Category: Uncategorized

RONALD W. ROSENBERGER, ET AL v. RECTOR AND VISITORS OF THE UNIVERSITYOF VIRGINIASUPREME COURT OF THE UNITED STATES515 U.S. 819June 29, 1995, Decided

KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST,C. J., and O'CONNOR, SCALIA, and THOMAS, JJ., joined. SOUTER, J., fileda dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined.

JUSTICE KENNEDY delivered the opinion of the Court.

The University of Virginia, an instrumentality of the Commonwealth forwhich it is named and thus bound by the First and Fourteenth Amendments,authorizes the payment of outside contractors for the printing costs ofa variety of student publications. It withheld any authorization for paymentson behalf of petitioners for the sole reason that their student paper "primarilypromotes or manifests a particular belief in or about a deity or an ultimatereality." That the paper did promote or manifest views within the definedexclusion seems plain enough. The challenge is to the University's regulationand its denial of authorization, the case raising issues under the Speechand Establishment Clauses of the First Amendment.

I

Before a student group is eligible to submit bills from its outsidecontractors for payment by the fund described below, it must become a "ContractedIndependent Organization" (CIO). CIO status is available to any group themajority of whose members are students, whose managing officers are full-timestudents, and that complies with certain procedural requirements. A CIO must file its constitution with the University; must pledge not todiscriminate in its membership; and must include in dealings with thirdparties and in all written materials a disclaimer, stating that the CIOis independent of the University and that the University is not responsiblefor the CIO. CIO's enjoy access to University facilities, including meetingrooms and computer terminals. A standard agreement signed betweeneach CIO and the University provides that the benefits and opportunitiesafforded to CIO's "should not be misinterpreted as meaning that those organizationsare part of or controlled by the University, that the University is responsiblefor the organizations' contracts or other acts or omissions, or that theUniversity approves of the organizations' goals or activities."

All CIO's may exist and operate at the University, but some are alsoentitled to apply for funds from the Student Activities Fund (SAF). Establishedand governed by University Guidelines, the purpose of the SAF is to supporta broad range of extracurricular student activities that "are related tothe educational purpose of the University." The SAF is based on theUniversity's "recognition that the availability of a wide range of opportunities"for its students "tends to enhance the University environment." TheGuidelines require that it be administered "in a manner consistent withthe educational purpose of the University as well as with state and federallaw." The SAF receives its money from a mandatory fee of $ 14 persemester assessed to each full-time student. The Student Council, electedby the students, has the initial authority to disburse the funds, but itsactions are subject to review by a faculty body chaired by a designee ofthe Vice President for Student Affairs.

Some, but not all, CIO's may submit disbursement requests to the SAF.The Guidelines recognize 11 categories of student groups that may seekpayment to third-party contractors because they "are related to the educationalpurpose of the University of Virginia." One of these is "studentnews, information, opinion, entertainment, or academic communications mediagroups." The Guidelines also specify, however, that the costs of certainactivities of CIO's that are otherwise eligible for funding will not bereimbursed by the SAF. The student activities that are excluded from SAFsupport are religious activities, philanthropic contributions and activities,political activities, activities that would jeopardize the University'stax-exempt status, those which involve payment of honoraria or similarfees, or social entertainment or related expenses. The prohibition on "politicalactivities" is defined so that it is limited to electioneering and lobbying.The Guidelines provide that "these restrictions on funding political activitiesare not intended to preclude funding of any otherwise eligible studentorganization which . . . espouses particular positions or ideological viewpoints,including those that may be unpopular or are not generally accepted." A"religious activity," by contrast, is defined as any activity that "primarilypromotes or manifests a particular belief in or about a deity or an ultimatereality."

The Guidelines prescribe these criteria for determining the amountsof third-party disbursements that will be allowed on behalf of each eligiblestudent organization: the size of the group, its financial self-sufficiency,and the University-wide benefit of its activities. If an organization seeksSAF support, it must submit its bills to the Student Council, which paysthe organization's creditors upon determining that the expenses are appropriate.No direct payments are made to the student groups. During the 1990-1991academic year, 343 student groups qualified as CIO's. One hundred thirty-fiveof them applied for support from the SAF, and 118 received funding. Fifteenof the groups were funded as "student news, information, opinion, entertainment,or academic communications media groups."

