Art writes: "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?"
I guess I look at a college scholarship as govt facilitating students opportunity to receive educative speech from the college and major of their choosing (but providing that one major from a particular viewpoint is excluded). A college education consists of students listening to educative speech, reading books, speaking out in class discussions, writing papers, and generally engaging in a whole host of expressive activities at the core of free speech. What about a govt program funding free movie tickets to needy citizens but providing that the tickets could not be used to attend a movie that expressed an anti-war point of view? Or govt providing vouchers for needy citizens to purchase newspapers but providing that the voucher could not be used to purchase a newspaper that had an editorial position in favor of same-sex marriage? Or govt providing a tax credit for the purchase of books except books expressing a viewpoint supporting abortion rights? In all of these cases, Art, assume the citizen eligible for the free tickets, newspaper voucher, or tax credit walked into your office and asked you if they have a claim under the Free Sp Cl. What would you advise them? Cheers, Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote."--Ben Franklin (perhaps misattributed, but still worthy of Franklin) "It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence." --J. Budziszewski (The Revenge of Conscience) "Once again the ancient maxim is vindicated, that the perversion of the best is the worst." -- Id. --- On Mon, 5/4/09, artspit...@aol.com <artspit...@aol.com> wrote: From: artspit...@aol.com <artspit...@aol.com> Subject: Re: Bowman v. U.S. To: religionlaw@lists.ucla.edu Date: Monday, May 4, 2009, 8:59 PM 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, nebraskalawp...@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 _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ************** 2009 3 Free CREDIT SCORES: See Your 3 Credit Scores from All 3 Bureaus FREE! 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