Bowman v. U.S.

[ArtSpitzer at aol.com]

Thanks for the compliment, Rick.

I can see how funding a Department of X, or a Chair of X Studies, could be 
characterized as funding the speech of one or more professors about X.   But 
it's hard for me to see how funding a scholarship for students who study X 
amounts to funding the student's speech about X, or about anything.   The 
students aren't being paid to speak (unless, I suppose, their course of study 
is drama or rhetoric). Why is receiving a scholarship a form of private 
speech?   Is receiving a tax refund a form of speech?

Art

In a message dated 5/4/09 11:41:55 PM, nebraskalawprof at yahoo.com writes:


> Art Spitzer asks some great questions:
> 
> "I'm not sure where I come out on this, but does your position mean that 
> if Big State U. sets up a Department of Peace Studies it also has to set up 
> a Department of War Studies?  If an alumnus donates money to create a chair 
> for the study of democratic institutions, the university can't accept 
> those funds unless it also finds funds for a chair for the study of 
> totalitarian institutions?  If there's a scholarship for a student majoring in dispute 
> resolution, there must also be a scholarship for a student majoring in 
> dispute fomentation?   Why are these examples of private speech rather than of 
> government subsidy for the speech (and only the speech) it wishes to 
> promote?"
> 
> 
> I think that the govt can say whatever it wants to say when it is the 
> speaker. Thus, the University of Nebraska can set up a Dept of Peace if that is 
> what it wishes to do. Its curriculum is its own speech, so it can adopt a 
> particular viewpoint if that is what it wishes to do.
> 
> Moreover, the govt could probably fund a scholarship only for certain 
> subjects (as opposed to certain viewpoints)--such as a scholarship for nursing 
> majors or education majors. This would probably best be considered a 
> non-public forum in which content restrictions are permitted, but viewpoint 
> restrictions are prohibited.
> 
> The problem in Davey was that Washington created a general scholarship 
> covering all majors including theology majors and excluded only one 
> viewpoint--devotional theology majors (those majoring in theology from a believing 
> perspective as opposed to an agnostic perspective). This amounts to viewpoint 
> discrimination in a forum for private educative speech--this is not a Rust 
> govt speech case, it is more like a Rosenberger case in which govt is 
> seeking to facilitate the private speech of citizens who have qualified for a 
> generally available scholarship on the basis of objective characteristics 
> (GPA and family income). Thus, viewpoint discrimination is forbidden.
> 
>  It is the clear viewpoint discrimination that make the hypos I pose seem 
> so clearly unconstitutional--a scholarship for all students except those 
> who major in gender studies from a feminist perspective, or except those who 
> major in economics from a socialist perspective. Would anyone on the list 
> uphold such viewpoint restrictions on scholarships?
> 
> Rehnquist's unreasoned Fr Sp dictum in Davey, a Fr Ex case, should not 
> preclude the issue from being considered in a future case in which the Fr Sp 
> issue is part of the question presented. The test suites I propose make 
> Rehnquist's non-analysis in Davey cry out for full and fair reconsideration.
> 
> 
> Rick Duncan
> Welpton Professor of Law
> University of Nebraska College of Law
> Lincoln, NE 68583-0902
> 
> 
> 
> 
> 
> 
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