Amicus Curiae Brief — Locke v. Davey

5

Court, U.S.

FILED

No. 02-1315 SEP 8 - 2003

=e OFFICE OF THE CLERK

In The

Supreme Court of the Gnited States

GARY LOCKE, GOVERNOR OF THE STATE OF

WASHINGTON, et al.,

Petitioners,

v.

JOSHUA DAVEY,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

BRIEF OF THE STATE OF FLORIDA, THE

HONORABLE JOHN ELLIS “JEB” BUSH,

GOVERNOR, AND THE FLORIDA

DEPARTMENT OF EDUCATION,

AS AMICI CURIAE IN SUPPORT OF RESPONDENT

CHARLES J.CRIST, JR. RAQUEL A. RODRIGUEZ

Attorney General of Florida General Counsel

CHRISTOPHER M. KISE Office of the Governor

Solicitor General of Florida CARLOS MUNIZ

Counsel of Record Special Counsel to the

Office of the Attorney General Governor

PL-01, The Capitol DANIEL WOODRING

Tallahassee, Florida 32399-1050 General Counsel

(850) 414-3681 Florida Department of

Education

TABLE OF CONTENTS

ns ols es dub e bend oes eeu ses 1

I. THE PROMISE SCHOLARSHIP

PROGRAM VIOLATES' THE

NEUTRALITY REQUIREMENT

IMPOSED BY THE FREE EXERCISE

AND ESTABLISHMENT CLAUSES .....

A. The Religion Clauses Jointly Mandate

Government Neutrality Toward Religion.

B. The Promise Scholarship Program

Violates the Neutrality Requirement

Imposed by the Religion Clauses ..........

cS. The Promise Scholarship Program Fails

Strict Scrutiny Review .........ccccecee:

D. Washington’s Defense of Its Program Is

Unpersuasive Because the Funding Cases

Are Inapposite and the Promise

Scholarship Program Is Not a Neutral

Law of General Applicability.............

