I can hardly believe it, but it has been nearly 20 years since the Supreme Court handed down the landmark decision in Rosenberger v. Rector and Visitors of the University of Virginia and said that public universities who allocate mandatory student fees to student groups must do so on a viewpoint neutral basis.  That’s why I was surprised when yet another student group contacted us for help after a university refused to fund its pro-life event on campus.

Earlier this month, we filed a lawsuit on behalf of Students for Life at Eastern Michigan University.  SFL is hosting the Genocide Awareness Project on campus in April and applied for student fee funding to help pay the costs.  GAP is a traveling photo-mural exhibit which compares the contemporary genocide of abortion to historically recognized forms of genocide.  EMU’s student government refused to provide any funding because it said the event was too “biased,” “controversial,” and “one-sided.”  When SFL pressed the matter, the student government pointed to an EMU policy that prohibits funding for any student event that contains “political or ideological” speech.

It’s hard to fathom any college student speech that doesn’t contain some political or ideological message.  Anyone who has walked around a college campus has seen the variety of advertisements for political and ideological events.  Indeed, EMU does provide funding for political and ideological speech of some student groups, but chose to exclude SFL from funding simply because the event, which contains a pro-life message, was too biased, controversial, and one-sided.

I guess I shouldn’t be surprised that public universities persist in maintaining these obviously unconstitutional policies.  Last year, Alliance Defending Freedom represented a student group at Texas A&M University after the university denied it funding to bring a socially conservative speaker to campus.  And just a few years ago, we represented the Badger Catholic student group at the University of Wisconsin-Madison in a student fee lawsuit that lasted several years and reached the highest courts in the nation.

We hope EMU will do the right thing, like Texas A&M did last year, and resolve the lawsuit by removing the restriction on political or ideological speech.  If not, we’re prepared to go to the trenches and secure a lasting legal victory for the free speech of all EMU students.

Last fall, I wrote about Non-Discrimination Gone Wild, a decision by Evergreen State College to allow a man to use the girls locker room.  Well it seems my law school alma mater, Washington University in St. Louis, wanted to one-up Evergreen, and hosted a “porn star” panel earlier this month.  The panel was part of the university’s “sex week,” a series of events designed to address “sexual health, sexuality, and societal views of sex.”  The event was hosted in the university chapel and paid for with mandatory student fees.

Wash U’s event follows similar week-long Dionysian festivals at the University of Chicago, the University of Illinois, and Yale.  Often these events are paid for with mandatory student fees.  In fact, CampusReform reports that at Wash U over $10,000 in student fees paid for “sex week.”  You would think that university administrators would question student decisions to spend their parents’ money or student loans on these events, but CampusReform quotes one university official as saying, “The administration is very supportive of any choice the students make when it comes to funding.”  Yet, I’m sure if the event had been “religion week,” the university would have refused to provide any student fee funding.

Most people think student fees pay things like services in the student union, the gym, and occasional funding of student groups conducting a service project.  But universities have turned these mandatory fees in campus slush funds for the left.  What results is student groups like “Sex Out Loud” at the University of Wisconsin-Madison that receive over $100,000 a year in student fee funding to hand out condoms and pamphlets from Planned Parenthood, but groups like Badger Catholic are denied funding to provide free student counseling from a religious perspective.

What can you do?  It’s unlikely mandatory student fees will go away anytime soon.  But the best answer to bad speech is good speech.  If you’re part of a student group on campus, apply to get student fees for your own events that promote decency and respect life.  (And if you need help, contact us.)  If you’re an alumnus of a college that hands out student fees to these types of events, tell your alumni office you’re not giving this year in protest.  Don’t let the left dominate the conversation.

We get a number of calls from students asking if we can do anything to help change a bad grade.  Generally speaking, getting a lawyer will not improve your chances of changing that “D” into a “C,” unless you have been forced to advocate ideas outside the classroom that you disagree with, or when your professor writes, “Ask God what your grade is.”  That’s why I read this article with surprise.  A student at Lehigh University is suing over a “C+” she received in a counseling program.  But testimony revealed that her grade suffered because she failed to participate in classroom discussion.  