Petitioners' organization, Wide Awake Productions (WAP), qualified asa CIO. Formed by petitioner Ronald Rosenberger and other undergraduatesin 1990, WAP was established "to publish a magazine of philosophical andreligious expression," "to facilitate discussion which fosters an atmosphereof sensitivity to and tolerance of Christian viewpoints," and "to providea unifying focus for Christians of multicultural backgrounds." WAPpublishes Wide Awake: A Christian Perspective at the University of Virginia.The paper's Christian viewpoint was evident from the first issue, in whichits editors wrote that the journal "offers a Christian perspective on bothpersonal and community issues, especially those relevant to college studentsat the University of Virginia." The editors committed the paper toa two-fold mission: "to challenge Christians to live, in word and deed,according to the faith they proclaim and to encourage students to considerwhat a personal relationship with Jesus Christ means." The first issuehad articles about racism, crisis pregnancy, stress, prayer, C. S. Lewis'ideas about evil and free will, and reviews of religious music. In thenext two issues, Wide Awake featured stories about homosexuality, Christianmissionary work, and eating disorders, as well as music reviews and interviewswith University professors. Each page of Wide Awake, and the end of eacharticle or review, is marked by a cross. The advertisements carried inWide Awake also reveal the Christian perspective of the journal. For themost part, the advertisers are churches, centers for Christian study, orChristian bookstores. By June 1992, WAP had distributed about 5,000 copiesof Wide Awake to University students, free of charge.

WAP had acquired CIO status soon after it was organized. This is animportant consideration in this case, for had it been a "religious organization,"WAP would not have been accorded CIO status. As defined by the Guidelines,a "religious organization" is "an organization whose purpose is to practicea devotion to an acknowledged ultimate reality or deity." At no stagein this controversy has the University contended that WAP is such an organization.

A few months after being given CIO status, WAP requested the SAF topay its printer $ 5,862 for the costs of printing its newspaper. The AppropriationsCommittee of the Student Council denied WAP's request on the ground thatWide Awake was a "religious activity" within the meaning of the Guidelines,i. e., that the newspaper "promoted or manifested a particular beliefin or about a deity or an ultimate reality." It made its determinationafter examining the first issue. WAP appealed the denial to the fullStudent Council, contending that WAP met all the applicable Guidelinesand that denial of SAF support on the basis of the magazine's religiousperspective violated the Constitution. The appeal was denied without furthercomment, and WAP appealed to the next level, the Student Activities Committee.In a letter signed by the Dean of Students, the committee sustained thedenial of funding....

II

It is axiomatic that the government may not regulate speech based onits substantive content or the message it conveys. Other principlesfollow from this precept. In the realm of private speech or expression,government regulation may not favor one speaker over another. Discriminationagainst speech because of its message is presumed to be unconstitutional. These rules informed our determination that the government offends theFirst Amendment when it imposes financial burdens on certain speakers basedon the content of their expression. When the government targets not subjectmatter, but particular views taken by speakers on a subject, the violationof the First Amendment is all the more blatant. Viewpoint discriminationis thus an egregious form of content discrimination. The government mustabstain from regulating speech when the specific motivating ideology orthe opinion or perspective of the speaker is the rationale for the restriction.

These principles provide the framework forbidding the State from exercisingviewpoint discrimination, even when the limited public forum is one ofits own creation. In a case involving a school district's provision ofschool facilities for private uses, we declared that "there is no questionthat the District, like the private owner of property, may legally preservethe property under its control for the use to which it is dedicated." .The necessities of confining a forum to the limited and legitimate purposesfor which it was created may justify the State in reserving it for certaingroups or for the discussion of certain topics. Once it hasopened a limited forum, however, the State must respect the lawful boundariesit has itself set. The State may not exclude speech where its distinctionis not "reasonable in light of the purpose served by the forum," nor may it discriminate against speech on the basis of its viewpoint. TheSAF is a forum more in a metaphysical than in a spatial or geographic sense,but the same principles are applicable.