il. THE PROMISE SCHOLARSHIP

PROGRAM VIOLATES' THE

VIEWPOINT NEUTRALITY

REQUIREMENT IMPOSED BY THE

FREE SPEECH CLAUSE .....0.sceeee: 14

A. The Promise Scholarship Program Should

Be Evaluated Under Limited Public

Forum PrUneapens. .. os ccctucsecusenene 14

B. The Promise Scholarship Program’s

Exclusion of Theology Majors Is Classic

Viewpoint Discrimination. .............. 16

CONCLAISION. 2... cscvcsccccsence ee up nEE 18

TABLE OF AUTHORITIES

CASES

Board of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet,

EE EE 8

Board of Educ. v. Mergens,

de cc ccwcctcecevceece 7,13

Braunfield v. Brown, 366 U.S. 599 (1961) ............. 12

Calvary Bible Presbyterian Church v. Board of Regents,

I ID. vo ccc ccc ccccsccccccccecs 6

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

EEE 5

Committee for Pub. Educ. and Religious Liberty v. Nyquist,

EEE EE 4

Edwards v. Aguillard,

EE EEE 6

Employment Div. v. Smith,

EELS SIE PPC COTT EEE TE TT 5,8,12

Epperson v. Arkansas,

ee se cc cccossceesecececs 4

Everson v. Bd. of Educ., 330 U.S. 1 (1947) .... 0.0.0.0... 5

Gillette v. United States, 401 U.S. 437 (1971)... ........ 12

Good News Club v. Milford Cent. Sch.,

ee es dassccescccccess 14,16,17

1V

Griswold v. Connecticut,

Fae ee SPEED od ccch cvesbansecdsucocncdeusnes 16

Harris v. McRae, 448 U.S. 297 (1980) ............055. 10

Holmes v. Bush, No. CV 99-3370, 2002 WL 1809079

a Cae GR. Gn ED ccccccessseccevesesevesss l

Johnson v. Presbyterian Homes of Synod, Inc.,

ee COUED bh cscesscetedesectcseensent 2

Lamb's Chapel v. Center Moriches Union Free Sch. Dist.,

FP as SENSED oc cckcccccdvcceceseacenss 14,16,17

Lynch v. Donnelly, 465 U.S. 668 (1984) ............... 5,7

Maher v. Roe, 432 U.S. 464 (1977) ... 0.2... 6c eee 10,11

McDaniel v. Paty, 435 U.S. 618 (1978)... 2.6... ee ee eee 5

National Endowment for the Arts v. Finley,

Fe as SUPE ec cccecconscvesecctesusdeeedees 10

Regan v. Taxation With Representation of Wash.,

Gis es SD in ckveacddécenaudedcacieseeens 10

Rosenberger v. Rector and Visitors of the Univ. of Va.,

See es ED civicccveuweusensdescasuneueu passim

Rust v. Sullivan, 500 U.S. 173 (1991)... 2.6... ee eee. 9,11

Sherbert v. Verner, 374 U.S. 398 (1963) ................ 4

United States v. Lee, 455 U.S. 252 (1982) .... 2... 6 eee. 12

Vv

Wallace v. Jaffree, 472 U.S. 38 (1985) ................. 6

Widmar v. Vincent, 454 U.S. 263 (1981) ......... 8,14,16,17

Zelman v. Simmons-Harris, 536 U.S. 639 (2002) ....... 1,13

UNITED STATES CONSTITUTION

U.S. Const. amend. I (Establishment Clause) ........ passim

U.S. Const. amend. I (Free Exercise Clause)........ passim

U.S. Const. amend. I (Free Speech Clause) ......... passim

INTEREST OF THE AMICI

Amici the State of Florida, Florida Governor Jeb Bush

and the Florida Department of Education share a strong

commitment to protecting religious liberty and to respecting the

religious pluralism of the people of the State of Florida. Amici

thus have an interest in ensuring that individuals are not

excluded from otherwise available government benefit programs

solely on the basis of religion.

Amici also have an interest in this case because of

pending litigation over Florida’s Opportunity Scholarship

Program ("OSP"), enacted in 1999 as part of a comprehensive

education reform package. The OSP provides scholarships to

students in failing schools and allows them to use their

scholarships at any eligible public or private school. The OSP’s

school eligibility criteria make no distinction between secular

and religious private schools.

Raising claims under the constitutions of both Florida

and the United States, various interest groups and individuals

challenged the OSP shortly after it went into effect. The

plaintiffs abandoned their federal Establishment Clause claim

after this Court issued its decision in Ze/man v. Simmons-Harris,

536 U.S. 639 (2002).

Nonetheless, a Florida trial court ultimately held that, by

allowing students to spend their scholarship funds at religious

schools, the OSP violates Article I, section 3 of the Florida

Constitution ("Article I, section 3"). See Holmes v. Bush, No.

CV 99-3370, 2002 WL 1809079 (Fla. Cir. Ct. Aug. 5, 2002). In

relevant part, Article I, section 3 provides: "No revenue of the

state or any political subdivision or agency thereof shall ever be

taken from the public treasury directly or indirectly in aid of any

church, sect, or religious denomination or in aid of any sectarian

2

institution." An appeal of this decision is currently pending

before a state district court of appeal.

Amici have argued in the appeal that the trial court failed

to apply Florida Supreme Court case law holding that Article I,

section 3 is not violated when religious institutions incidentally

benefit from a neutral program that is of general applicability and

has a secular purpose. See, e.g., Johnson v. Presbyterian Homes

of Synod, Inc., 239 So. 2d 256 (Fla. 1970). Rather than follow

controlling precedent, the trial court adopted an interpretation of

Article I, section 3 that jeopardizes numerous other Flonda social

programs, including the McKay Scholarship program. That

program allows over ten thousand students with disabilities to

attend private schools of their parents’ choice.

Amici have further argued in the appeal that the tral

court’s construction of Article I, section 3 unnecessarily creates

a conflict between the Florida Constitution and the U.S.

