The same principle followed by equal access rules and regulations applies to student activity fees. In Rosenberger v. Rector & Visitors of the University of Virginia (1995), the University of Virginia authorized payments from a student activities fund for the printing costs of publications by certain student groups.34 This payment program was utilized by a wide variety of student groups to print a great diversity of publications espousing political, social, and even religious views. Although the University supported a wide range of groups, including Jewish and Shinto publications, it refused to support the publication of a Christian magazine.
In response, the U.S. Supreme Court found that the university was guilty of unconstitutional viewpoint discrimination: “Having offered to pay the third-party contractors on behalf of private speakers who convey their own messages, the University may not silence the expression of selected viewpoints.”35 In fact, viewpoint neutrality is an absolute precondition to any public funding for student organizations.
In the case of Board of Regents of the University of Wisconsin System v. Southworth (2000), the U.S. Supreme Court provided a perfect description of the neutrality requirement.36 In the case, a University of Wisconsin student challenged the University’s mandatory student activity fee, alleging that to force him to fund student groups whose political and ideological speech he found offensive violated his First Amendment rights. Although the Supreme Court agreed that a mandatory fee involved the student’s First Amendment rights, it held that those rights were not being violated, as long as the University allocated the funds on a neutral basis. In Justice Anthony Kennedy’s words: “Viewpoint neutrality is the justification for requiring the student to pay the fee in the first instance and for ensuring the integrity of the program’s operation once the funds have been collected.”37
In all, public universities that offer benefits to nonreligious “expressive organizations” on campus—an “expressive organization” is one that exists, at least in part, for the purpose of expressing a particular viewpoint—may not deny the same benefit to other students or groups simply because their viewpoint happens to be religious.