Locke and Rosenberger

[Lupu]

The standard of review might be up for grabs in a case like the one 
that Rick has suggested.  Exclusion of "womens' studies from a 
feminist perspective" might be seen as sufficiently akin to sex 
discrimination that a standard stricter than rationality might attach; if 
so, perhaps "divisiveness" or "nonobjectivity" might not be good 
enough reasons to explain this exclusion, especially if the state 
includes analogous subjects (e.g., race studies from a minority 
perspective, or women's studies from a traditional perspective).  
The question Rick puts seems simpler if there is nothing 
"suspicious" or "viewpoint discriminatory" about the exclusion  (e.g., 
no "business majors".)  Once the state qualifies the exclusion with a 
viewpoint restriction ("economics majors with an anti-capitalist 
perspective"), however, I think the First Amendment does come into 
play and the state must justify the exclusion of the particular 
viewpoint.  But perhaps that's not such a difficult burden in the most 
plausible cases.  If so, then Locke is an even broader affirmation 
than might appear of state discretion to finance study in some 
subjects, and from some perspectives, but not others.  Is that a 
surprise or a problem?  State universities must decide all the time 
which subjects to teach, and their faculty hiring frequently reflects 
some consideration of viewpoints as well.  (Perhaps Rick will feel 
better if Locke is not about a power of the state to uniquely exclude 
devotional religious studies.  The Locke opinion never claims that, 
of course.  But, however it might be rerationalized, the opinion does 
appear to rest on some claims of religious and clergy 
distinctiveness, doesn't it?)      


On 15 Apr 2004 at 13:47, Rick Duncan wrote:

> Chip's point is a good one. But if all the state needs
> is a rational basis for the exclusion, it might say
> that women's studies from a feminist perspective is
> too divisive or not sufficiently objective in the
> opinion of the state to justify funding. That, of
> course, was the problem with devotional studies in
> Locke--an "objective" major in Theology or Religious
> Studies was eligible for funding under the Promise
> program. That same concern should pass rational basis
> review under the EPC for the exclusion of feminist
> studies. No?
> 
> What about Free Speech? Well, if Locke is correct,
> this is not a Free Speech case because a scholarship
> program is not a forum for speech. But if it is a free
> speech case, and if both cases are correctly described
> as viwepoint discrimination, then a mere rational
> basis is not sufficient in either case. Indeed, it is
> not clear that even a compelling interest justifies
> viewpoint suppression under the FSC. 
> 
> I just don't see how it can be viewpoint
> discrimination under FSC in one case, and not trigger
> the FSC at all in the other case. 
> 
> Am I missing something, Chip?
> 
> Rick Duncan
> 
> 
> --- Lupu <iclupu at law.gwu.edu> wrote:
> > Rick Duncan wrote:
> > 
> > Let's assume a state adopts a promise
> > scholarship program that is available to all needy
> > students who meet certain income and gpa
> > requirements
> > except those "pursuing a degree in women's studies
> > from a feminist perspective?" Does this law really
> > pass scrutiny under the free speech clause because
> > the
> > program is not a forum for speech, but rather a
> > financial assistance program for needy students?
> > 
> > 
> > Not all exclusions are alike.  Doesn't the state
> > have to have 
> > legitimate reasons for excluding a single subject,
> > taught from a 
> > particular viewpoint?  Whar sort of reason would
> > that be in the 
> > "women's studies" hypothetical?  Rick doesn't want
> > to recognize that 
> > Locke is about the constitutional distinctiveness of
> > religion; 
> > Washington State is free to exclude devotional
> > theology (or include 
> > it, if it chooses) because it is free to have its
> > own church-state 
> > separation policy, anchored in historical concerns
> > about the 
> > relationship between the state and the clergy (no
> > regulation, no 
> > funding).  Is there any comparable concern that
> > justifies the 
> > women's studies exclusion?  If not, might such an
> > exclusion violate 
> > the equal protection clause and/or the free speeech
> > clause?
> > 
> > Chip Lupu  
> > 
> > Ira C. ("Chip") Lupu
> > F. Elwood & Eleanor Davis Professor of Law 
> > The George Washington University Law School 
> > 2000 H St., NW
> > Washington D.C 20052
> > 
> > (202) 994-7053
> > 
> > ICLUPU at main.nlc.gwu.edu
> > ICLUPU at law.gwu.edu
> > 
> > _______________________________________________
> > To post, send message to Religionlaw at lists.ucla.edu
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> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> 
> 
> =====
> Rick Duncan 
> Welpton Professor of Law 
> University of Nebraska College of Law 
> Lincoln, NE 68583-0902
> 
> "When the Round Table is broken every man must follow either Galahad
> or Mordred: middle things are gone." C.S.Lewis, Grand Miracle
> 
> "I will not be pushed, filed, stamped, indexed, briefed, debriefed, or
> numbered."  --The Prisoner
> 
> 
> 
> 
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Ira C. ("Chip") Lupu
F. Elwood & Eleanor Davis Professor of Law 
The George Washington University Law School 
2000 H St., NW
Washington D.C 20052

(202) 994-7053

ICLUPU at main.nlc.gwu.edu
ICLUPU at law.gwu.edu