--- "A.E. Brownstein" <[EMAIL PROTECTED]>
wrote:
>While the Court has recognized discrimination
> against religious speech to
> constitute viewpoint discrimination in several
> cases, many of those cases,
> including Rosenberger, involved regulations with a
> fairly clear viewpoint
> discriminatory dimension to them. It is not hard to
> imagine regulations
> restricting religious speech that seem to be closer
> to subject matter
> discrimination, however. Discrimination against a
> major in theology might
> be more akin to discrimination against philosophy
> majors -- closer to
> subject matter discrimination and easier to justify
> -- at least for the
> purposes of limiting government funded scholarships
> for such programs. If
> Locke involves discrimination against religion that
> is more like subject
> matter discrimination rather than viewpoint
> discrimination, this would
> distinguish Locke from Rick's hypothetical as well.
I agree with Alan that subject matter discrimination
is different from viewpoint discrimination. Thus, if
Washington had excluded *all* theology/religious
studies majors from the Promise program, the exclusion
would arguably be subject matter and not viewpoint
discrimination. But that is not what Washington did in
Locke. It excluded theology majors only if their
course of study was "devotional" as opposed to
"objective." It was not the subject matter--religious
studies or theology--that was the problem. It was the
viewpoint--"objective" ok, "devotional" not ok--that
was the problem.
So I think Locke stands for the proposition that
scholarship programs with content/viewpoint exclusions
do not trigger the Free Speech Clause (because a
scholarship program is not a speech forum) and thus
the state is free to fund whichever majors it wishes
and to exclude whichever majors it wishes even if the
exclusions would be viewpoint based if the case
triggered the FSC.
So, a program funding all students except those
majoring in gender studies from a feminist perspective
does not even trigger the FSC, because a scholarship
program is not a speech forum.
If a student denied a scholarship under this program
challenged the exclusion under the EPC, probably only
rational basis review would be required. The case is
not a gender classification; rather all students (male
and female) are denied scholarships to pursue a
particular major. Indeed, the state might well be able
to show that more women than men receive promise
scholarships under the program as a whole, and that
even women who wish to major in feminist studies are
not denied a scholarship because, like Joshua Davey,
they can still use the scholarship they received to
study some other major. No one is denied a scholarship
under the exclusion--all recipients are simply limited
in the majors that are eligible for funding under the
program.
I think Locke is probably more of a problem for those
who favor an expansive free speech clause than for
those who favor expansive religious liberty.
Universities do lots of controversial things that
legislators don't like, and when the legislature
responds by restricting scholarships or funding for
particular majors or courses from controversial
perspectives (feminist studies, sexuality studies,
"peace" studies, economics studies from certain
perspectives, "queer" studies) Locke supports the
argument that the Free Speech Clause does not even
apply because scholarships and college subsidies are
not a forum for speech.
Am I wrong about this?
Rick Duncan
=====
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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