95-08-25:  BOARD CHANGES FUNDING GUIDELINES: STUDENT RELIGIOUS
PUBLICATIONS NOW ELIGIBLE


     Taking the step required by the U.S. Supreme Court's end-
of-term decision in the "Rosenberger" case, concerning the
Christian student magazine Wide Awake, the Board of Visitors
amended its guidelines for student activity fees at a special
meeting Aug. 21. 

Student religious publications, described as "news,
information, opinion, entertainment or academic
communications media," are now eligible for funding through
Student Council on the same terms as other student
organizations. They may not be excluded, according to the new
section in the guidelines, because they express religious views
or because "such groups primarily promote or manifest a
particular belief(s) in or about a deity or an ultimate reality."

The board's action clears the way for Wide Awake
Publications, the Christian magazine that sued the University
in 1991 after funding was denied, to apply for a share of the
fees to be allocated next month during Student Council's
supplemental appropriation process. Funds for most
organizations were allocated last spring. 

Still to be determined by lower federal courts is whether
Student Council must now provide the $5,862 originally sought
by Wide Awake and how much of plaintiff Ronald Rosenberger's
$420,000 legal fees must be paid by U.Va. Those costs would
be in addition to the $100,000 to 200,000 the University has
spent defending the lawsuit.

The language of the board's amendment, which does not change
the University's ban on funding for other religious activities or
organizations, had been proposed by the state attorney
general's office in a letter distributed to the board. It reflects
a "strict interpretation" of the court decision and solves the
immediate issue of compliance, President John T. Casteen III
said.

But "cases of this sort sometimes open more questions than
they resolve," Mr. Casteen told the board during a 90-minute
public session that opened the meeting. "We're in a kind of no-
man's land here." 

Options the board should consider, he said, range from
abolishing the student activity fee and requiring groups to
raise money on their own to keeping the fee but looking for a
good-faith way to comply with the court's decision. Middle-
ground possibilities include seeking funding for some student
organizations from schools or departments, creating a
separate voluntary fund for publications and other speech-
related activities, and using part of the student activity fee to
pay for costs of litigation.

Keeping the fee is "the riskier course in a legal and financial
sense," he said, but he cautioned against "throwing the baby
out with the bathwater" by abandoning it and thus changing the
culture of student organizations. Both Mr. Casteen and Vice
President for Student Affairs William W. Harmon reminded the
board that the Supreme Court had found nothing wrong with the
student-run process itself. "The students do this right," Mr.
Casteen said.

Related questions are likely to be litigated in lower
courts_not necessarily in cases involving the University_and
"to bubble their way up to the Supreme Court," said law
professor and associate general counsel Earl C. Dudley Jr. Key
issues are whether the "Rosenberger" decision applies to other
religious activities, whether it applies to political activities
such as electioneering and lobbying, whether the courts will
monitor how much money is allocated to various groups, and
whether students can be required to pay fees supporting
particular forms of speech that they oppose, he said.

"Whether students have the right to opt out will be a hotly
debated issue," Mr. Dudley predicted in outlining the broader
legal implications for the board.

A separate concern, Mr. Casteen noted, is whether funding
student political activities would jeopardize the University's
status as a tax-exempt 501(C)3 organization. He said board
member and tax attorney Mortimer Caplin, who was unable to
attend the meeting, had advised seeking a ruling from the
Internal Revenue Service.

Speaking for U.Va. students, Student Council president Carlos
Brown urged the board to "try to fix what may be a very narrow
problem." He described the activity fee as "a very valuable part
of the community that should be continued at all costs," noting
its opportunities for leadership and budget management in
addition to support for students with new ideas that need
start-up funding.

Alvar Soosar, Student Council's vice president for
organizations and chair of the appropriations committee,
suggested one way to deal with concerns about a mandatory
fee would be to adopt a system of "two separate pots." Speech-
related activities, those that seem to meet the legal standard
of a limited public forum, could be funded from fees with an
opt-out provision; other student organizations would apply for
separately administered required fees. He estimated that about
25 percent of the funds appropriated have been for speech-
related activities. 

Administrators, students and legal advisers will work on
further recommendations for the board to consider at its
November meeting, Rector Hovey S. Dabney said. 

WRITTEN BY LOUISE M. DUDLEY