Widmar v. Vincent

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 80-689 Argued: October 6, 1981 --- Decided: December 8, 1981
JUSTICE POWELL delivered the opinion of the court.

This case presents the question whether a state university, which makes its facilities generally available for the activities [p265] of registered student groups, may close its facilities to a registered student group desiring to use the facilities for religious worship and religious discussion.

I

It is the stated policy of the University of Missouri at Kansas City [n1] to encourage the activities of student organizations. The University officially recognizes over 100 student groups. It routinely provides University facilities for the meetings of registered organizations. Students pay an activity fee of $41 per semester (1978-1979) to help defray the costs to the University.

From 1973 until 1977, a registered religious group named Cornerstone regularly sought and received permission to conduct its meetings in University facilities. [n2] In 1977, however, the University informed the group that it could no longer meet in University buildings. The exclusion was based on a regulation, adopted by the Board of Curators in 1972, that prohibits the use of University buildings or grounds "for purposes of religious worship or religious teaching." [n3] [p266]

Eleven University students, all members of Cornerstone, brought suit to challenge the regulation in the Federal District Court for the Western District of Missouri. [n4] They alleged that the University's discrimination against religious activity and discussion violated their rights to free exercise of religion, equal protection, and freedom of speech under the First and Fourteenth Amendments to the Constitution of the United States.

Upon cross-motions for summary judgment, the District Court upheld the challenged regulation. Chess v. Widmar, 480 F.Supp. 907 (1979). It found the regulation not only justified, but required, by the Establishment Clause of the Federal Constitution. Id. at 916. Under Tilton v. Richardson, 403 U.S. 672 (1971), the court reasoned, the State [p267] could not provide facilities for religious use without giving prohibited support to an institution of religion. 480 F.Supp. at 915-916. The District Court rejected the argument that the University could not discriminate against religious speech on the basis of its content. It found religious speech entitled to less protection than other types of expression. Id. at 918.

The Court of Appeals for the Eighth Circuit reversed. Chess v. Widmar, 635 F.2d 1310 (1980). Rejecting the analysis of the District Court, it viewed the University regulation as a content-based discrimination against religious speech, for which it could find no compelling justification. Id. at 1315-1320. The court held that the Establishment Clause does not bar a policy of equal access, in which facilities are open to groups and speakers of all kinds. Id. at 1317. According to the Court of Appeals, the "primary effect" of such a policy would not be to advance religion, but rather to further the neutral purpose of developing students' "‘social and cultural awareness as well as [their] intellectual curiosity.'" Ibid. (quoting from the University bulletin's description of the student activities program, reprinted in id. at 1312, n. 1).

We granted certiorari. 450 U.S. 909. We now affirm.

II

Through its policy of accommodating their meetings, the University has created a forum generally open for use by student groups. Having done so, the University has assumed an obligation to justify its discriminations and exclusions under applicable constitutional norms. [n5] The Constitution [p268] forbids a State to enforce certain exclusions from a forum generally open to the public, even if it was not required to create the forum in the first place. See, e.g., Madison Joint School District v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 175, and n. 8 (1976) (although a State may conduct business in private session, "[w]here the State has opened a forum for direct citizen involvement," exclusions bear a heavy burden of justification); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 555-559 (1975) (because municipal theater was a public forum, city could not exclude a production without satisfying constitutional safeguards applicable to prior restraints).

The University's institutional mission, which it describes as providing a "secular education" to its students, Brief for Petitioners 44, does not exempt its actions from constitutional scrutiny. With respect to persons entitled to be there, our cases leave no doubt that the First Amendment [p269] rights of speech and association extend to the campuses of state universities. See, e.g., Healy v. James, 408 U.S. 169, 180 (1972); Tinker v. Des Moines Independent School District, 393 U.S. 503, 506 (1969); Shelton v. Tucker, 364 U.S. 479, 487 (1960).

Here, UMKC has discriminated against student groups and speakers based on their desire to use a generally open forum to engage in religious worship and discussion. These are forms of speech and association protected by the First Amendment. See, e.g., Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981); Niemotko v. Maryland, 340 U.S. 268 (1951); Saia v. New York, 334 U.S. 558 (1948). [n6] In order to justify discriminatory [p270] exclusion from a public forum based on the religious content of a group's intended speech, the University must therefore satisfy the standard of review appropriate to content-based exclusions. It must show that its regulation is necessary to serve a compelling state interest, and that it is narrowly drawn to achieve that end. See Carey v. Brown, 447 U.S. 455, 461, 464-465 (1980). [n7]

III

In this case, the University claims a compelling interest in maintaining strict separation of church and State. It derives this interest from the "Establishment Clauses" of both the Federal and Missouri Constitutions.

