892
Souter, J., dissenting
differently from the way I began it. The Court is ordering an instrumentality of the State to support religious evangelism with direct funding. This is a flat violation of the Establishment Clause.
II
Given the dispositive effect of the Establishment Clause's bar to funding the magazine, there should be no need to decide whether in the absence of this bar the University would violate the Free Speech Clause by limiting funding as it has done. Widmar, 454 U. S., at 271 (university's compliance with its Establishment Clause obligations can be a compelling interest justifying speech restriction). But the Court's speech analysis may have independent application, and its flaws should not pass unremarked.
The Court acknowledges, ante, at 832, the necessity for a university to make judgments based on the content of what may be said or taught when it decides, in the absence of unlimited amounts of money or other resources, how to honor its educational responsibilities. Widmar, supra, at 276; cf. Perry, 460 U. S., at 49 (subject matter and speaker identity distinctions "are inherent and inescapable in the process of limiting a nonpublic forum to activities compatible with the intended purpose of the property"). Nor does the Court generally question that in allocating public funds a state university enjoys spacious discretion. Cf. Rust v. Sullivan, 500 U. S. 173, 194 (1991) ("[W]hen the government appropriates public funds to establish a program it is entitled to define the limits of that program"); Regan v. Taxation with Representation of Wash., 461 U. S. 540 (1983) (upholding government subsidization decision partial to one class of speaker).11 Ac-11 The Court draws a distinction between a State's use of public funds to advance its own speech and the State's funding of private speech, suggesting that authority to make content-related choices is at its most powerful when the State undertakes the former. Ante, at 833-835. I would not argue otherwise, see Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260, 270-273 (1988), but I do suggest that this case reveals the difficulties that can be encountered in drawing this distinction. There is a communi-
Page: Index Previous 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 NextLast modified: October 4, 2007