The University does acknowledge (as it must in light of our precedents)that "ideologically driven attempts to suppress a particular point of vieware presumptively unconstitutional in funding, as in other contexts," butinsists that this case does not present that issue because the Guidelinesdraw lines based on content, not viewpoint. As we have noted, discriminationagainst one set of views or ideas is but a subset or particular instanceof the more general phenomenon of content discrimination. And, it mustbe acknowledged, the distinction is not a precise one. It is, in a sense,something of an understatement to speak of religious thought and discussionas just a viewpoint, as distinct from a comprehensive body of thought.The nature of our origins and destiny and their dependence upon the existenceof a divine being have been subjects of philosophic inquiry throughouthuman history. We conclude, nonetheless, that here viewpoint discriminationis the proper way to interpret the University's objections to Wide Awake.By the very terms of the SAF prohibition, the University does not excludereligion as a subject matter but selects for disfavored treatment thosestudent journalistic efforts with religious editorial viewpoints. Religionmay be a vast area of inquiry, but it also provides, as it did here, aspecific premise, a perspective, a standpoint from which a variety of subjectsmay be discussed and considered. The prohibited perspective, not the generalsubject matter, resulted in the refusal to make third-party payments, forthe subjects discussed were otherwise within the approved category of publications.

The dissent's assertion that no viewpoint discrimination occurs becausethe Guidelines discriminate against an entire class of viewpoints reflectsan insupportable assumption that all debate is bipolar and that antireligiousspeech is the only response to religious speech. Our understanding of thecomplex and multifaceted nature of public discourse has not embraced sucha contrived description of the marketplace of ideas. If the topic of debateis, for example, racism, then exclusion of several views on that problemis just as offensive to the First Amendment as exclusion of only one. Itis as objectionable to exclude both a theistic and an atheistic perspectiveon the debate as it is to exclude one, the other, or yet another political,economic, or social viewpoint. The dissent's declaration that debate isnot skewed so long as multiple voices are silenced is simply wrong; thedebate is skewed in multiple ways....

The University tries to escape the consequences of our holding in Lamb'sChapel by urging that this case involves the provision of funds ratherthan access to facilities. The University begins with the unremarkableproposition that the State must have substantial discretion in determininghow to allocate scarce resources to accomplish its educational mission.The University argues that content-based funding decisions are both inevitableand lawful. Were the reasoning of Lamb's Chapel to apply to fundingdecisions as well as to those involving access to facilities, it is urged,its holding "would become a judicial juggernaut, constitutionalizing theubiquitous content-based decisions that schools, colleges, and other governmententities routinely make in the allocation of public funds."

To this end the University relies on our assurance in Widmarv. Vincent, supra. There, in the course of striking down a publicuniversity's exclusion of religious groups from use of school facilitiesmade available to all other student groups, we stated: "Nor do we questionthe right of the University to make academic judgments as to how best toallocate scarce resources." The quoted language in Widmarwas but a proper recognition of the principle that when the State is thespeaker, it may make content-based choices. When the University determinesthe content of the education it provides, it is the University speaking,and we have permitted the government to regulate the content of what isor is not expressed when it is the speaker or when it enlists private entitiesto convey its own message.

It does not follow, however, and we did not suggest in Widmar,that viewpoint-based restrictions are proper when the University does notitself speak or subsidize transmittal of a message it favors but insteadexpends funds to encourage a diversity of views from private speakers.A holding that the University may not discriminate based on the viewpointof private persons whose speech it facilitates does not restrict the University'sown speech, which is controlled by different principles.

The distinction between the University's own favored message and theprivate speech of students is evident in the case before us. The Universityitself has taken steps to ensure the distinction in the agreement eachCIO must sign. The University declares that the student groups eligiblefor SAF support are not the University's agents, are not subject to itscontrol, and are not its responsibility. Having offered to pay the third-partycontractors on behalf of private speakers who convey their own messages,the University may not silence the expression of selected viewpoints.

The University urges that, from a constitutional standpoint, fundingof speech differs from provision of access to facilities because moneyis scarce and physical facilities are not. Beyond the fact the fact thatin any given case this proposition might not be true as an empirical matter,the underlying premise that the University could discriminate based onviewpoint if demand for space exceeded its availability is wrong as well.The government cannot justify viewpoint discrimination among private speakerson the economic fact of scarcity.