A

The University first argues that it cannot offer its facilities to religious groups and speakers on the terms available to [p271] other groups without violating the Establishment Clause of the Constitution of the United States. [n8] We agree that the interest of the University in complying with its constitutional obligations may be characterized as compelling. It does not follow, however, that an "equal access" policy would be incompatible with this Court's Establishment Clause cases. Those cases hold that a policy will not offend the Establishment Clause if it can pass a three-pronged test:

First, the [governmental policy] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . . ; finally, the [policy] must not foster "an excessive government entanglement with religion."

Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971). See Committee for Public Education v. Regan, 444 U.S. 646, 653 (1980); Roemer v. Maryland Public Works Bd., 426 U.S. 736, 748 (1976).

In this case, two prongs of the test are clearly met. Both the District Court and the Court of Appeals held that an open forum policy, including nondiscrimination against religious speech, [n9] would have a secular purpose [n10] and would [p272] avoid entanglement with religion. [n11] But the District Court concluded, and the University argues here, that allowing religious groups to share the limited public forum would have the "primary effect" of advancing religion. [n12] [p273]

The University's argument misconceives the nature of this case. The question is not whether the creation of a religious forum would violate the Establishment Clause. The University has opened its facilities for use by student groups, and the question is whether it can now exclude groups because of the content of their speech. See Healy v. James, 408 U.S. 169 (1972). [n13] In this context, we are unpersuaded that the primary effect of the public forum, open to all forms of discourse, would be to advance religion.

We are not oblivious to the range of an open forum's likely effects. It is possible -- perhaps even foreseeable -- that religious groups will benefit from access to University facilities. But this Court has explained that a religious organization's enjoyment of merely "incidental" benefits does not violate the prohibition against the "primary advancement" of religion. Committee for Public Education v. Nyquist, 413 U.S. 756, [p274] 771 (1973); see, e.g., Roemer v. Maryland Public Works Bd., 426 U.S. 736 (1976); Hunt v. McNair, 413 U.S. 734 (1973); McGowan v. Maryland, 366 U.S. 420, 422 (1961).

We are satisfied that any religious benefits of an open forum at UMKC would be "incidental" within the meaning of our cases. Two factors are especially relevant.

First, an open forum in a public university does not confer any imprimatur of state approval on religious sects or practices. As the Court of Appeals quite aptly stated, such a policy "would no more commit the University . . . to religious goals" than it is "now committed to the goals of the Students for a Democratic Society, the Young Socialist Alliance," or any other group eligible to use its facilities. 635 F.2d at 1317. [n14]

Second, the forum is available to a broad class of nonreligious, as well as religious, speakers; there are over 100 recognized student groups at UMKC. The provision of benefits to so broad a spectrum of groups is an important index of secular effect. See, e.g., Wolman v. Walter, 433 U.S. 229, 240-241 (1977); Committee for Public Education v. Nyquist, supra, at 781-782, and n. 38. If the Establishment Clause barred the extension of general benefits to religious groups, "a church could not be protected by the police and fire departments, [p275] or have its public sidewalk kept in repair." Roemer v. Maryland Public Works Bd., supra, at 747 (plurality opinion); quoted in Committee for Public Education v. Regan, 444 U.S. at 658, n. 6. [n15] At least in the absence of empirical evidence that religious groups will dominate UMKC's open forum, we agree with the Court of Appeals that the advancement of religion would not be the forum's "primary effect."

B

Arguing that the State of Missouri has gone further than the Federal Constitution in proscribing indirect state support for religion, [n16] the University claims a compelling interest in complying with the applicable provisions of the Missouri Constitution. [n17]

The Missouri courts have not ruled whether a general policy of accommodating student groups, applied equally to those wishing to gather to engage in religious and nonreligious speech, would offend the State Constitution. We need not, however, determine how the Missouri courts would decide this issue. It is also unnecessary for us to decide whether, under the Supremacy Clause, [n18] a state interest, derived from its own constitution, could ever outweigh free [p276] speech interests protected by the First Amendment. We limit our holding to the case before us.

