Chip's point is a good one. But if all the state needs
is a rational basis for the exclusion, it might say
that women's studies from a feminist perspective is
too divisive or not sufficiently objective in the
opinion of the state to justify funding. That, of
course, was the problem with devotional studies in
Locke--an "objective" major in Theology or Religious
Studies was eligible for funding under the Promise
program. That same concern should pass rational basis
review under the EPC for the exclusion of feminist
studies. No?
What about Free Speech? Well, if Locke is correct,
this is not a Free Speech case because a scholarship
program is not a forum for speech. But if it is a free
speech case, and if both cases are correctly described
as viwepoint discrimination, then a mere rational
basis is not sufficient in either case. Indeed, it is
not clear that even a compelling interest justifies
viewpoint suppression under the FSC.
I just don't see how it can be viewpoint
discrimination under FSC in one case, and not trigger
the FSC at all in the other case.
Am I missing something, Chip?
Rick Duncan
--- Lupu <[EMAIL PROTECTED]> wrote:
> Rick Duncan wrote:
>
> Let's assume a state adopts a promise
> scholarship program that is available to all needy
> students who meet certain income and gpa
> requirements
> except those "pursuing a degree in women's studies
> from a feminist perspective?" Does this law really
> pass scrutiny under the free speech clause because
> the
> program is not a forum for speech, but rather a
> financial assistance program for needy students?
>
>
> Not all exclusions are alike. Doesn't the state
> have to have
> legitimate reasons for excluding a single subject,
> taught from a
> particular viewpoint? Whar sort of reason would
> that be in the
> "women's studies" hypothetical? Rick doesn't want
> to recognize that
> Locke is about the constitutional distinctiveness of
> religion;
> Washington State is free to exclude devotional
> theology (or include
> it, if it chooses) because it is free to have its
> own church-state
> separation policy, anchored in historical concerns
> about the
> relationship between the state and the clergy (no
> regulation, no
> funding). Is there any comparable concern that
> justifies the
> women's studies exclusion? If not, might such an
> exclusion violate
> the equal protection clause and/or the free speeech
> clause?
>
> Chip Lupu
>
> Ira C. ("Chip") Lupu
> F. Elwood & Eleanor Davis Professor of Law
> The George Washington University Law School
> 2000 H St., NW
> Washington D.C 20052
>
> (202) 994-7053
>
> [EMAIL PROTECTED]
> [EMAIL PROTECTED]
>
> _______________________________________________
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=====
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
"When the Round Table is broken every man must follow either Galahad or Mordred:
middle things are gone." C.S.Lewis, Grand Miracle
"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered."
--The Prisoner
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