Locke and Rosenberger

[Alan Brownstein]

Rick makes several good points, but I still think the issue is not as 
clear as he suggests. 

Rick argues that discrimination against "devotional" theology majors 
constitutes viewpoint discrimination while discrimination 
against "objective" theology majors might be more properly characterized 
as subject matter discrimination. I'm not sure I'm persuaded.

It is hard to come up with analogies here, but this one might work. 
Suppose a scholarship excludes "partisan" political science majors, but 
not "objective" political science majors. A partisan political science 
major which I made up and probably does not exist, would be a major in 
Democratic Party political ideology (or Republican or Green Party or 
whatever) often used to prepare the student for being a political staff 
person in a particular political party. Is that viewpoint discrimination?
I'm not sure that I could describe the opposing viewpoint that is being 
favored? I do not typically consider partisan politic activity or 
thinking and objective political analysis to be competing viewpoints.

I don't have that problem in Rosenberger. The University of Virginia's 
discriminatory restrictions disfavored commentary from a religious 
perspective. The favored viewpoint was a secular perspective. Virginia's 
restrictions were just as viewpoint discriminatory as a program that 
exluded publications from a secular perspective and only funded religious 
periodicals. (And the University of Virginia also excluded funding for 
partisan political activities if I remember correctly. I didn't think 
that restriction was viewpoint discriminatory.)

I recognize that more recent cases like Good News Club provide some 
support for the position that discrimination against "devotional" 
activities may constitute viewpoint discrimination. But in that case, the 
school district had created a forum in which many non objective 
moralistic programs had been granted access. I am also fairly skeptical 
about the Court's free speech analysis in Good News Club and think that 
case would have been more appropriately resolved on free exercise 
grounds. After all, if dovotional activities are a viewpoint of 
expression and can not be disfavored under free speech clause doctrine 
than devotional activities are a viewpoint of expression and also can not 
be singled out for favorable regulatory treatment under the free speech 
clause. That analysis might jeopardize accommodations for religious 
worship and practice that are not extended to secular activities. 

Rick also makes a good point about Locke making universities vulnerable 
to viewpoint discriminatory funding decisions. I think that vulnerability 
exists, but I believe Rust suggests that universities have a unique role 
in our society as centers for inquiry and debate --- and government power 
to discriminate on the basis of viewpoint in funding programs might be 
mitigated accordingly. Of course, the Court's analysis in Locke ignores 
this argument as well.

Alan Brownstein
UC Davis 


> 
> --- "A.E. Brownstein" <aebrownstein at ucdavis.edu>
> wrote:
> >While the Court has recognized discrimination
> > against religious speech to 
> > constitute viewpoint discrimination in several
> > cases, many of those cases, 
> > including Rosenberger, involved regulations with a
> > fairly clear viewpoint 
> > discriminatory dimension to them. It is not hard to
> > imagine regulations 
> > restricting religious speech that seem to be closer
> > to subject matter 
> > discrimination, however. Discrimination against a
> > major in theology might 
> > be more akin to discrimination against philosophy
> > majors -- closer to 
> > subject matter discrimination and easier to justify
> > -- at least for the 
> > purposes of limiting government funded scholarships
> > for such programs. If 
> > Locke involves discrimination against religion that
> > is more like subject 
> > matter discrimination rather than viewpoint
> > discrimination, this would 
> > distinguish Locke from Rick's hypothetical as well.
> 
> I agree with Alan that subject matter discrimination
> is different from viewpoint discrimination. Thus, if
> Washington had excluded *all* theology/religious
> studies majors from the Promise program, the exclusion
> would arguably be subject matter and not viewpoint
> discrimination. But that is not what Washington did in
> Locke. It excluded theology majors only if their
> course of study was "devotional" as opposed to
> "objective." It was not the subject matter--religious
> studies or theology--that was the problem. It was the
> viewpoint--"objective" ok, "devotional" not ok--that
> was the problem.
> 
> So I think Locke stands for the proposition that
> scholarship programs with content/viewpoint exclusions
> do not trigger the Free Speech Clause (because a
> scholarship program is not a speech forum) and thus
> the state is free to fund whichever majors it wishes
> and to exclude whichever majors it wishes even if the
> exclusions would be viewpoint based if the case
> triggered the FSC.
> 
> So, a program funding all students except those
> majoring in gender studies from a feminist perspective
> does not even trigger the FSC, because a scholarship
> program is not a speech forum.
> 
> If a student denied a scholarship under this program
> challenged the exclusion under the EPC, probably only
> rational basis review would be required. The case is
> not a gender classification; rather all students (male
> and female) are denied scholarships to pursue a
> particular major. Indeed, the state might well be able
> to show that more women than men receive promise
> scholarships under the program as a whole, and that
> even women who wish to major in feminist studies are
> not denied a scholarship because, like Joshua Davey,
> they can still use the scholarship they received to
> study some other major. No one is denied a scholarship
> under the exclusion--all recipients are simply limited
> in the majors that are eligible for funding under the
> program.
> 
> I think Locke is probably more of a problem for those
> who favor an expansive free speech clause than for
> those who favor expansive religious liberty.
> Universities do lots of controversial things that
> legislators don't like, and when the legislature
> responds by restricting scholarships or funding for
> particular majors or courses from controversial
> perspectives (feminist studies, sexuality studies,
> "peace" studies, economics studies from certain
> perspectives, "queer" studies) Locke supports the
> argument that the Free Speech Clause does not even
> apply because scholarships and college subsidies are
> not a forum for speech.
> 
> Am I wrong about this?
> 
> Rick Duncan
> 
> 
> 
> 
> 
> 
> =====
> 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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