On one hand, respondents' First Amendment rights are entitled to special constitutional solicitude. Our cases have required the most exacting scrutiny in cases in which a State undertakes to regulate speech on the basis of its content. See, e.g., Carey v. Brown, 447 U.S. 455 (1980); Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972). On the other hand, the state interest asserted here -- in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution -- is limited by the Free Exercise Clause, and, in this case, by the Free Speech Clause as well. In this constitutional context, we are unable to recognize the State's interest as sufficiently "compelling" to justify content-based discrimination against respondents' religious speech.

IV

Our holding in this case in no way undermines the capacity of the University to establish reasonable time, place, and manner regulations. [n19] Nor do we question the right of the University to make academic judgments as to how best to allocate scarce resources or "to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring in result); see University of California Regents v. Bakke, 438 U.S. 265, 312-313 (1978) (opinion of POWELL, J., announcing the judgment of the Court). [n20] Finally, [p277] we affirm the continuing validity of cases, e.g., Healy v. James, 408 U.S. at 188-189, that recognize a university's right to exclude even First Amendment activities that violate reasonable campus rules or substantially interfere with the opportunity of other students to obtain an education.

The basis for our decision is narrow. Having created a forum generally open to student groups, the University seeks to enforce a content-based exclusion of religious speech. Its exclusionary policy violates the fundamental principle that a state regulation of speech should be content-neutral, and the University is unable to justify this violation under applicable constitutional standards.

For this reason, the decision of the Court of Appeals is

Affirmed.

1. The University of Missouri at Kansas City (UMKC) is one of four campuses of the University of Missouri, an institution of the State of Missouri.

2. Cornerstone is an organization of evangelical Christian students from various denominational backgrounds. According to an affidavit filed in 1977, "perhaps twenty students . . . participate actively in Cornerstone and form the backbone of the campus organization." Affidavit of Florian Chess (Sept. 29, 1977), quoted in Chess v. Widmar, 480 F.Supp. 907, 911 (WD Mo.1979). Cornerstone held its on-campus meetings in classrooms and in the student center. These meetings were open to the public, and attracted up to 125 students. A typical Cornerstone meeting included prayer, hymns, Bible commentary, and discussion of religious views and experiences.

3. The pertinent regulations provide as follows:

4.0314.0107 No University buildings or grounds (except chapels as herein provided) may be used for purposes of religious worship or religious teaching by either student or nonstudent groups. . . . The general prohibition against use of University buildings and grounds for religious worship or religious teaching is a policy required, in the opinion of The Board of Curators, by the Constitution and laws of the State and is not open to any other construction. No regulations shall be interpreted to forbid the offering of prayer or other appropriate recognition of religion at public functions held in University facilities. . . .

4.0314.0108 Regular chapels established on University grounds may be used for religious services but not for regular recurring services of any groups. Special rules and procedures shall be established for each such chapel by the Chancellor. It is specifically directed that no advantage shall be given to any religious group.

There is no chapel on the campus of UMKC. The nearest University chapel is at the Columbia campus, approximately 125 miles east of UMKC.

Although the University had routinely approved Cornerstone meetings before 1977, the District Court found that University officials had never

authorized a student organization to utilize a University facility for a meeting where they had full knowledge that the purposes of the meeting include[d] religious worship or religious teaching.

Chess v. Widmar, supra, at 910.

4. Respondent Clark Vincent and Florian Chess, a named plaintiff in the action in the District Court, were among the students who initiated the action on October 13, 1977. Named as defendants were the petitioner Gary Widmar, the Dean of Students at UMKC, and the University's Board of Curators.

5. This Court has recognized that the campus of a public university, at least for its students, possesses many of the characteristics of a public forum. See generally Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972); Cox v. Louisiana, 379 U.S. 536 (1965). "The college classroom, with its surrounding environs, is peculiarly ‘the marketplace of ideas.'" Healy v. James, 408 U.S. 169, 180 (1972). Moreover, the capacity of a group or individual

to participate in the intellectual give and take of campus debate . . . [would be] limited by denial of access to the customary media for communicating with the administration, faculty members, and other students.

Id. at 181-182. We therefore have held that students enjoy First Amendment rights of speech and association on the campus, and that the "denial [to particular groups] of use of campus facilities for meeting and other appropriate purposes" must be subjected to the level of scrutiny appropriate to any form of prior restraint. Id. at 181, 184.

At the same time, however, our cases have recognized that First Amendment rights must be analyzed "in light of the special characteristics of the school environment." Tinker v. Des Moines Independent School District, 393 U.S. 503, 506 (1969). We continue to adhere to that view. A university differs in significant respects from public forums such as streets or parks, or even municipal theaters. A university's mission is education, and decisions of this Court have never denied a university's authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities. We have not held, for example, that a campus must make all of its facilities equally available to students and nonstudents alike, or that a university must grant free access to all of its grounds or buildings.

