Rosenberger v. Rector and Visitors of Univ. of Va.,
515 U.S. 819 (1995)

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No. 94-329. Argued March 1, 1995-Decided June 29,1995

Respondent University of Virginia, a state instrumentality, authorizes payments from its Student Activities Fund (SAF) to outside contractors for the printing costs of a variety of publications issued by student groups called "Contracted Independent Organizations" (CIO's). The SAF receives its money from mandatory student fees and is designed to support a broad range of extracurricular student activities related to the University's educational purpose. CIO's must include in their dealings with third parties and in all written materials a disclaimer stating that they are independent of the University and that the University is not responsible for them. The University withheld authorization for payments to a printer on behalf of petitioners' CIO, Wide Awake Productions (WAP), solely because its student newspaper, Wide Awake: A Christian Perspective at the University of Virginia, "primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality," as prohibited by the University's SAF Guidelines. Petitioners filed this suit under 42 U. S. C. § 1983, alleging, inter alia, that the refusal to authorize payment violated their First Amendment right to freedom of speech. After the District Court granted summary judgment for the University, the Fourth Circuit affirmed, holding that the University's invocation of viewpoint discrimination to deny third-party payment violated the Speech Clause, but concluding that the discrimination was justified by the necessity of complying with the Establishment Clause.


1. The Guideline invoked to deny SAF support, both in its terms and in its application to these petitioners, is a denial of their right of free speech. Pp. 828-837.

(a) The Guideline violates the principles governing speech in limited public forums, which apply to the SAF under, e. g., Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 46-47. In determining whether a State is acting within its power to preserve the limits it has set for such a forum so that the exclusion of a class of speech there is legitimate, see, e. g., id., at 49, this Court has observed a distinction between, on the one hand, content discrimination-i. e., discrimination



against speech because of its subject matter-which may be permissible if it preserves the limited forum's purposes, and, on the other hand, viewpoint discrimination-i. e., discrimination because of the speaker's specific motivating ideology, opinion, or perspective-which is presumed impermissible when directed against speech otherwise within the forum's limitations, see id., at 46. The most recent and most apposite case in this area is Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 393, in which the Court held that permitting school property to be used for the presentation of all views on an issue except those dealing with it from a religious standpoint constitutes prohibited viewpoint discrimination. Here, as in that case, the State's actions are properly interpreted as unconstitutional viewpoint discrimination rather than permissible line-drawing based on content: By the very terms of the SAF prohibition, the University does not exclude religion as a subject matter, but selects for disfavored treatment those student journalistic efforts with religious editorial viewpoints. Pp. 828-832.

(b) The University's attempt to escape the consequences of Lamb's Chapel by urging that this case involves the provision of funds rather than access to facilities is unavailing. Although it may regulate the content of expression when it is the speaker or when it enlists private entities to convey its own message, Rust v. Sullivan, 500 U. S. 173; Widmar v. Vincent, 454 U. S. 263, 276, the University may not discriminate based on the viewpoint of private persons whose speech it subsidizes, Regan v. Taxation with Representation of Wash., 461 U. S. 540, 548. Its argument that the scarcity of public money may justify otherwise impermissible viewpoint discrimination among private speakers is simply wrong. Pp. 832-835.

(c) Vital First Amendment speech principles are at stake here.

The Guideline at issue has a vast potential reach: The term "promotes" as used there would comprehend any writing advocating a philosophic position that rests upon a belief (or nonbelief) in a deity or ultimate reality, while the term "manifests" would bring within the prohibition any writing resting upon a premise presupposing the existence (or nonexistence) of a deity or ultimate reality. It is difficult to name renowned thinkers whose writings would be accepted, save perhaps for articles disclaiming all connection to their ultimate philosophy. pp.835-837.

2. The violation following from the University's denial of SAF support to petitioners is not excused by the necessity of complying with the Establishment Clause. Pp. 837-846.

(a) The governmental program at issue is neutral toward religion.

Such neutrality is a significant factor in upholding programs in the face of Establishment Clause attack, and the guarantee of neutrality is not

Full Text of Opinion

Primary Holding

If a university uses tuition money to support secular groups, it must use some of those funds to support religious groups.


