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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