a. Stevens argues that the three categories thus far
traditional public forum, state-created public forum, and a
non-public forum, along with content-based and content-neutral—are
far too complicated. The university is not a public forum, because
it is not open to the public like a street or park is. Furthermore,
there is no “content-neutrality” in a university. Universities
decide (and should be allowed to decide) what books to order, which
profs to hire, etc., all of which are non-neutral decisions.
Similarly, a university should decide what its facilities will be
used for. Their decision should not be encumbered by ambiguous
judicial terms like, “compelling state interest.” But this decision
must have a valid reason and cannot be solely based on viewpoint
[this seems to be a lower standard than “compelling interest”]. In
this case, there is no valid reason. “If school facilities may be
used to discuss anticlerical doctrine, it seems to me that comparable
use by a group desiring to express a belief in God must also be
permitted. The fact that their expression of faith includes
ceremonial conduct is not, in my opinion, a sufficient reason for
suppressing their discussion entirely.”
1. Dave says the purpose of including Stevens’ concurrence is just
to illustrate an alternative approach than the majority. If the
issue re government as manager of public property arises, refer in
passing to Stevens’ on the exam, and briefly apply the facts to his
approach. But emphasize the traditional, majority approach, best
illustrated in Perry.
2. If the school had not used the “firewall” justification, but
another one (such as not enough time and space to allow religious
groups to use rooms), would this meet Stevens’ test? This seems to
be analogous to a library saying it has to make content-based
judgments because of its limited financial resources.
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