NEA and religion

[A.E. Brownstein]

I'm not sure why Eugene thinks government funding in what seems to be pure
speech cases is the best analogy for the funding of private schools. I
think a better analogy would be the NEA granting funds to a symphony that
only allows people of a particular faith or of a limited range of faiths to
attend concerts, requires audience members to engage in prayer before the
program begins, and only hires people of a particular faith to perform all
of the job functions involved in the event from playing  the violin to
taking tickets to selling drinks at the concession stand.

Does the NEA have a constitutional obligation to refuse to fund religious
arts projects that fit this description? Is it constitutionally permitted
to do
so.?
                                                                                 Alan
Brownstein
                                                                                 UC
Davis


At 05:21 PM 12/15/2000 -0800, you wrote:

>         Marty Lederman's points below lead me to ask the following
> question:  Does the NEA have a constitutional obligation to reject grant
> requests for art projects that are religiously themed?
>
>         We know, given NEA v. Finley, that the NEA is not a designated
> public forum; and of course we also know that it hardly funds all
> recipients.  In fact, I'm pretty sure that the NEA funds a *far* fewer
> fraction of applicants -- and thus exercises its discretion to reject
> applicants far more often -- than do government programs that provide
> benefits to K-12 schools, which I believe are generally available to the
> great majority of K-12 schools.  Moreover, to my knowledge the rules
> about which schools are included in government benefit programs are
> generally much less discretionary than the NEA rules.  Even if the
> government can set up rules that exclude Nazi schools, schools that teach
> the flat Earth theory, or schools devoted to satirizing Christianity, my
> sense is that there aren't many such rules, and in any event the rules
> that do exist are usually much less subjective than the "artistic
> excellence" criteria used by the NEA.
>
>         Nonetheless, it seems to me that the NEA does *not* have a
> constitutional duty to reject all grant requests for religiously themed
> art projects, and I'm pretty certain that Justice O'Connor's
> jurisprudence would suggest that she would vote this way.  Am I mistaken
> on either score?
>
>         Incidentally, given their votes in Rosenberger, could Stevens,
> Souter, Ginsburg, and Breyer consistently come to the conclusion that I
> come to, or would they have to conclude that a latter-day Da Vinci would
> have to be excluded if his painting would have a religious theme?
>
>         Eugene
>
>Marty Lederman writes (and I think others have echoed this):
>First, the Rosenberger program was, in effect, a private speech forum
>in  which (according to the Court) *all* student groups that engaged
>in  expression were funded, no matter what the nature of their
>expression.  As  O'Connor stressed:
>
>"[T]he 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.  . . .  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."
>
>In other words, the University funded speech (e.g., the Yellow Journal)
>that  everyone would understand it abhors and disfavors.
>
>By contrast, Louisiana presumably would not loan computers to all
>schools,  regardless of what they teach.  A school devoted to "target[ing]
>Christianity  as a subject of satire," for instance, or a school that
>teaches that the  Earth is flat, or a school that espouses Nazi ideology,
>presumably would not  receive computers.  I think most laypersons assume
>that the state *approves*  of the basic curriculum and objectives of all
>the schools that it aids, even  if no one would assume that the state
>endorses every single thing that occurs  in those schools.
>
>Second, the Louisiana program involved secondary schools, not a large
>state  university.  The distinction between primary and secondary schools
>on the one  hand, and higher ed, on the other, has of course been a
>principal (albeit not  dispositive) line of demarcation in EC law for
>years (compare, e.g., Lemon,  Levitt, Nyquist, etc. with, e.g., Tilton,
>Roemer, Hunt).  This is largely  because younger students are more
>impressionable and quicker to perceive  state endorsement (but see
>O'Connor's opinion in Mergens); and also because  in general the school
>presumably has (and exercises) more control over  student speech in high
>school than in college (see, e.g., Hazelwood, Bethel).
>
>Marty Lederman (in my personal capacity)