; and to the extent the
- student is interested in speech, withdrawal is permitted
- to cover the whole spectrum of speech, whether it mani-
- fests a religious view, an antireligious view, or neither.
- Our decision, then, cannot be read as addressing an
- expenditure from a general tax fund. Here, the dis-
- bursements from the fund go to private contractors for
- the cost of printing that which is protected under the
- Speech Clause of the First Amendment. This is a far
- cry from a general public assessment designed and ef-
- fected to provide financial support for a church.
- Government neutrality is apparent in the State's over-
- all scheme in a further meaningful respect. The pro-
- gram respects the critical difference -between government
- speech endorsing religion, which the Establishment
- Clause forbids, and private speech endorsing religion,
- which the Free Speech and Free Exercise Clauses pro-
- tect.- Mergens, supra, at 250 (opinion of O'Connor, J.).
- In this case, -the government has not willfully fostered
- or encouraged- any mistaken impression that the stu-
- dent newspapers speak for the University. Capitol
- Square Review and Advisory Bd. v. Pinette, ante, at __
- (slip op., at 10). The University has taken pains to
- disassociate itself from the private speech involved in
- this case. The Court of Appeals' apparent concern that
- Wide Awake's religious orientation would be attributed
- to the University is not a plausible fear, and there is no
- real likelihood that the speech in question is being
- either endorsed or coerced by the State, see Lee v.
- Weisman, 505 U. S. 577, ___ (1992); Witters, supra, at
- 489 (citing Lynch v. Donnelly, 465 U. S. 668, 688 (1984)
- (O'Connor, J., concurring)); see also Witters, supra, at
- 493 (O'Connor, J., concurring in part and concurring in
- judgment) (citing Lynch, supra, at 690 (O'Connor, J.,
- concurring)).
- The Court of Appeals (and the dissent) are correct to
- extract from our decisions the principle that we have
- recognized special Establishment Clause dangers where
- the government makes direct money payments to
- sectarian institutions, citing Roemer v. Board of Pub.
- Works of Md., 426 U. S. 736, 747 (1976); Bowen v.
- Kendrick, 487 U. S. 589, 614-615 (1988); Hunt v.
- McNair, 413 U. S., at 742; Tilton, 403 U. S., at 679-680;
- Board of Ed. of Central School Dist. No. 1 v. Allen, 392
- U. S. 236 (1968). The error is not in identifying the
- principle but in believing that it controls this case.
- Even assuming that WAP is no different from a church
- and that its speech is the same as the religious exer-
- cises conducted in Widmar (two points much in doubt),
- the Court of Appeals decided a case that was, in es-
- sence, not before it, and the dissent would have us do
- the same. We do not confront a case where, even under
- a neutral program that includes nonsectarian recipients,
- the government is making direct money payments to an
- institution or group that is engaged in religious activity.
- Neither the Court of Appeals nor the dissent, we believe,
- takes sufficient cognizance of the undisputed fact that no
- public funds flow directly to WAP's coffers.
- It does not violate the Establishment Clause for a
- public university to grant access to its facilities on a
- religion-neutral basis to a wide spectrum of student
- groups, including groups which use meeting rooms for
- sectarian activities, accompanied by some devotional
- exercises. See Widmar, 454 U. S., at 269; Mergens, 496
- U. S., at 252. This is so even where the upkeep,
- maintenance, and repair of the facilities attributed to
- those uses is paid from a student activities fund to
- which students are required to contribute. Widmar,
- supra, at 265. The government usually acts by spending
- money. Even the provision of a meeting room, as in
- Mergens and Widmar, involved governmental expendi-
- ture, if only in the form of electricity and heating or
- cooling costs. The error made by the Court of Appeals,
- as well as by the dissent, lies in focusing on the money
- that is undoubtedly expended by the government, rather
- than on the nature of the benefit received by the
- recipient. If the expenditure of governmental funds is
- prohibited whenever those funds pay for a service that
- is, pursuant to a religion-neutral program, used by a
- group for sectarian purposes, then Widmar, Mergens,
- and Lamb's Chapel would have to be overruled. Given
- our holdings in these cases, it follows that a public
- university may maintain its own computer facility and
- give student groups access to that facility, including the
- use of the printers, on a religion neutral, say first-come-
- first-served, basis. If a religious student organization
- obtained access on that religion-neutral basis and used
- a computer to compose or a printer or copy machine to
- print speech with a religious content or viewpoint, the
- State's action in providing the group with access would
- no more violate the Establishment Clause than would
- giving those groups access to an assembly hall. See
- Lamb's Chapel v. Center Moriches School Dist., 508 U. S.
