Law, College of


Date of this Version



University of Pennsylvania Journal of Constitutional Law (2006) 8: 699-723.


Copyright 2006, University of Pennsylvania. Used by permission.


This Article analyzed Chief Justice Rehnquist's Footnote Three dictum, and concluded that the Promise Scholarship Program in Davey was clearly designed to encourage Promise Scholars to choose from an infinitely broad array of subjects, viewpoints, and courses of study that make up the marketplace of ideas of higher education in the State of Washington. Since the exclusion of devotional theology majors from the Program was clearly based on the viewpoint from which theology is taught and studied, and since it is clear that government may not discriminate on the basis of viewpoint--even in the context of a funding program--if the program is designed to encourage a diversity of views from private speakers or to facilitate private speech, it follows that the Court's unreasoned dictum in Davey is difficult to support and should not be allowed to harden into law.

Included in

Legal Studies Commons