 | Board of Visitors minutes August 21, 1995 |  |
ATTACHMENT
COMMONWEALTH of VIRGINIA
Office of the Attorney General
Richmond 23219
James S. Gilmore, III
Attorney General
900 East Main Street
Richmond. Virginia 23219
804 - 786 - 207
804 - 371 - 8945 TDC
August 21, 1995
By Facsimile
Earl Dudley, Esquire
Special Assistant Attorney General
Madison Hall
University of Virginia
Charlottesville, Virginia
Dear Earl:
This letter is to follow-up our telephone conversation last Friday, August 18, in which you, Paul Forch and I discussed this Office's views about changes in the SAF Guidelines following the Supreme Court decision in the Rosenberger case. I understand that you will be communicating this letter to the Board of Visitors at its August 21 meeting, along with any other views that you may deem appropriate to express.
As I said on Friday, this Office believes there are two separate issues that need to be addressed by the Board, one more urgently than the other. The first -- and more pressing -- issue is how to revise the Guidelines to make them comply with the Supreme Court's holding in Rosenberger. The second -- and broader -- issue is how best to revise the Guidelines to withstand scrutiny in the event new constitutional claims are asserted in the future.
In the view of this Office, the first issue can be easily resolved by the Board on Monday, by adopting an amendment to the Guidelines as follows:
SPECIAL RULE FOR STUDENT NEWS, INFORMATION, OPINION. ENTERTAINMENT OR ACADEMIC COMMUNICATIONS MEDIA GROUPS:
Notwithstanding any other provision of these Student Activity Fee Funding Guidelines, no student news, information, opinion, entertainment or academic communications media group shall be deemed ineligible for funding on the grounds that the ideas or viewpoints expressed or advocated by such group are religious in nature or because such group primarily promotes or manifests a particular belief(s) in or about a deity or an ultimate reality.
Such an amendment would override the current funding exclusions insofar as they pertain to groups like Wide Awake and would avoid the problems inherent in a complete elimination of the "religious activity" exclusion.[1]
Beyond the immediate need to bring the Guidelines into compliance with the Rosenberger decision, there is a need to make those changes in the Guidelines that will best position the University to withstand any future constitutional challenge.[2] In the view of this Office, this is a process that can best be accomplished with further legal review and consultation between attorneys here and those assigned to represent the University in Charlottesville. It is recommended that such review and consultation be completed in time for the Board to address the broader issues in the next 3 - 6 months.
I appreciate your conveying the recommendation from this Office to the Board of Visitors. If I can be of any assistance during the course of the meeting, I can be reached at (804) 786-3898.
cc: James S. Gilmore, III, Attorney General Paul J. Forch, Senior Assistant Attorney General
One such problem would be the apparent approval of funding for worship services, a use of funds not at issue in Rosenberger and undoubtedly an establishment clause violation.
Without my implying one way or the other whether there is any perceived constitutional infirmity in the Guidelines beyond the one addressed by Rosenberger, potential challenges could include (i) a challenge to the "political activity" exclusion, (ii) a challenge to the mandatory nature of the fee, and/or (iii) challenges that seek to refine the meaning of Rosenberger in drawing a line between the free speech and establishment clauses.
| Board of Visitors minutes August 21, 1995 | |