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The South Atlantic Quarterly 100.4 (2001) 869-895



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Rosenberger v. University of Virginia:
From Discourse and Dollars to Domination

Ellen Messer-Davidow


These two levels [Civil Society and the State] correspond on the one hand to . . . "hegemony" which the dominant group exercises throughout society and on the other hand to . . . command exercised through the State and "juridical" government. The functions in question are precisely organisational and connective.

—Antonio Gramsci, Selections from the Prison Notebooks

In June 1995 the Supreme Court issued a 5–4 ruling in Rosenberger v. Rectors and Visitors of thebreak University of Virginia that reversed the earlier district and appellate court rulings against the plaintiff, a conservative Christian student group that claimed the university had violated its speech and press rights. Since the case raised several vexing issues in First Amendment jurisprudence and current debates about campus culture, it captured the attention of law scholars and journalists as it traveled through the federal court system. Most of the commentators situated Rosenberger within the precincts of legal discourse, discussing the details of the case in relation to the definitions, principles, and modes of review established by First Amendment jurisprudence. [End Page 869] In what follows, I too recount the circumstances from which Rosenberger emerged and the points of law that influenced the crafting of the university's policy, the plaintiff's lawsuit, and the Court's opinions. But then, instead of limiting Rosenberger's import to jurisprudence as law-review articles do, I present it as a construal of the social world that goes on to reconstruct the social world.

Construing

In 1990 Ronald W. Rosenberger and other undergraduates at the University of Virginia formed a student group called Wide Awake Productions (WAP) and applied for university recognition as a contracted independent organization (CIO). 1 Once CIO status was granted, WAP began publishing a conservative Christian magazine titled Wide Awake: A Christian Perspective at the University of Virginia and distributing free copies to students. A few months later WAP asked the Student Activities Fund (SAF) to pay its printer $5,862 for printing the first issue, but the request was denied by SAF's Appropriations Subcommittee, its full Student Council, and the dean of students on the ground that WAP was engaged in religious activity. Having exhausted the internal appeals process, WAP contacted the Center for Individual Rights, a conservative legal foundation in Washington, D.C., to craft a lawsuit against the university.

The University Guidelines set the terms for student-group status and funding. This policy document specified that any student group applying for CIO status had to satisfy certain requirements—among them having students as its officers and as the majority of its members, pledging not to discriminate in admitting members, filing a constitution with the university, and including a disclaimer in its written materials and third-party dealings that the university was not responsible for its activities. Once offered CIO status, the student group had to sign an agreement stating that any benefits it received should not be construed as indicating that the university controlled CIOs, took responsibility for their contracts, or approved of their goals and activities. 2 While all CIOs could use campus facilities, such as meeting rooms and computer terminals, not all CIOs qualified for creditor payments because the university imposed further requirements on SAF and CIOs. In disbursing funds, SAF was expected to advance the institutional mission of fostering "a broad range of extracurricular activities that ‘are related [End Page 870] to the educational purpose of the University.'" The guidelines specified eleven types of CIO activity—including "student news, information, opinion, entertainment, or academic communications media groups"—that advanced the educational mission and thus were eligible for SAF funding. In addition, the guidelines listed several types of CIO expenditure that were ineligible for SAF funding: social entertainment; speakers' fees; philanthropic contributions and activities; political activity defined as lobbying and electioneering; religious activity defined as that which "primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality"; and activities jeopardizing...

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