Vital First Amendment speech principles are at stake here. The firstdanger to liberty lies in granting the State the power to examine publicationsto determine whether or not they are based on some ultimate idea and, ifso, for the State to classify them. The second, and corollary, danger isto speech from the chilling of individual thought and expression. Thatdanger is especially real in the University setting, where the State actsagainst a background and tradition of thought and experiment that is atthe center of our intellectual and philosophic tradition. In ancientAthens, and, as Europe entered into a new period of intellectual awakening,in places like Bologna, Oxford, and Paris, universities began as voluntaryand spontaneous assemblages or concourses for students to speak and towrite and to learn. The quality and creative power of student intellectuallife to this day remains a vital measure of a school's influence and attainment.For the University, by regulation, to cast disapproval on particular viewpointsof its students risks the suppression of free speech and creative inquiryin one of the vital centers for the Nation's intellectual life, its collegeand university campuses.

The Guideline invoked by the University to deny third-party contractorpayments on behalf of WAP effects a sweeping restriction on student thoughtand student inquiry in the context of University sponsored publications.The prohibition on funding on behalf of publications that "primarily promoteor manifest a particular belief in or about a deity or an ultimate reality,"in its ordinary and common-sense meaning, has a vast potential reach. Theterm "promotes" as used here would comprehend any writing advocating aphilosophic position that rests upon a belief in a deity or ultimate reality. Were the prohibition applied with much vigor at all, it would bar fundingof essays by hypothetical student contributors named Plato, Spinoza, andDescartes. And if the regulation covers, as the University says it does, those student journalistic efforts that primarily manifest or promote abelief that there is no deity and no ultimate reality, then undergraduatesnamed Karl Marx, Bertrand Russell, and Jean-Paul Sartre would likewisehave some of their major essays excluded from student publications. Ifany manifestation of beliefs in first principles disqualifies the writing,as seems to be the case, it is indeed difficult to name renowned thinkerswhose writings would be accepted, save perhaps for articles disclaimingall connection to their ultimate philosophy. Plato could contrive perhapsto submit an acceptable essay on making pasta or peanut butter cookies,provided he did not point out their (necessary) imperfections.

Based on the principles we have discussed, we hold that the regulationinvoked to deny SAF support, both in its terms and in its application tothese petitioners, is a denial of their right of free speech guaranteedby the First Amendment. It remains to be considered whether the violationfollowing from the University's action is excused by the necessity of complyingwith the Constitution's prohibition against state establishment of religion.We turn to that question....

III

Before its brief on the merits in this Court, the University had arguedat all stages of the litigation that inclusion of WAP's contractors inSAF funding authorization would violate the Establishment Clause. We grantedcertiorari on this question: "Whether the Establishment Clause compelsa state university to exclude an otherwise eligible student publicationfrom participation in the student activities fund, solely on the basisof its religious viewpoint, where such exclusion would violate the Speechand Press Clauses if the viewpoint of the publication were nonreligious."

A central lesson of our decisions is that a significant factor in upholdinggovernmental programs in the face of Establishment Clause attack is theirneutrality towards religion. We have held that the guarantee of neutralityis respected, not offended, when the government, following neutral criteriaand evenhanded policies, extends benefits to recipients whose ideologiesand viewpoints, including religious ones, are broad and diverse. More than once have we rejected the position that the Establishment Clauseeven justifies, much less requires, a refusal to extend free speech rightsto religious speakers who participate in broad-reaching government programsneutral in design.

The governmental program here is neutral toward religion. There is nosuggestion that the University created it to advance religion or adoptedsome ingenious device with the purpose of aiding a religious cause. Theobject of the SAF is to open a forum for speech and to support variousstudent enterprises, including the publication of newspapers, in recognitionof the diversity and creativity of student life. WAP did not seeka subsidy because of its Christian editorial viewpoint; it sought fundingas a student journal, which it was.

The neutrality of the program distinguishes the student fees from atax levied for the direct support of a church or group of churches. A taxof that sort, of course, would run contrary to Establishment Clause concernsdating from the earliest days of the Republic. The apprehensions of ourpredecessors involved the levying of taxes upon the public for the soleand exclusive purpose of establishing and supporting specific sects. Theexaction here, by contrast, is a student activity fee designed to reflectthe reality that student life in its many dimensions includes the necessityof wide-ranging speech and inquiry and that student expression is an integralpart of the University's educational mission.

JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG, andJUSTICE BREYER join, dissenting.

The Court today, for the first time, approves direct funding of corereligious activities by an arm of the State. It does so, however, onlyafter erroneous treatment of some familiar principles of law implementingthe First Amendment's Establishment and Speech Clauses, and by viewingthe very funds in question as beyond the reach of the Establishment Clause'sfunding restrictions as such. Because there is no warrant for distinguishingamong public funding sources for purposes of applying the First Amendment'sprohibition of religious establishment, I would hold that the University'srefusal to support petitioners' religious activities is compelled by theEstablishment Clause. I would therefore affirm.

