4th Cir rules in Columbia Union College v. Clarke

[A.E. Brownstein]

I was going to ask the same question, Mark. And how does the Finley case
fit into all of this. Was the funding program "selective"? (That's how
Scalia distinguished Rosenberger in Finley) And if it wasn't, would there
be a different constitutional analysis if the state did intend to be
selective in the award of grants. (I've got an article in the works trying
to figure out when government selctivity in allocating resources and access
for expression moves you from a limited public forum to a non-public forum
and when it moves you out of the world of forums altogether (as Scalia
thought it did in Finley). I think it is an important question because the
prohibition against viewpoint discrimination still applies to non-public
forum selectivity but to at least some justices, it doesn't seem to apply
to non-forum selectivity.

Also, if the Free Speech Clause requires equal funding of religious
colleges under Rosenberger, does that mean that any exemptions from general
regulations provided to religious college but not secular colleges would
also constitute viewpoint discrimination? (I assume any such exemptions
would not be required by the Free Exercise Clause after Smith.)

                                                                                        Alan Brownstein
                                                                                        UC Davis


At 06:01 AM 10/30/98 -0800, you wrote:
>At 05:52 PM 10/28/98 -0800, Eugene Volokh wrote:
>>        Columbia Union College was excluded from Maryland's Sellinger
>>grant program, which provides annual state-funded grants of qualifying
>>private colleges, because it was "pervasively sectarian."
>>
>>        Held:  (1)  Such an exclusion presumptively violates the 1st Am
>>under Rosenberger, and requires strict scrutiny. ....
>>
>
>>
>>        Holding (1) of this case makes clear that such programs would be
>>presumptively unconstitutional under Rosenberger.  And assuming that
>>*including* religious schools on an evenhanded basis would be
>>constitutional -- which Jackson v. Benson says would be the case, and
>>which this case does not deny (since it explicitly distinguishes block
>>grants to schools from money that flows as a result of parental choices)
>>-- then there's nothing to rebut this presumption.  The exclusionary
>>program is subject to strict scrutiny, and fails strict scrutiny.
>>
>>        Any thoughts?
>
>        Did the Court conclude that the Sellinger grant program was a public
>forum?
>
>Mark Rahdert
>Temple Law School
>
>