Rosenberger v. Rector and Visitors of University of Virginia, 92-1736
| Decision Date | 14 March 1994 |
| Docket Number | No. 92-1736,92-1736 |
| Citation | 18 F.3d 269 |
| Parties | , 89 Ed. Law Rep. 1098 Ronald W. ROSENBERGER, as a member of Wide Awake Productions; Wide Awake Productions; Wide Awake Magazine; Gregory W. Mourad; Robert J. Prince, Plaintiffs-Appellants, v. The RECTOR AND VISITORS OF the UNIVERSITY OF VIRGINIA; Edward E. Elson; W.L. Lyons Brown, Jr.; Robert G. Butcher, Jr.; N. Thomas Connally; Hovey S. Dabney; Waller H. Horsley; J. Thomas Hulvey; Evans B. Jessee; Patricia M. Kluge; Arnold H. Leon; Leigh B. Middleditch, Jr.; Elizabeth D. Morie; Freddie W. Nicholas, Sr.; S. Buford Scott; Jesse B. Wilson, III; Thomas E. Worrell, Jr.; Adam S. Arthur; Alexander G. Gilliam, Jr.; Ronald J. Stump, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Michael William McConnell, Mayer, Brown & Platt, Chicago, Illinois, for appellants. James John Mingle, University General Counsel and Special Assistant Attorney General, University of Virginia, Charlottesville, VA, for appellees.
ON BRIEF: Michael P. McDonald, Center for Individual Rights, Washington, D.C., for appellants. Paul J. Forch, Senior Assistant Attorney General, Caroline L. Lockerby, Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for appellees.
Before ERVIN, Chief Judge, WILLIAMS, Circuit Judge, and SPROUSE, Senior Circuit Judge.
We must decide whether a state university's refusal to disburse monies from its student activities fund for the benefit of a student-run religious publication violates the First and Fourteenth Amendments to the Constitution. We hold that it does not.
The University of Virginia collects a mandatory student activities fee of fourteen dollars per semester, together with tuition payments, from each of its full-time students. The proceeds of the collection are deposited in the University's Student Activities Fund ("SAF"), which is used to support the wide variety of student organizations, activities, and publications that function at the University.
To qualify for student-activity-fee funds, a student group first must attain the status of a "Contracted Independent Organization" ("CIO") at the University. CIO status is available to any group that is composed in its majority of students, is managed by officers who are full-time students, keeps an updated copy of its constitution on file with the University, and signs an anti-discrimination disclaimer. CIOs are given access to University facilities, including meeting rooms and computer terminals, as well as the right to apply for student-activity-fee funds. The standard CIO agreement executed between qualified student groups and the University states that benefits provided to the groups by the University
should not be misinterpreted as meaning that those organizations are part of or controlled by the University, that the University is responsible for the organizations' contracts or other acts or omissions, or that the University approves of the organizations' goals or activities.
As the corporate body responsible under state law for governing the institution, 1 the Rector and Visitors of the University of Virginia ("Rector and Visitors") wield ultimate decisionmaking power over the operation of the SAF. The Rector and Visitors have delegated responsibility for allocating SAF monies to the University's Student Council. A CIO seeking an SAF grant must submit a detailed application for funding to the Appropriations Committee, a subcommittee of the full Student Council, which approves or denies the request. Appeal from a denial of funding by the Appropriations Committee may be taken to the full Student Council. Upon the Council's affirmance of the Appropriations Committee's decision, a second appeal may be argued before the University's Student Activities Committee, a faculty body chaired by a designee of the Vice President for Student Affairs.
The decisions of each of these authorities with respect to awards of SAF monies must be taken in compliance with certain guidelines promulgated by the Rector and Visitors. These guidelines, adopted in 1970, charge the Student Council with administering the SAF "in a manner consistent with the educational purpose of the University as well as with State and Federal law." The guidelines prohibit several categories of student organizations from obtaining SAF funds, according to the nature of the organization and the purpose for which the funds would be used. Although they may attain CIO status, fraternities and sororities, political and religious organizations, and groups whose membership policies are exclusionary in nature are ineligible for SAF funding. The following expenditures and activities also are excluded by the guidelines: (1) honoraria or similar fees; (2) religious activities; (3) social entertainment and related expenses; (4) philanthropic contributions and activities; and (5) political activities. 2
Once a student organization attains CIO status and becomes eligible for funding, the guidelines prescribe the following criteria for allocating SAF monies among CIOs: (1) the size of the group; (2) the University-wide benefits conferred by the group's activities; and (3) the group's financial self-sufficiency. After a student organization is approved for funding, it submits expense vouchers to the SAF, which are paid only upon a determination that a particular expense is fundable under the guidelines. SAF monies are not paid to the group, but are disbursed directly to the group's creditors to discharge the fundable expense.
