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! (http://pr.atwola.com/promoclk/100126575x1221797372x1201397989/aol?redir=https:%2F%2Fwww.freescore.com%2FOffers%2FStart%2FFreeCreditRepor tAndScore.aspx%3FID%3D91831F371F138345B53A153F49D4D872%26siteid%3De927580bf7 )
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