I

The central question in this case is whether a grant from the StudentActivities Fund to pay Wide Awake's printing expenses would violatethe Establishment Clause. Although the Court does not dwell on the detailsof Wide Awake's message, it recognizes something sufficiently religiousin the publication to demand Establishment Clause scrutiny. Although theCourt places great stress on the eligibility of secular as well as religiousactivities for grants from the Student Activities Fund, it recognizes thatsuch evenhanded availability is not by itself enough to satisfy constitutionalrequirements for any aid scheme that results in a benefit to religion.Something more is necessary to justify any religious aid. Some Membersof the Court, at least, may think the funding permissible on a view thatit is indirect, since the money goes to Wide Awake's printer, not throughWide Awake's own checking account. The Court's principal reliance, however,is on an argument that providing religion with economically valuable servicesis permissible on the theory that services are economically indistinguishablefrom religious access to governmental speech forums, which sometimes ispermissible. But this reasoning would commit the Court to approving directreligious aid beyond anything justifiable for the sake of access to speakingforums. The opinion of the Court makes the novel assumption thatonly direct aid financed with tax revenue is barred, and draws the erroneousconclusion that the involuntary Student Activities Fee is not a tax. Theresulting decision is in unmistakable tension with the accepted law thatthe Court continues to avow.

A

The Court's difficulties will be all the more clear after a closer lookat Wide Awake than the majority opinion affords. The character of the magazineis candidly disclosed on the opening page of the first issue, where theeditor-in-chief announces Wide Awake's mission in a letter to the readershipsigned, "Love in Christ": it is "to challenge Christians to live, in wordand deed, according to the faith they proclaim and to encourage studentsto consider what a personal relationship with Jesus Christ means." The masthead of every issue bears St. Paul's exhortation, that "the hourhas come for you to awake from your slumber, because our salvation is nearernow than when we first believed. Romans 13:11." Each issue of Wide Awakecontained in the record makes good on the editor's promise and echoes theApostle's call to accept salvation....

This writing is no merely descriptive examination of religious doctrineor even of ideal Christian practice in confronting life's social and personalproblems. Nor is it merely the expression of editorial opinion that incidentallycoincides with Christian ethics and reflects a Christian view of humanobligation. It is straightforward exhortation to enter into a relationshipwith God as revealed in Jesus Christ, and to satisfy a series of moralobligations derived from the teachings of Jesus Christ. These are not thewords of "student news, information, opinion, entertainment, or academiccommunication . . ." , but the words of "challenge [to] Christians to live,in word and deed, according to the faith they proclaim and . . . to considerwhat a personal relationship with Jesus Christ means". The subject is notthe discourse of the scholar's study or the seminar room, but of the evangelist'smission station and the pulpit. It is nothing other than the preachingof the word, which (along with the sacraments) is what most branches ofChristianity offer those called to the religious life.

Using public funds for the direct subsidization of preaching the wordis categorically forbidden under the Establishment Clause, and if the Clausewas meant to accomplish nothing else, it was meant to bar this use of publicmoney. Evidence on the subject antedates even the Bill of Rights itself,as may be seen in the writings of Madison, whose authority on questionsabout the meaning of the Establishment Clause is well settled. Fouryears before the First Congress proposed the First Amendment, Madison gavehis opinion on the legitimacy of using public funds for religious purposes,in the Memorial and Remonstrance Against Religious Assessments, which playedthe central role in ensuring the defeat of the Virginia tax assessmentbill in 1786 and framed the debate upon which the Religion Clauses stand:

"Who does not see that . . . the same authority which can forcea citizen to contribute three pence only of his property for the supportof any one establishment, may force him to conform to any other establishmentin all cases whatsoever?"

Madison wrote against a background in which nearly every Colony had exacteda tax for church support, the practice having become "so commonplace asto shock the freedom-loving colonials into a feeling of abhorrence." Madison'sRemonstrance captured the colonists' "conviction that individual religiousliberty could be achieved best under a government which was stripped ofall power to tax, to support, or otherwise to assist any or all religions,or to interfere with the beliefs of any religious individual or group...."