Constitution. Specifically, the trial court read the Florida

Constitution as requiring the state to violate the U.S.

Constitution by discriminating against students who would

choose to spend their Opportunity Scholarships in pursuit of a

religious education.

Amici thus have a significant interest in this Court’s

clarification of whether a state scholarship program that funds

both public and private education may, consistent with the U.S.

Constitution, exclude those students who choose a private

religious education.

_ ———— _— ~~ —

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SUMMARY OF ARGUMENT

The Free Exercise and Establishment Clauses together

mandate government neutrality toward religion. Washington’s

scholarship program violates this neutrality mandate in two

ways. First, the program uses a religious classification as a basis

for the denial of an otherwise available government benefit by

excluding students who choose to major in theology. Second, the

program evinces hostility toward religion and stigmatizes

students who choose to engage in religious inquiry by funding

literally every course of study other than theology. The

program's express reliance on a religious classification to deny

a government benefit distinguishes this case from those in which

this Court has upheld government programs that, for reasons

having nothing to do with religion, declined to fund

constitutionally protected activities. The program's use of a

religious classification also distinguishes this case from those

involving the Court’s review of neutral laws of general

applicability that only incidentally affected religious adherents.

The Promise Scholarship program’s exclusion of students

who choose to major in theology also violates the viewpoint

neutrality requirement imposed by the Free Speech Clause.

Applying the limited public forum doctrine, this Court has

repeatedly held that government may not deny religious speakers

access to otherwise available facilities. Significantly, in

Rosenberger v. Rector and Visitors of the University of Virginia,

515 U.S. 819 (1995), the Court invoked limited public forum

principles to invalidate a state university policy that excluded

religious publications from an otherwise available funding

program. The Promise Scholarship program is constitutionally

indistinguishable from the program that the Court in

Rosenberger found unconstitutional. The First Amendment

equally protects freedom of speech and freedom to learn, and the

government has no legitimate interest in discriminating on the

basis of religious viewpoint in either context. For the same

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reasons that government may not deny religious speakers access

to otherwise available facilities and funds, it also may not

exclude an otherwise eligible student from a state-funded

scholarship program solely on the basis of the student’s choice

to pursue a religious education.

ARGUMENT

I. THE PROMISE SCHOLARSHIP

PROGRAM VIOLATES THE

NEUTRALITY REQUIREMENT

IMPOSED BY THE FREE

EXERCISE AND ESTABLISHMENT

CLAUSES.

A. The Religion Clauses Jointly Mandate

| Government Neutrality Toward

Religion.

“The First Amendment mandates governmental neutrality

between religion and religion, and between religion and

nonreligion.” Epperson v. Arkansas, 393 U.S. 97, 103 (1968).

This neutrality requirement is derived from both the

Establishment Clause and the Free Exercise Clause. See

Committee for Pub. Educ. and Religious Liberty v. Nyquist, 413

U.S. 756, 792-93 (1973) (“A proper respect for both the Free

Exercise and the Establishment Clauses compels the State to

pursue a course of ‘neutrality’ toward religion.”). The neutrality

principle so informs this Court’s jurisprudence that the Court has

invoked it to explain the constitutional requirement that

government, in rare cases, may exempt a religious adherent from

a law of general applicability. See Sherbert v. Verner, 374 U.S.

398, 409 (1963) (constitutionally-required accommodation

“reflects nothing more than the governmental obligation of

neutrality in the face of religious differences”).

fee + ome

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The neutrality requirement leads to two subsidiary

principles, both of which are offended by Washington’s Promise

Scholarship program. The first is that, “({b]eyond [the] limited

situations in which government may take cognizance of religion

for purposes of accommodating our traditions of religious liberty,

government may not use religion as a basis of classification for

the imposition of duties, penalties, privileges or benefits.”