Ronald Rosenberger and other students at the University of Virginia founded a student religious magazine entitled Wide Awake. This was designed to bring together Christians from multicultural backgrounds as well as promoting tolerance for Christian viewpoints by providing philosophical and religious content. Many of the articles actually did not relate directly to religion, instead covering topics such as racism, contemporary literature, and eating disorders. As a registered student organization, Wide Awake could apply for university financial assistance with its printing costs. When it did, however, the university denied its application for funds on the grounds that it was a religious activity.

Under university policy, UVA withheld funds designated for student organizations from religious or political groups as well as any other activities that would undermine its tax-exempt status. The money for the funds was collected from students each semester through an activities fee. An organization that would be classified as promoting religious activity was defined as a group that primarily promoted a particular set of beliefs. The editors of Wide Awake argued that this was not an appropriate classification for the magazine, but they exhausted their options in internal appeals to no effect. The dean of students ruled that the funds had been properly withheld.

Procedural History

US District Court for the Western District of Virginia - 795 F. Supp. 175 (W.D. Va. 1992)

Summary judgment granted to defendants. The university did not violate the freedom of speech principles embodied by the First Amendment and was justified in withholding funds by its interest in complying with the Establishment Clause.

US Court of Appeals for the Fourth Circuit - 18 F.3d 269

Affirmed. The Fourth Circuit found that UVA was caught between two First Amendment violations, since it had violated free speech rights with a content-based policy discriminating against religious and political speech, but it would violate the Establishment Clause instead if it funded the religious magazine.



  • Anthony M. Kennedy (Author)
  • William Hubbs Rehnquist
  • Sandra Day O'Connor
  • Antonin Scalia
  • Clarence Thomas

A university or other educational institution can be considered a limited public forum, and viewpoint-based discrimination against speech is unconstitutional in that setting even though the government has more control than in an ordinary environment. While a university can control content on which it expends its own funds, student organizations at a university are not its agents and are not subject to its control or oversight. The majority pointed out that educational institutions are particularly important in stimulating a diversity of viewpoints and exposing young adults to many cultural perspectives. Its definition of what could constitute a religious organization was overly broad because it would encompass content on secular philosophy and literature, or any content connected to them.

The Establishment Clause does not go as far as to force the government to infringe on the free speech rights of religious organizations that are participating in government programs. The government may not provide them with special benefits, but it is not required to withhold the same benefits that are granted to secular organizations. Broadly speaking, the student organizations at UVA were neutral because they embraced the full spectrum of viewpoints. The university also could not be held responsible for or associated with the speech, since the organizations were clearly separate from its official organs.


  • Sandra Day O'Connor (Author)

O'Connor was mostly concerned with explaining why giving an equal amount of funds to religious student organizations would not violate the Establishment Clause. She pointed out that there were limits on the use of the funds, which were designated for third-party reimbursements, that the magazine was independent from the university and was clearly not endorsed by the university, and that the university already funded other organizations that could be said to have competing viewpoints. O'Connor also argued that student control over the funding sufficiently separated it from the administration's control.


  • Clarence Thomas (Author)

Introducing the historical background of the First Amendment, Thomas argued that James Madison and its other drafters did not intend the Establishment Clause as a sweeping ban on any state programs that support religious activity when that support is part of a larger, content-neutral program. Government benefits may be available to religious groups to the same degree that they are available to similarly situated secular parties.


  • David H. Souter (Author)
  • John Paul Stevens
  • Ruth Bader Ginsburg
  • Stephen G. Breyer

Carefully examining the contents and presentation of the magazine, Souter argued that its design made its religious message clear. He pointed out that even the articles on secular topic approached them from a religious perspective and incorporated Christian teachings. According to Souter, funding this type of publication would depart not only from the Establishment Clause but precedents during the colonial era, when this type of activity was viewed as violating the separation of church and state. He felt that the Clause should be strictly construed to forbid any direct government funding of religious activities.

Case Commentary

The Establishment Clause cannot be used by an educational institution to shield itself from liability when it tries to subtly control student viewpoints related to religion by denying funding on the basis that providing funding would violate the Clause.

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