The principle against direct funding with public money is patently violatedby the contested use of today's student activity fee. n3 Like today's taxesgenerally, the fee is Madison's threepence. The University exercises thepower of the State to compel a student to pay it, and the use ofany part of it for the direct support of religious activity thus strikesat what we have repeatedly held to be the heart of the prohibition on establishment....

Nothing in the Court's opinion would lead me to end this enquiry intothe application of the Establishment Clause any differently from the wayI began it. The Court is ordering an instrumentality of the State to supportreligious evangelism with direct funding. This is a flat violation of theEstablishment Clause.

II

Given the dispositive effect of the Establishment Clause's bar to fundingthe magazine, there should be no need to decide whether in the absenceof this bar the University would violate the Free Speech Clause by limitingfunding as it has done. ...

There is no viewpoint discrimination in the University's applicationof its Guidelines to deny funding to Wide Awake. Under those Guidelines,a "religious activity," which is not eligible for funding, is "an activitywhich primarily promotes or manifests a particular belief(s) in or abouta deity or an ultimate reality." It is clear that this is the basison which Wide Awake Productions was denied funding.

If the Guidelines were written or applied so as to limit only such Christianadvocacy and no other evangelical efforts that might compete with it, thediscrimination would be based on viewpoint. But that is not what the regulationauthorizes; it applies to Muslim and Jewish and Buddhist advocacy as wellas to Christian. And since it limits funding to activities promoting ormanifesting a particular belief not only "in" but "about" a deity or ultimatereality, it applies to agnostics and atheists as well as it does to deistsand theists. The Guidelines, and their application to Wide Awake, thusdo not skew debate by funding one position but not its competitors. Asunderstood by their application to Wide Awake, they simply deny fundingfor hortatory speech that "primarily promotes or manifests" any view onthe merits of religion; they deny funding for the entire subject matterof religious apologetics.

The Court, of course, reads the Guidelines differently, but while Ibelieve the Court is wrong in construing their breadth, the important pointis that even on the Court's own construction the Guidelines impose no viewpointdiscrimination. In attempting to demonstrate the potentially chilling effectsuch funding restrictions might have on learning in our Nation's universities,the Court describes the Guidelines as "a sweeping restriction on studentthought and student inquiry," disentitling a vast array of topics to funding.As the Court reads the Guidelines to exclude "any writing that is explicableas resting upon a premise which presupposes the existence of a deity orultimate reality,", as well as "those student journalistic effortswhich primarily manifest or promote a belief that there is no deity andno ultimate reality," the Court concludes that the major works of writersfrom Descartes to Sartre would be barred from the funding forum. The Courtgoes so far as to suggest that the Guidelines, properly interpreted, toleratenothing much more than essays on "making pasta or peanut butter cookies."Ibid.

Now, the regulation is not so categorically broad as the Court protests.The Court reads the word "primarily" ("primarily promotes or manifestsa particular belief(s) in or about a deity or an ultimate reality") rightout of the Guidelines, whereas it is obviously crucial in distinguishingbetween works characterized by the evangelism of Wide Awake and writingthat merely happens to express views that a given religion might approve,or simply descriptive writing informing a reader about the position ofa given religion. But, as I said, that is not the important point. Evenif the Court were indeed correct about the funding restriction's categoricalbreadth, the stringency of the restriction would most certainly not workany impermissible viewpoint discrimination under any prior understandingof that species of content discrimination. If a university wished to fundno speech beyond the subjects of pasta and cookie preparation, itsurely would not be discriminating on the basis of someone's viewpoint,at least absent some controversial claim that pasta and cookies did notexist. The upshot would be an instructional universe without higher education,but not a universe where one viewpoint was enriched above its competitors.

The Guidelines are thus substantially different from the access restrictionconsidered in Lamb's Chapel, the case upon which the Court heavilyrelies in finding a viewpoint distinction here....

III

Since I cannot see the future I cannot tell whether today's decisionportends much more than making a shambles out of student activity feesin public colleges. Still, my apprehension is whetted by Chief JusticeBurger's warning in Lemon v. Kurtzman (1971): "in constitutionaladjudication some steps, which when taken were thought to approach 'theverge,' have become the platform for yet further steps. A certain momentumdevelops in constitutional theory and it can be a 'downhill thrust' easilyset in motion but difficult to retard or stop."

I respectfully dissent.