McDaniel v. Paty, 435 U.S. 618, 639 (1978) (Brennan, J.,

concurring). Consistent with this principle, a basic tenet of this

Court’s Free Exercise Clause jurisprudence is that “government

may not. . . impose special disabilities on the basis of religious

views or religious status.” See also Employment Div. v. Smith,

494 U.S. 872, 877 (1990). When the government does take

action based on a religious classification, its action is subject to

strict scrutiny. See id. at 886 n.3. And “{a] law that targets

religious conduct for distinctive treatment . . . will survive strict

scrutiny only in rare cases.” Church of the Lukumi Babalu Aye,

Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993).

The second principle, which is derived primarily from

this Court’s Establishment Clause jurisprudence, is that

government may not take actions that, in purpose or effect, either

endorse or disapprove of religion. See, e.g., Lynch v. Donnelly,

465 U.S. 668, 690 (1984) (O’Connor, J., concurring).

“Endorsement sends a message to nonadherents that they are

outsiders, not full members of the political community, and an

accompanying message to adherents that they are insiders,

favored members of the political community. Disapproval sends

the opposite message.” /d. at 688 (O’Connor, J., concurring).

To be sure, most of this Court’s cases interpreting the

Establishment Clause have presented the question whether

government action has impermissibly favored religion. But this

Court’s jurisprudence leaves no doubt that the Establishment

Clause equally forbids governmental disapproval of or hostility

toward religion. See, e.g., Everson v. Bd. of Educ., 330 U.S. 1,

18 (1947) (“State power is no more to be used so as to handicap

6

religions, than it is to favor them.”); Edwards v. Aguillard, 482

U.S. 578, 616 (1987) (Scalia, J., dissenting) (“[WJe have

consistently described the Establishment Clause as forbidding

not only state action motivated by the desire to advance religion,

but also that intended to ‘disapprove,’ ‘inhibit,’ or evince

‘hostility’ toward religion”); Wallace v. Jaffree, 472 U.S. 38, 85

(1985) (Burger, C.J., dissenting) (“For decades our opinions have

stated that hostility toward any religion or toward all religions is

as much forbidden by the Constitution as is an official

establishment of religion.”’).

B. The Promise Scholarship Program

Violates The Neutrality Requirement

Imposed By The Religion Clauses.

Washington’s Promise Scholarship program violates both

of the subsidiary principles of neutrality. First, it denies students

access to an otherwise available government benefit solely on the

basis of a religious classification. Washington’s prezram

expressly defines its beneficiaries in reference to religion.

Eligible students may choose literally any course of study other

than theology, which for purposes of Washington law means

“that category of instruction that resembles worship and

manifests a devotion to religion and religious principles in

thought, feeling, belief, and conduct.” Calvary Bible

Presbyterian Church v. Bd. of Regents, 436 P.2d 189, 193

(Wash. 1967). Among otherwise eligible students, only those

who choose to major in theology are denied a scholarship. Put

differently, Washington withholds its subsidy unless and until a

student is willing to pursue a secular major. As long as a student

remains within a class defined in reference to religion—those

students who choose to major in theology—he or she will be

denied the scholarship. The neutrality requirement mandated by

the Religion Clauses forbids a state from so using a religious

classification to deny an otherwise eligible student a government

benefit.

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Second, by singling out students who major in theology

for disfavored treatment, Washington’s program conveys a

message of governmental hostility toward religion. To an

objective observer, a policy that subsidizes every course of study

other than theology necessarily stigmatizes religious inquiry and

those who wish to engage in it. This Court in other contexts has

not hesitated to draw the conclusion that religion-based

exclusions from otherwise neutral benefit programs signal

hostility toward religion. For example, in Rosenberger, this

Court observed that a state university’s discriminatory refusal to

fund a religious publication “would risk fostering a pervasive

bias or hostility to religion, which could undermine the very

neutrality the Establishment Clause requires.” 515 U.S. at 845-

46. Similarly, a plurality of the Court in Board of Education v.

Mergens, 496 U.S. 226, 248 (1990), noted that, “if a State

refused to let religious groups use facilities open to others, then

it would demonstrate not neutrality but hostility toward religion.”