6. The dissent argues that "religious worship" is not speech generally protected by the "free speech" guarantee of the First Amendment and the "equal protection" guarantee of the Fourteenth Amendment. If "religious worship" were protected "speech," the dissent reasons, "the Religion Clauses would be emptied of any independent meaning in circumstances in which religious practice took the form of speech." Post at 284. This is a novel argument. The dissent does not deny that speech about religion is speech entitled to the general protections of the First Amendment. See post at 283-284, and n. 2, 286. It does not argue that descriptions of religious experiences fail to qualify as "speech." Nor does it repudiate last Term's decision in Heffron v. International Society for Krishna Consciousness, Inc., which assumed that religious appeals to nonbelievers constituted protected "speech." Rather, the dissent seems to attempt a distinction between the kinds of religious speech explicitly protected by our cases and a new class of religious "speech act[s]," post at 285, constituting "worship." There are at least three difficulties with this distinction.

First, the dissent fails to establish that the distinction has intelligible content. There is no indication when "singing hymns, reading scripture, and teaching biblical principles," post at 283, cease to be "singing, teaching, and reading" all apparently forms of "speech," despite their religious subject matter -- and become unprotected "worship."

Second, even if the distinction drew an arguably principled line, it is highly doubtful that it would lie within the judicial competence to administer. Cf. Fowler v. Rhode Island, 345 U.S. 67, 70 (1953). Merely to draw the distinction would require the university -- and ultimately the courts -- to inquire into the significance of words and practices to different religious faiths, and in varying circumstances by the same faith. Such inquiries would tend inevitably to entangle the State with religion in a manner forbidden by our cases. E.g., Walz v. Tax Comm'n, 397 U.S. 664, 668 (1970).

Finally, the dissent fails to establish the relevance of the distinction on which it seeks to rely. The dissent apparently wishes to preserve the vitality of the Establishment Clause. See post at 284-286. But it gives no reason why the Establishment Clause, or any other provision of the Constitution, would require different treatment for religious speech designed to win religious converts, see Heffron, supra, than for religious worship by persons already converted. It is far from clear that the State gives greater support in the latter case than in the former.

7. See also Healy v. James, supra, at 184:

It is to be remembered that the effect of the College's denial of recognition was a form of prior restraint, denying to petitioners' organization the range of associational activities described above. While a college has a legitimate interest in preventing disruption on the campus, which . . . may justify such restraint, a "heavy burden" rests on the college to demonstrate the appropriateness of that action.

8. "Congress shall make no law respecting an establishment of religion. . . ." U.S.Const., Amdt. 1. The Establishment Clause has been made applicable to the States through the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).

9. As the dissent emphasizes, the Establishment Clause requires the State to distinguish between "religious" speech -- speech, undertaken or approved by the State, the primary effect of which is to support an establishment of religion -- and "nonreligious" speech -- speech, undertaken or approved by the State, the primary effect of which is not to support an establishment of religion. This distinction is required by the plain text of the Constitution. It is followed in our cases. E.g., Stone v. Graham, 449 U.S. 39 (1980). The dissent attempts to equate this distinction with its view of an alleged constitutional difference between religious "speech" and religious "worship." See post at 286, and n. 3. We think that the distinction advanced by the dissent lacks a foundation in either the Constitution or in our cases, and that it is judicially unmanageable.

10. It is the avowed purpose of UMKC to provide a forum in which students can exchange ideas. The University argues that use of the forum for religious speech would undermine this secular aim. But, by creating a forum, the University does not thereby endorse or promote any of the particular ideas aired there. Undoubtedly many views are advocated in the forum with which the University desires no association.

Because this case involves a forum already made generally available to student groups, it differs from those cases in which this Court has invalidated statutes permitting school facilities to be used for instruction by religious groups, but not by others. See, e.g., McCollum v. Board of Education, 333 U.S. 203 (1948). In those cases, the school may appear to sponsor the views of the speaker.

