U-Va. case may become a landmark

State official backs religious magazine seeking school funds

By Donald P. Baker

The Washington Post, November 25, 1994

It was a short-lived effort by three University of Virginia students to put out a magazine with an evangelical Christian viewpoint, a publication that died after four issues.

But now, nearly four years after the university refused to award $ 5,862 from student activity fees to help Editor Ronald W. Rosenberger and two friends publish the magazine, the issue is scheduled to come before the U.S. Supreme Court. Legal analysts say the question of whether the university should have helped to support the magazine is a classic confrontation involving free speech and the separation of church and state.

The high court agreed last month to hear arguments — probably in February — on whether the university violated the First Amendment when it rejected the request by Rosenberger, of Great Falls, and two other Washington area students to fund the magazine on the grounds that it constituted “a religious activity.”

Rosenberger and fellow students Robert J. Prince, of Annandale, and Gregory W. Mourad, whose parents live in Gaithersburg, describe themselves as born-again Christians. They said they came up with the idea for their magazine, called Wide Awake, after deciding that student publications at the university mentioned religion only in the form of ridicule and antagonism.

They got seed money for the project by selling ads to Christian business people in the Charlottesville area and from a donation from the Christian Fellowship Church in Vienna, Rosenberger’s home congregation.

The first issue of Wide Awake was distributed free on campus in the fall of 1990. The magazine stated that its goal was 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.”

In February 1991, its founders appeared before the student council committee that allocates money from the annual $ 28 activity fee assessed to the university’s 20,000 students.

The committee rejected the application, citing university funding guidelines that bar grants to religious organizations, fraternities, sororities, honor societies and political clubs.

Rosenberger and his friends published three more issues, once a semester, before running out of money. Each 24-page edition focused on a theme: racism, eating disorders, homosexuality and the music of the rock band U2, which has three members who are Christian activists.

The students said they got the idea to sue the school because they had met while writing for a conservative political magazine, the Virginia Advocate, which also had been denied funding until it threatened to sue.

In July 1991, the students sued the university in federal court in Charlottesville, claiming violation of their rights of free speech, religion and equal protection under the law. Judge James H. Michael Jr. ruled in favor of the university. The 4th U.S. Circuit Court of Appeals agreed with Michael’s ruling on Aug. 28, 1992. Last month, the U.S. Supreme Court agreed to hear the case.

The action, which legal scholars say has the potential of being a landmark case nationally, also has acquired a political dimension within the state.

Virginia Attorney General James S. Gilmore III, a Republican who was elected with strong support from Christian activists, reversed a decision of his predecessor, Democrat Mary Sue Terry, and sided with the students and against the university, which is his client.

Gilmore said his motives aren’t political.

“This case offers the promise of a landmark decision regarding freedom of speech,” Gilmore said, “and I have concluded that it is important that we not go before the Supreme Court speaking out for discrimination in speech. Instead, we should uphold the Bill of Rights.”

Although Gilmore has filed a friend of the court brief on behalf of the students, he has told the school’s general counsel, who is an assistant attorney general assigned to the university, that he can continue to represent the school. Gilmore also has given the university permission to hire outside counsel, which it has not done.

The university’s rector, Hovey S. Dabney, said that “the university has been advised for 20 years that this policy is consistent with state and federal law and does not unconstitutionally discriminate against religious speech.”

But Dabney added that “pursuing this case provides an excellent opportunity for clarification of a complex area of First Amendment law. Other universities with similar policies also will benefit from the court’s addressing the merits of this controversy now.”

The case “has all the earmarks” of a landmark determination, said Michael W. McConnell, lead attorney for the students.

McConnell, a law professor at the University of Chicago, said the University of Virginia awards activity fund money to the Jewish Law Students Association and the Muslim Student Association, “the grounds for distinction being that they are ‘cultural’ organizations.” He said that suggests that “a fairly nebulous and subjective line is being drawn between cultural and religious” groups.

McConnell, who is a visiting professor at the University of Utah this year, said the key question in the case is “whether religion is being treated neutrally” or is being discriminated against.

The university “had no obligation to set up a student fund, but once it did, it had no business discriminating against students on the basis of their viewpoint,” said co-counsel Michael P. McDonald, of the Washington based Center for Individual Rights, which is funded by conservative philanthropic foundations.

Even liberals who have accused Gilmore of acting politically acknowledge that the case poses important constitutional questions.

“I don’t want to suggest it’s an easy case. There are arguments on both sides,” said Elliot Mincberg, legal director of People for the American Way, a liberal actRonald W. Rosenberger displays copies of Wide Awake, a magazine at the University of Virginia. The U.S. Supreme Court has agreed to hear his case.ivist group founded by TV producer Norman Lear. But Mincberg said Gilmore’s stance is “clearly politically motivated.”

Robert Peck, national legislative director of the American Civil Liberties Union, said “Gilmore’s view is entirely reasonable.”

The ACLU will nonetheless file a brief that is “generally supportive of the university,” Peck said. “It’s a difficult case, but the bottom line remains, as Madison and Jefferson both said, direct subsidies of religion from the government cannot be consistent with the concept of religious liberty.”

Special correspondent Jeff Leeds contributed to this report.