Using a religious classification as a basis for exclusion from an

otherwise available benefit program communicates a message of

hostility to religion even if the state’s motivation for enacting the

discriminatory policy—to accomplish a strict separation of

church and state—is benign. See, e.g., Lynch, 465 U.S. at 690

(O’Connor, J., concurring) (to determine whether government

message endorses or disapproves of religion, Court must

consider objective effect of message in the community). A state

cannot, consistent with the neutrality requirement, adopt a policy

that has the objective effect of stigmatizing students who choose

a religious education.

8

Cc. The Promise Scholarship Program

Fails Strict Scrutiny Review.

Because it employs a religious classification to deny an

otherwise available government benefit, the Promise Scholarship

program is subject to strict scrutiny. See Smith, 494 U.S. at 886

n.3. Tellingly, Washington does not even argue that its policy

could pass that test. The reason is that such an argument is

precluded by this Court’s decision in Widmar v. Vincent, 454

U.S. 263 (1981). In that case, the Court found that a state

university violated the Free Speech Clause by excluding a

religious group from an otherwise open forum. In defense of its

discriminatory policy, the state had asserted an interest “in

achieving greater separation of church and State than is already

ensured under the Establishment Clause of the Federal

Constitution.” /d. at277. The Court nonetheless concluded that

the university’s policy failed strict scrutiny review because the

state’s interest was “limited by the Free Exercise Clause and . .

. by the Free Speech Clause as well.” /d. at 277-78. Similarly,

Washington’s interest in pursuing its policy of separation of

church and state is insufficient to justify the Promise

Scholarship’s discrimination against students who choose to

major in theology.

The religious liberty guaranteed by the First Amendment

is entitled to full protection against encroachment by state law.

State policies involving religion need not be uniform, but they

must at a minimum respect the neutrality and non-discrimination

principles mandated by the Religion Clauses of the U.S.

Constitution. State laws that discriminate on the basis of religion

should fare no better before this Court than laws that

discriminate on other grounds that are constitutionally

impermissible. Cf. Board of Educ. of Kiryas Joel Vill. Sch. Dist.

v. Grumet, 512 U.S. 687, 715 (1994) (O’Connor, J., concurring)

(“This emphasis on equal treatment is, I think, an eminently

sound approach. In my view, the Religion Clauses—the Free

MICK PEs vere

9

Exercise Clause, the Establishment Clause, the Religious Test

Clause, Art VI, cl. 3, and the Equal Protection Clause as applied

to religion-—all speak with one voice on this point: Absent the

most unusual circumstances, one’s religion ought not to affect

one’s legal rights or duties or benefits.”’).

D. Washington’s Defense of Its Program

Is Unpersuasive Because the Funding

Cases Are Inapposite and the Promise

Scholarship Program Is Not a Neutral

Law of General Applicability.

Washington offers two principal arguments in defense of

its program. First, the state contends that its policy does not

violate the Constitution because this Court has previously held

that “the legislature’s decision not to fund the exercise of a

constitutional nght does not infringe that right.” (Pet’r Br. at 23)

(quoting Rust v. Sullivan, 500 U.S. 173, 193 (1991)). Second,

Washington maintains that its program is a neutral law of general

applicability that simply reflects the distinction between secular

and religious instruction, a distinction that has been approved in

this Court’s jurisprudence. Neither of these defenses is

persuasive.

The first argument fails because it does not address the

asserted constitutional defect in Washington’s policy. The

problem with the policy is not that it violates a supposed right to

a state-subsidized religious education. Neither the Free Exercise

Clause, nor any other provision of the Constitution, confers such

aright. The policy is unconstitutional because it uses a religious

classification as a basis for exclusion from an otherwise

generally available government benefit program. The program

thus violates the neutrality requirement embodied in the Religion

Clauses.

10

The conclusion that Washington’s program

unconstitutionally discriminates against students who choose

religious instruction is tied closely to the specific structure of the

program. It would make a constitutionally significant difference

if, for example, Washington had decided only to fund

scholarships at public colleges and universities. One of the

results of such a decision would be that the state would not

subsidize theological instruction (per Washington’s definition).

