Forum Analysis in FN 3 Locke v. Davey

 Is Washington's exclusion of "devotional theology" majors from an otherwise generally available scholarship program unconstitutional viewpoint discrimination under Rosenberger?

Consider three different scholarship programs, each with its own unique exclusion:

Program One

Program One is the Promise Scholarship Program from Davey, a

generally applicable scholarship that can be used to fund any course

of study except "devotional theology."

Program Two

Program Two is also a generally applicable scholarship, but the restriction

is different--this scholarship can be used to fund any course

of study except "gender studies from a feminist perspective."

Program Three

Program Three is like the others except it can be used to fund any

course of study except "political science from a socialist perspective."

Does Rosenberger's metaphysical forum for speech apply in any of these cases?

If the dictum in Footnote Three of Davey controls, the Free

Speech Clause does not apply in any of these cases, because a scholarship

program is merely the delivery of a product or service, and is not

designed to create a forum or to encourage a diversity of views from

private speakers. Moreover, since the Free Speech Clause provides

the same protection to private religious speech and private secular

speech, there is no reason to think the forum rule should mean one

thing when applied to Program One and something else when applied

to Programs Two and Three.