Rosenberger v. University of Virginia
Decided on June 29, 1995; 515 US 819

When a public university provides funds for the printing costs of a variety of student publications, it cannot withhold the funds to a students' group that would otherwise qualify on the ground that their newspaper has religious content.


A. Issues Discussed: Free speech, separation of church and state

B. Legal Question Presented:

Did the University of Virginia violate the First Amendment rights of its Christian magazine staff by denying them the same funding resources that it made available to secular student-run magazines?


A. Background:

"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' (CIOs). 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.

CIOs 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."

On certiorari, the US Supreme Court reversed the judgment of the US Court of Appeals for the Fourth Circuit.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
"A public university may not directly subsidize religious proselytizing. Although the government may not deny benefits to a 'viewpoint' that is religiously based, Lamb's Chapel v. Center Moriches Union Free School Dist., the Establishment Clause bars direct funding of religion. The clause does not bar indirect support such as police and fire service or tax credits, but it bars direct discretionary transfer of state funds to church coffers, prohibiting governmental funding of pervasively religious activity such as proselytizing." "The First Amendment's guarantees of speech and press prohibit a public university from withholding funds from an otherwise eligible student publication solely because of its religious viewpoint. The establishment clause does not bar religious speakers and publications from participating in public benefits on an equal and nondiscriminatory basis. The holding below creates an unnecessary conflict among clauses of the First Amendment."
Opposing Side
John C. Jeffries, Jr., argued the cause for respondents. With him on the brief was James J. Mingle.

A brief of amici curiae urging affirmance was filed for the American Civil Liberties Union et al. by Marjorie Heins, Steven R. Shapiro, and Stephen B. Pershing.

Michael W. McConnell argued the cause for petitioners. With him on the brief was Michael P. McDonald.


The Supreme Court held that:

"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...

By the very terms of the SAF [Student Activities Fund] prohibition, the University does not exclude religion as a subject matter, but selects for disfavored treatment those student journalistic efforts with religious editorial viewpoints... Although it may regulate the content of expression when it is the speaker or when it enlists private entities to convey its own message, the University may not discriminate based on the viewpoint of private persons whose speech it subsidizes...

The governmental program at issue is neutral toward religion... This case is not controlled by the principle that special Establishment Clause dangers exist where the government makes direct money payments to sectarian institutions, since it is undisputed that no public funds flow directly into WAP's [Wide Awake Production's] coffers under the program at issue. A public university does not violate the Establishment Clause when it grants access to its facilities on a religion-neutral basis to a wide spectrum of student groups, even if some of those groups would use the facilities for devotional exercises...

The University provides printing services to a broad spectrum of student newspapers. Were the contrary view to become law, the University could only avoid a constitutional violation by scrutinizing the content of student speech, lest it contain too great a religious message. Such censorship would be far more inconsistent with the Establishment Clause's dictates than would governmental provision of secular printing services on a religion-blind basis."

The US Supreme Court reversed the United States Court of Appeals for the Fourth Circuit judgment.

Justice Vote: 4 Pro vs. 5 Con
  • Souter, D. Pro (Wrote dissenting opinion)
  • Stevens, J. Pro (Joined dissenting opinion)
  • Ginsburg, R. Pro (Joined dissenting opinion)
  • Breyer, S. Pro (Joined dissenting opinion)
  • Kennedy, A. Con (Wrote majority opinion)
  • O'Connor, S. Con (Wrote concurring opinion)
  • Thomas, C. Con (Wrote concurring opinion)
  • Rehnquist, W. Con (Joined majority opinion)
  • Scalia, A. Con (Joined majority opinion)

    The ACLU, as amicus curiae, urged affirmance of the judgment of the US Court of Appeals for the Fourth Circuit; the Supreme Court reversed in a 4-5 vote, giving the ACLU an apparent loss.