Bowman v. U.S.

[Rick Duncan]

But Doug, Rehnquist's dictum was completely unreasoned. He merely asserted that a scholarship program is not a speech forum in a case that presented only Free Exercise questions. Why not? Why is the scholarship program closer to Rust than to Rosenberger? Rehnquist doesn't even hint at an answer.

Thus, if the facts of Davey were re-litigated tomorrow, and the Free Sp issue were clearly before the Ct, it is almost a case of first impression. The dictum in Davey doesn't change the fact that the Ct has never explained why viewpoint restrictions in scholarships do not trigger serious Free Sp scrutiny.

So my hypos force the issue; and no one seems to like the answer that a scholarship exclusion for students majoring in gender studies from a feminist perspective does not even trigger serious scrutiny under the Free Sp Cl. It ought to. And if the case came before the Ct, Davey would not preclude the issue.

Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902



      
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