But Washington would have achieved that objective through a

religion-neutral—and constitutionally permissible—policy that

distinguishes between public and private education. A student

challenging such a program based on the Religion Clauses would

not have a viable claim, because the program would not have

used a religious classification as a basis for discriminatory

treatment.

The funding cases that Washington cites in support of its

argument are irrelevant precisely because none involved the

government’s use of religion as a basis for granting or denying

an otherwise generally-available benefit. In Maher v. Roe, 432

U.S. 464 (1977), Harris v. McRae, 448 U.S. 297 (1980), and

Rust v. Sullivan, 500 U.S. 173 (1991), the Court upheld funding

programs that favored childbirth over abortion. In Regan v.

Taxation With Representation of Washington, 461 U.S. 540

(1983), the Court upheld a Congressional tax subsidy that

favored non-lobbying activities over lobbying, and that favored

veterans’ groups over non-profit organizations dedicated to other

causes. In National Endowment for the Arts v. Finley, 524 U.S.

569 (1998), the Court evaluated Congress’ use of “general

standards of decency and respect for the diverse beliefs and

values of the American public” as criteria for evaluating grant

applications. None of these cases sheds any light on the question

whether government may use a religious classification as the

basis for exclusion from a benefit program.

11

The abortion cases in particular highlight the weakness

of Washington’s argument. In Maher, for example, the Court

noted that the abortion right “implies no limitation on the

authority of a State to make a value judgment favoring childbirth

over abortion, and to implement that judgment by the allocation

of public funds.” 432 U.S. at 474. Similarly, the Court in Rust

observed that “Government can, without violating the

Constitution, selectively fund a program to encourage certain

activities it believes to be in the public interest, without at the

same time funding an alternative program which seeks to deal

with the problem in another way.” 500 U.S. at 193. The Court

made this statement even while acknowledging that, by using its

funding power to further its chosen goals, the government

“necessarily discourages alternative goals.” /d. at 194.

This type of analysis is inapplicable in a case that

implicates the neutrality requirement mandated by the Religion

Clauses. Consider the above-quoted passage from Maher, if

applied to the classifications at issue in this case: “The First

Amendment implies no limitation on the authority of a State to

make a value judgment favoring [students who would use a

subsidy to pursue a secular major] over [students who would use

a subsidy to pursue a religious major], and to implement that

judgment by the allocation of public funds.” Such a statement

could not be reconciled with the Religion Clauses’ neutrality

mandate. Similarly implausible is the notion that this Court

would countenance the government’s decision to “discourage”

private individuals’ pursuit of religious instruction. In any event,

the Court in Maher itself alluded to the significant difference

between the abortion right and religious liberty when it

distinguished abortion from “the significantly different context

of a constitutionally imposed ‘governmental obligation of

neutrality’ originating in the Establishment and Freedom of

Religion Clauses of the First Amendment.” /d. at 474 n.8.

12

Washington's second principal defense is that its

scholarship regulations are a “neutral law of general

applicability.” For that reason, Washington contends, the

Promise Scholarship program does not violate students’ free

exercise rights, and the program should not be subject to strict

scrutiny.

Washington’s characterization of its scholarship program

defies both common sense and this Court’s jurisprudence. The

analytical concept of a “neutral law of general applicability” is

most closely associated with this Court’s decision in Smith, 494

U.S. 872. The Court in that case used the term to describe an

Oregon law that generally prohibited drug use. Other cases that

the Smith majority characterized as involving neutral laws of

general applicability include United States v. Lee, 455 U.S. 252

(1982) (law requiring payment of Social Security taxes); Gillette

v. United States, 401 U.S. 437 (1971) (law establishing the

military selective service system); and Braunfield v. Brown, 366

U.S. 599 (1961) (Sunday closing laws). Each of the laws at issue

in these cases incidentally affected religious practices, but none

even mentioned religion, and none was passed with an intent to

affect religion in any way. By contrast, the Promise Scholarship

program facially discriminates on the basis of religion and

reflects a conscious effort to enforce a government policy

prohibiting the use of public funds for religious instruction. The

“neutral law of general applicability” line of cases is thus

inapposite.

