* "Wide Awake" magazine versus U. of Virginia
Topics: FreeSpeech, Education
02 Mar 1995
From: "DG Ervan Darnell"
From 3/1/95 MacNeil/Lehrer:
"Wide Awake" (WA) is a conservative Christian magazine published by, and
mostly for, students at the University of Virginia, a government school. It
sought funding from the student activity budget and was denied that funding
because it was explicitly religious. The denial was based upon university
policy reflecting First Amendment concerns that people should not be forced
to pay for religious speech. WA sued on the grounds that it was being
discriminated against because any other magazine could get money. They are
both right! Funding them violates the First Amendment and not-funding them
violates the First Amendment. Just like in the Kiryas Joel case, the answer
is simply that public schools cannot help but run afoul of the First
Amendment. A strict reading of the First Amendment would prohibit public
schools (which is a fine conclusion for a good reason so far as I am concerned).
WA's case was based on a couple of interesting instances. For instance,
there was a magazine called the "Yellow Journal" that published explicitly
anti-Christian sentiments. It got university funding. There was an Islamic
magazine, "Al Salam" that received money because it was supposedly cultural
and not religious. There is a contrived distinction. Al Salam started
publishing some articles that were more religious in nature than before. U
Va. told them which articles they could not publish to keep funding. Thus,
in the interest of free speech and freedom of religion, government schools
have pushed us to the point that a government agency is specifically
controlling content. The U Va. lawyer defended all of this as perfectly
sensible and an obvious distinction, yeah, right.
Even if this distinction were obvious, it relies on a very narrow view of
religion, it says that explicit Christianity, Judism, or Islam is religious
speech and nothing else is. That's perfectly silly too. You can bet any
goofy PC thing that comes down the pike, Wiccan or whatever, will get
funding. Even within that framework, it is broken because the pool of money
is limited. Inevitably some people will get money to publish and some
won't. Who gets left out leaves the university engaging in censorship (i.e.
WA's claim of being treated differently is legitimate, but too narrowly
applied).
It's the problem of 'which way is up?'. If the government is going to
engage in subsidy, is a cut censorship? is a greater subsidy unfairly
promoting a particular view? In this regard, it is like the welfare reform
problem where people are suing that it is discrimination to lower welfare
from $800/month to $700, but they never thought it was discrimination to
have left it at $800 instead of raising it to $900. There are no neutral
principles with which to decide the proper amount. In the magazine subsidy
case, there is no way to decide which point of view to subsidize without
*relatively* censoring some point of view by lack of funding.
In this particular case, the problem could be solved with the less drastic
measure of removing funding for student activities (some theatre groups were
also caught in the argument because of their content). But that is only a
stopgap measure, because the problem runs deep. A school's job is to
provide content and even presumably objective content like curricula runs
afoul of the same problem. This evidences itself most clearly in the
endless fighting over prayer in (primary) school and the teaching of
creationism. A similar problem happens with campaign reform laws when they
decide which parties to give money to. In all cases, the squabbling is
endless over who is getting denied access. It can never be resolved for
public schools because either someone is denied the opportunity to exercise
their religion or someone else is forced to go along.
The interesting thing about the report on MacNeil/Lehrer tonight was that no
one saw any problem, it just seemed to be a matter of fine tuning. The
report started by pointing out that two of Thomas Jefferson's ideas, freedom
of religion and freedom of speech, were in conflict at the university he
founded and thus something of great import was to be resolved, snort!
Thomas Jefferson presided over a minimalist government that never conceived
of engaging in such wholesale manipulation of the country and for which such
problems never existed. How irritating to suggest there was something
contradictory in his philosophy because of a pathetic modern shadow of it
(*). The last remark of the report was that maybe the Supreme Court would
straighten out decisions that had heretofore been "widely criticized as
vague and confusing." Well, no wonder, they obviously are not going to bite
the bullet and rule public schools unconstitutional so they are left with a
legal and philosophical contradiction to resolve, nothing but vague and
confusing law can ever come of that.
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(*) It is true he had impulses toward government education that were not
thoroughly libertarian but they were tempered toward a goal far short of the
current government involvement in education.
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