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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