Similarly unpersuasive is Washington’s contention that

its policy is neutral because it simply reflects the constitutionally

permissible distinction bctween secular and religious instruction.

While this distinction may have relevance when evaluating

education or educational materials offered by the government

itself, it has no application here. In a program like the Promise

Scholarship, there is no possibility that students’ educational

choices will be attributed to the government. As this Court

13

explained in Zelman: “[W]e have repeatedly recognized that no

reasonable observer would think a neutral program of private

choice, where state aid reaches religious schools solely as a result

_ of the numerous independent decisions of private individuals,

carries with it the imprimatur of government endorsement.” 536

U.S. at 654-55.

Washington therefore cannot reasonably fear that funding

any major—aincluding theology—chosen by an eligible student

would result in governmental endorsement of religion. To the

contrary, a program that otherwise allows students to choose any

course of study must include students majoring in theology if the

program is to comply with the Constitution’s neutrality mandate:

“[T]he guarantee of neutrality is respected, not offended, when

the government, following neutral criteria and evenhanded

policies, extends benefits to recipients whose ideologies and

viewpoints, including religious ones, are broad and diverse.”

Rosenberger, 515 U.S. at 839. At bottom, Washington's

argument ignores the “crucial difference between government

speech endorsing religion, which the Establishment Clause

forbids, and private speech endorsing religion, which the Free

Speech and Free Exercise Clauses protect.” Mergens, 496 U.S.

at 250.

14

il THE PROMISE SCHOLARSHIP

PROGRAM VIOLATES THE

VIEWPOINT NEUTRALITY

REQUIREMENT IMPOSED BY THE

FREE SPEECH CLAUSE.

A. The Promise Scholarship Program

Should Be Evaluated Under Limited

Public Forum Principles.

Washington’s Promise Scholarship program is

unconstitutional for the further reason that it discriminates

against religious expression, in violation of the Free Speech

Clause. Specifically, the nature of the program brings it within

the limited public forum doctrine, and its exclusion of students

who major in theology is a form of viewpoint discrimination.

The limited public forum doctrine holds that the

government is subject to First Amendment limitations when it

voluntarily provides its resources to facilitate private expression.

In most of this Court’s limited public forum — oe

religious expression, the resource provided by the governmen

oe it meeting place. See Good News Club v. Milford

Cent. Sch., 533 U.S. 98 (2001); Lamb's Chapel v. Center

Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); Widmar,

454 U.S. 263. But in Rosenberger, 515 U.S. 819, the Court

applied the limited public forum doctrine to a funding program

that subsidized the printing costs of student publications.

Regardless of whether the forum consists of a meeting

place or a funding program, the Free Speech Clause imposes two

basic limitations on government’s ability to restrict access to that

forum. A “restriction must not discriminate against speech on

the basis of viewpoint.” Good News, 533 U.S. at 106. And “the

restriction must be reasonable in light of the purpose served by

the forum.” /d. at 107 (internal quotation marks and citation

15

omitted). Washington’s Promise Scholarship program fails both

of these tests.

The conclusion that the Promise Scholarship program

violates the Free Speech Clause is compelled by this Court’s

analysis in Rosenberger. The funding program at issue in that

case had been created to subsidize the activities of groups

“related to the educational purpose of the University of

Virginia.” Rosenberger, 515 U.S. at 824 (internal quotation

marks omitted). Among other things, the program subsidized the

printing costs of a variety of student publications. However, the

university had a policy that no money from the fund could be

used for “religious activity,” which the policy defined as “any

activity that primarily promotes or manifests a particular belief f]

in or about a deity or an ultimate reality.” /d. at 825 (internal

quotation marks omitted). Based on this policy, the university

refused to pay the printing costs of a student publication that

addressed issues from a Christian editorial perspective.