11. We agree with the Court of Appeals that the University would risk greater "entanglement" by attempting to enforce its exclusion of "religious worship" and "religious speech." See Chess v. Widmar, 635 F.2d 1310, 1318 (CA8 1980). Initially, the University would need to determine which words and activities fall within "religious worship and religious teaching." This alone could prove "an impossible task in an age where many and various beliefs meet the constitutional definition of religion." O'Hair v. Andrus, 198 U.S.App.D.C.198, 203, 613 F.2d 931, 936 (1979) (footnote omitted); see L. Tribe, American Constitutional Law § 14-6 (1978). There would also be a continuing need to monitor group meetings to ensure compliance with the rule.

12. In finding that an "equal access" policy would have the primary effect of advancing religion, the District Court in this case relied primarily on Tilton v. Richardson, 403 U.S. 672 (1971). In Tilton, this Court upheld the grant of federal financial assistance to sectarian colleges for secular purposes, but circumscribed the terms of the grant to ensure its constitutionality. Although Congress had provided that federally subsidized buildings could not be used for sectarian or religious worship for 20 years, the Court considered this restriction insufficient:

If, at the end of 20 years, the building is, for example, converted into a chapel or otherwise used to promote religious interests, the original federal grant will, in part, have the [constitutionally impermissible] effect of advancing religion.

Id. at 683. From this statement, the District Court derived the proposition that state funds may not be used to provide or maintain buildings used by religious organizations.

We do not believe that Tilton can be read so broadly. In Tilton, the Court was concerned that a sectarian institution might convert federally funded buildings to religious uses or otherwise stamp them with the imprimatur of religion. But nothing in Tilton suggested a limitation on the State's capacity to maintain forums equally open to religious and other discussions. Cases before and after Tilton have acknowledged the right of religious speakers to use public forums on equal terms with others. See, e.g., Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981); Saia v. New York, 334 U.S. 558 (1948).

13. This case is different from cases in which religious groups claim that the denial of facilities not available to other groups deprives them of their rights under the Free Exercise Clause. Here, the University's forum is already available to other groups, and respondents' claim to use that forum does not rest solely on rights claimed under the Free Exercise Clause. Respondents' claim also implicates First Amendment rights of speech and association, and it is on the bases of speech and association rights that we decide the case. Accordingly, we need not inquire into the extent, if any, to which free exercise interests are infringed by the challenged University regulation. Neither do we reach the questions that would arise if state accommodation of free exercise and free speech rights should, in a particular case, conflict with the prohibitions of the Establishment Clause.

14. University students are, of course, young adults. They are less impressionable than younger students, and should be able to appreciate that the University's policy is one of neutrality toward religion. See Tilton v. Richardson, supra, at 685-686. The University argues that the Cornerstone students themselves admitted in affidavits that

[s]tudents know that, if something is on campus, then it is a student organization, and they are more likely to feel comfortable attending a meeting.

Affidavit of Florian Frederick Chess, App. 18, 19. In light of the large number of groups meeting on campus, however, we doubt students could draw any reasonable inference of University support from the mere fact of a campus meeting place. The University's student handbook already notes that the University's name will not "be identified in any way with the aims, policies, programs, products, or opinions of any organization or its members." 1980-1981 UMKC Student Handbook 25.

15. This Court has similarly rejected

the recurrent argument that all aid [to parochial schools] is forbidden because aid to one aspect of an institution frees it to spend its other resources on religious ends.

Hunt v. McNair, 413 U.S. 734, 743 (1973).

16. See, e.g., Americans United v. Rogers, 638 S.W.2d 711, 720 (Mo.) (en banc) (holding Missouri Constitution requires stricter separation of church and State than does Federal Constitution), cert. denied, 429 U.S. 1029 (1976); Harfst v. Hoegen, 349 Mo. 808, 816-816, 163 S.W.2d 609, 613-614 (Mo.1942) (en banc) (same).

17. See Mo. Const., Art. 1, 6, 7; Art. 9, 8. In Luetkemeyer v. Kaufmann, 364 F.Supp. 376 (WD Mo.1973), aff'd, 419 U.S. 888 (1974), the District Court found Missouri had a compelling interest in compliance with its own Constitution.

18. U.S.Const., Art. VI, cl. 2.

19. See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 116 (1972) ("The nature of a place, ‘the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable,'" quoting Wright, The Constitution on the Campus, 22 Vand.L.Rev. 1027, 1042 (1969)).

20. In his opinion concurring in the judgment, post at 277-287, JUSTICE STEVENS expresses concern that use of the terms "compelling state interest" and "public forum" may "undermine the academic freedom of public universities." As the text above makes clear, this concern is unjustified. See also n. 5, supra. Our holding is limited to the context of a public forum created by the University itself.
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