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Court Weighs University Decision To Deny Funds To Religious Magazine

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Washington

The U.S. Supreme Court wrestled last week with the question of how far government must go in aiding religious groups on school campuses.

A broad ruling in the case involving the University of Virginia's denial of activity funds to a student religious magazine could hold implications for any form of government aid to private religious schools.

But based on the oral arguments March 1 in Rosenberger v. Rector and Visitors of the University of Virginia (Case No. 94-329), the High Court seems more likely to issue a narrow decision focused on whether the university wrongly discriminated when it did not help finance the magazine.

Michael W. McConnell, the lawyer for the students who published the Christian-themed magazine, told the Justices that the university was wrong to bar funding to any publication because of its religious perspective.

"If my clients were the S.D.S. [Students for a Democratic Society], or a group of vegetarians, or the Federalist Society, they wouldn't be here today," said Mr. McConnell.

But the university's lawyer argued that the case was less about the free-speech rights of students than about the funding decisions of a public university.

"There is in this country a long tradition of financial disengagement between church and state," said John C. Jeffries Jr. of the University of Virginia's law school.

Christian Perspective

The case centers on Wide Awake magazine. The publicaton, founded four years ago by students, has featured articles on local and national issues from a Christian perspective.

In 1991, its organizers sought about $6,000 from the student council to help defray publishing costs.

The university provides funding from mandatory student-activities fees to more than 100 student organizations, including 15 publications. But university rules bar funding for religious and political activities.

The students sued the university, but lost in both the U.S. District Court and the U.S. Court of Appeals for the Fourth Circuit. The appeals court ruled that the First Amendment's establishment clause bars the university from paying for religious activities such as Wide Awake.

The case has drawn the attention of K-12 educators, not so much because of the specific issue of funding for religious publications, but because of the potential impact a broad ruling might have on public education or aid to private religious schools.

The American Center for Law and Justice, an organization affiliated with the religious broadcaster Pat Robertson, filed a friend-of-the-court brief urging the Justices to use the case to overturn a key establishment-clause precedent, set in Lemon v. Kurtzman, that most public education groups favor leaving intact. The Lemon case provides a legal test for evaluating whether government programs unconstitutionally aid religion.

The National School Boards Association, meanwhile, filed a brief in support of the university. The brief argues that public schools should be able to limit their financial support of student activities to those that promote their educational mission.

"The aid at issue here is by government designation a restricted benefit and therefore no free-speech rights should attach," the association argues in its brief.

'Religious Character'

During oral arguments, several Justices questioned whether the publication of Wide Awake was essentially a religious activity, as the university contends, or a form of religious speech meriting the protection of the free-speech clause.

Associate Justice Antonin Scalia suggested that a hypothetical student version of Commentary magazine, which analyzes current events from a Jewish perspective, would be eligible for funding.

"It's all about social issues, but it's meant to bring a religious perpective," he said.

Several Justices cited the 1981 case of Widmar v. Vincent, in which the Court held that religious groups must be given the same access to university classrooms for meetings as other student groups. That ruling has essentially been extended to cover school districts as well.

But Mr. Jeffries argued that the "unflagging religious character of [Wide Awake] has never been denied." He added that Widmar involved access to plentiful classroom space that does not ordinarily create a fiscal issue. If the students prevail in this case, the university would be involved in making decisions about whether to provide direct funding to religious groups, he said.

The case should be decided by late June.

Separately last week, Associate Justice John Paul Stevens denied an emergency request from the Bloomingdale, Mich., school district to return a portrait of Jesus to a high school wall.

Lower federal courts had ordered the portrait removed as a violation of the establishment clause. The district's full appeal of those decisions is pending before the High Court.

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