The Christian student group sued, and this Court

- ultimately invalidated the university’s funding program. The

Court first concluded that the program was a limited public

forum, albeit “more in a metaphysical than in a spatial or

geographic sense.” /d. at 830. The Court then held that the

university had engaged in impermissible viewpoint

discrimination by denying funding on the basis of the

publication’s religious editorial viewpoint. See id. at 836-37.

Limited public forum principles should apply to

Washington’s Promise Scholarship program for the same reason

that the Court applied them to the funding program at issue in

Rosenberger. Each program was established by the government

to facilitate private expression. In Rosenberger, the subsidized

expression consisted of student publications. Washington’s

scholarship program subsidizes the pursuit of learning. For

purposes of the First Amendment, this is a distinction without a

16

difference, because the Free Speech Clause protects both types

of expression from governmental interference. See, €.g.,

Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (“The right

of freedom of speech and press includes not only the right to

utter or to print, but the right to distribute, the right to receive,

the right to read and freedom of inquiry, freedom of thought, and

freedom to teach.”) (internal citations omitted). Just as the

government has no legitimate interest in regulating student

speech on the basis of viewpoint, so too it has no such interest in

adopting viewpoint-based regulations that affect students’ choice

of what to study.

B. The Promise Scholarship Program’s

Exclusion Of Theology Majors Is

Classic Viewpoint Discrimination.

Because the Promise Scholarship program is governed by

limited public forum principles, its discrimination against

students who choose to major in theology violates the Free

Speech Clause. First, under this Court’s decisions in Good

News, Rosenberger, Lamb's Chapel, and Widmar, Washington’ s

policy of excluding theology majors from its ‘scholarship

program is a classic form of viewpoint discrimination. In fact,

Washington candidly acknowledges that its funding restriction

does not apply to religion as a subject matter, but only to religion

taught from a devotional or faith-based perspective. (Pet’r Br. at

5-6). Cf. Rosenberger, >15 U.S. at 831 (“By the very terms of

the [funding] prohibition, the University does not exclude

religion as a subject matter but selects for disfavored treatment

those student journalistic efforts with religious editorial

viewpoints.”’).

Second, and perhaps more fundamentally, it is

unreasonable to exclude students who major in theology from a

program broadly dedicated to making a college education more

affordable for low and middle-income students. See Good News,

oe

POLICIES FEO ENGL 4

rn - —

17

533 U.S. at 122 (Scalia, J., concurring) (“Lacking any legitimate

reason for excluding the Club’s speech from its forum—‘because

it’s religious’ will not do—respondent would seem to fail First

Amendment scrutiny regardless of how its action is

characterized. Even subject-matter limits must at least be

reasonable in light of the purpose served by the forum.”’)

(internal citations and quotation marks omitted). The

government has no legitimate interest in encouraging students to

choose a secular major over a major in theology.

Washington was not required to establish the Promise

Scholarship program. But “(h]aving done so, [it] has assumed an

obligation to justify its discriminations and exclusions under

applicable constitutional norms.” Widmar, 454 U.S. at 267. The

same First Amendment principles that preclude government from

denying religious speakers access to generally available facilities

or funds (see Good News, Lamb's Chapel, Widmar,

Rosenberger) prohibit Washington from excluding otherwise

eligible theology majors from its scholarship program.

18

CONCLUSION

The Court should affirm the judgment of the Court of

Appeals.

Respectfully submitted,

CHARLES J. CRIST, JR.

Attorney General of Florida

CHRISTOPHER M. KISE

Solicitor General of Florida

Counsel of Record

Office of the Attorney General

PL-01, The Capitol

Tallahassee, Florida 32399-1050

(850) 414-3681

RAQUEL A. RODRIGUEZ

General Counsel

State of Florida, Office of the

Governor

CARLOS G. MUNIZ

Special Counsel to the Governor

State of Florida, Office of the

Governor

DANIEL WCODRING

General Counsel

Florida Department of Education