- __ (1993); Widmar, supra; Mergens, supra. There is no
- difference in logic or principle, and no difference of
- constitutional significance, between a school using its
- funds to operate a facility to which students have access,
- and a school paying a third-party contractor to operate
- the facility on its behalf. The latter occurs here. The
- University provides printing services to a broad spec-
- trum of student newspapers qualified as CIOs by reason
- of their officers and membership. Any benefit to religion
- is incidental to the government's provision of secular
- services for secular purposes on a religion-neutral basis.
- Printing is a routine, secular, and recurring attribute of
- student life.
- By paying outside printers, the University in fact
- attains a further degree of separation from the student
- publication, for it avoids the duties of supervision,
- escapes the costs of upkeep, repair, and replacement
- attributable to student use, and has a clear record of
- costs. As a result, and as in Widmar, the University
- can charge the SAF, and not the taxpayers as a whole,
- for the discrete activity in question. It would be
- formalistic for us to say that the University must forfeit
- these advantages and provide the services itself in order
- to comply with the Establishment Clause. It is, of
- course, true that if the State pays a church's bills it is
- subsidizing it, and we must guard against this abuse.
- That is not a danger here, based on the considerations
- we have advanced and for the additional reason that
- the student publication is not a religious institution,
- at least in the usual sense of that term as used in our
- case law, and it is not a religious organization as used
- in the University's own regulations. It is instead a
- publication involved in a pure forum for the expression
- of ideas, ideas that would be both incomplete and chilled
- were the Constitution to be interpreted to require that
- state officials and courts scan the publication to ferret
- out views that principally manifest a belief in a divine
- being.
- Were the dissent's view to become law, it would re-
- quire the University, in order to avoid a constitutional
- violation, to scrutinize the content of student speech, lest
- the expression in question-speech otherwise protected
- by the Constitution-contain too great a religious con-
- tent. The dissent, in fact, anticipates such censorship as
- -crucial- in distinguishing between -works characterized
- by the evangelism of Wide Awake and writing that
- merely happens to express views that a given religion
- might approve.- Post, at 36. That eventuality raises
- the specter of governmental censorship, to ensure that
- all student writings and publications meet some baseline
- standard of secular orthodoxy. To impose that standard
- on student speech at a university is to imperil the very
- sources of free speech and expression. As we recognized
- in Widmar, official censorship would be far more incon-
- sistent with the Establishment Clause's dictates than
- would governmental provision of secular printing services
- on a religion-blind basis.
- -[T]he dissent fails to establish that the distinction
- [between `religious' speech and speech `about' reli-
- gion] has intelligible content. There is no indication
- when `singing hymns, reading scripture, and teach-
- ing biblical principles' cease to be `singing, teaching,
- and reading'-all apparently forms of `speech,'
- despite their religious subject matter-and become
- unprotected `worship.' . . .
- -[E]ven if the distinction drew an arguably princi-
- pled line, it is highly doubtful that it would lie
- within the judicial competence to administer.
- Merely to draw the distinction would require the
- university-and ultimately the courts-to inquire
- into the significance of words and practices to dif-
- ferent religious faiths, and in varying circumstances
- by the same faith. Such inquiries would tend in-
- evitably to entangle the State with religion in a
- manner forbidden by our cases. E.g., Walz [v. Tax
- Comm'n of New York City, 397 U. S. 664 (1970)].-
- 454 U. S., at 269-270, n. 6 (citations omitted).
- * * *
- To obey the Establishment Clause, it was not neces-
- sary for the University to deny eligibility to student
- publications because of their viewpoint. The neutrality
- commanded of the State by the separate Clauses of the
- First Amendment was compromised by the University's
- course of action. The viewpoint discrimination inherent
- in the University's regulation required public officials to
- scan and interpret student publications to discern their
- underlying philosophic assumptions respecting religious
- theory and belief. That course of action was a denial of
- the right of free speech and would risk fostering a per-
- vasive bias or hostility to religion, which could under-
- mine the very neutrality the Establishment Clause re-
- quires. There is no Establishment Clause violation in
- the University's honoring its duties under the Free
- Speech Clause.
- The judgment of the Court of Appeals must be, and is,
- reversed.
- It is so ordered.
-