For the academic year 1990-91, 343 student organizations qualified as CIOs. Of these 343 groups, 135 applied for SAF funding, and 118 were awarded SAF monies. Numbered among the funded organizations were fifteen student publications; 3 also included were the Muslim Students Association, the Jewish Law Students Association, and the C.S. Lewis Society.
In September 1990 Ronald W. Rosenberger, an undergraduate at the University, joined with other University students to found Wide Awake Productions. According to its constitution, Wide Awake Productions is an unincorporated association with the stated purposes of (1) "publishing a magazine of philosophical and religious expression"; (2) "facilitating discussion which fosters an atmosphere of sensitivity to and tolerance of Christian viewpoints"; and (3) "providing a unifying focus for Christians of multicultural backgrounds." Wide Awake Productions publishes Wide Awake: A Christian Perspective at the University of Virginia ("Wide Awake "), a nonprofit journal written and edited by the student members of Wide Awake Productions. As stated by Rosenberger, who serves as editor-in-chief of Wide Awake, the journal 4 was launched when the members of Wide Awake Productions "realized that none of the fifteen student-run publications at the University provided a forum for Christian expression," and decided to fill this perceived void. See "Letter from the Editor," Wide Awake: A Christian Perspective at the University of Virginia, Nov.-Dec. 1990, at 2. Wide Awake and Wide Awake Productions are not affiliated with any religious institution, and allow any University student to join without regard to sex, race, religion, or color.
At the time notice of the instant appeal was filed, three issues of Wide Awake had been published, with approximately 5,000 copies of each issue being distributed free of charge to persons on the University campus. According to editor Rosenberger's comments in the first issue, Wide Awake 's mission is twofold: "to challenge Christians to live, in word and deed, according to the faith they proclaim[,] and to encourage students to consider what a personal relationship with Jesus Christ means." Id. In furtherance of this mission, Wide Awake "offers a Christian perspective on both personal and community issues, especially those relevant to college students at the University of Virginia." Id.
The content of the three issues of Wide Awake published thus far forms part of the record in this case. The first issue's cover story, "Eracing Mistakes," offered Christian solutions for the enduring calamity of racism, see id. at 1, 12-14; other articles treated such diverse issues as "crisis pregnancy," Oxford Christian apologeticist C.S. Lewis's ideas about evil and free will, "beating stress," and "praying with a thankful heart," all written from an avowedly Christian stance. See id. at 4-5, 6-8, 15, 21. The featured contribution in the second issue, "Out of the Closet and Into the Light," addressed the question "How should the Church respond to homosexuals ... and vice versa?" See id., Mar./Apr.1991, at 1, 14-17. The second issue also included an interview with a Christian professor of mathematics at the University, an article on Christian missionary work throughout the world, and two commentaries offering spiritual guidance (titled respectively "God's Word: A Spiritual Advantage," and "On Your Own: Hope and Spirit"). See id. at 5-7, 11-13, 20-21. The third issue contained articles about a University graduate's experiences as a missionary in Moldavia, eating disorders (titled "From Calorie to Calvary"), and a Christian musician ("Keith Green: Piano Man for Christ"). See id., Sept.-Oct. 1991, at 5-7, 12-14, 18-20. Columns in all three issues reviewed newly released recordings of music of religious disposition. 5
The plaintiffs do not dispute that in publishing Wide Awake they are engaged in a "religious activit[y]" as the SAF guidelines define the phrase. 6 Indeed, after reading its contents dispassionately, we are compelled to mark Wide Awake 's unflagging 7 invocation of religious, specifically Christian, themes. The journal's pages are pervasively devoted to providing a "Christian perspective" in printer's ink at the University of Virginia. Wide Awake 's editorial stance extends to its advertising sales: by the public release of the third issue...
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