I am not aware of a case in which a court changed a student’s grade (if you can find one, please send it along).  In fact, I’ve read many cases that say universities alone, not even professors, have the final say on grades.  One court said:

[I]t is the [u]niversity’s name, not [the professor]‘s, that appears on the diploma; the [u]niversity, not [the professor], certifies to employers and graduate schools a student’s successful completion of a course of study. Universities are entitled to assure themselves that their evaluation systems have been followed; otherwise their credentials are meaningless. 

Wozniak v. Conry, 236 F.3d 888, 891 (7th Cir. 2001).  If a university or professor retaliates against your constitutionally protected speech by assigning you a bad grade or expelling you from a class, then you might have a claim (and you should contact us).  But on the whole, if you get a bad grade, and it’s not in retaliation for your speech, race, sex, or other protected status, then you cannot ask a judge to change it.

I’ve never been in the military.  But I’ve known a few good men and women who have served our country.  And I know that when they are putting their life on the line, the comforting prayer or counsel from a military chaplain has made a huge difference.  That’s why I was disturbed to see last month that Americans United for Separation of Church and State sent a letter to the United States Military Academy at West Point.  AU wrongly claims the Establishment Clause of the First Amendment is offended whenever military chaplains solemnize an event with an invocation or benediction, which only occurs at a handful of events each year.  Alliance Defending Freedom responded by sending a letter to West Point on behalf of the Chaplain Alliance for Religious Liberty, confirming that West Point’s practice of solemnizing events with invocations or benedictions is completely constitutional.  Here’s why.   

The United States Army has offered soldiers the opportunity to hear solemnizing prayers since the Revolutionary Days.  General George Washington asked his chaplains to pray for the troops during those critical days at Valley Forge.  West Point has offered invocations and benedictions at important events in cadet careers since its founding in 1802.  In fact, before the ratification of the First Amendment, Congress authorized the appointment and use of commissioned chaplains, in part to offer solemnizing prayers at crucial moments in a soldier’s life and our Nation’s history.   If this tradition was established before ratification of the Establishment Clause, then the Founding Fathers clearly didn’t think it was a problem.  

The purpose of West Point’s prayers is to allow military chaplains to partner with the academy’s leadership in the development of future leaders of character and offer words of encouragement in support of the particular event’s intent.  The invocations and benedictions are opportunities to dignify milestone events in a cadet’s career, not moments to advance one religion over another.  Moreover, cadets are not compelled to participate in the prayers, or even listen to them.  But the prayers offer them time to reflect on the significance of their education and training.

One of West Point’s tasks is to help cadets learn how to celebrate the religious diversity in the Army.  This is done not by stripping “the public square of every last shred of public piety,” as a federal court of appeals said.  Learning to celebrate the religious diversity in the Army is accomplished by providing a positive view of America’s rich religious diversity.   West Point’s acknowledgement of religious and non-religious practices of various kinds aligns with the non-establishment philosophy embodied in the First Amendment.

We hope West Point doesn’t capitulate to AU’s demands, but continues this vital tradition for future soldiers.

Last October, Angela McCaskill, chief diversity officer at Gallaudet University, the nation’s premier university for the deaf, was placed on administrative leave for signing a Maryland petition to protect marriage.  We wrote to Gallaudet and expressed our serious concern about the many laws the university broke by punishing an employee for clearly protected speech.  After three months on leave, and with her employment uncertain, Gallaudet announced this week that McCaskill is back on the job.

The university correctly reinstated McCaskill, but we are troubled that the university let this drag on so long.  Several years ago, San Francisco State University conducted a seven-month investigation of several college students for sponsoring a speech event on campus.  The university eventually dropped the investigation, but it had already chilled the students’ free speech.  A federal court later enjoined the policy that allowed the university to investigate dubious charges.  No doubt, Gallaudet has accomplished the same result by suspending McCaskill for three months after she engaged in a constitutionally protected activity.  If Gallaudet had been a public university, McCaskill would have a strong First Amendment retaliation claim.  But even though it’s not, Gallaudet was close to breaking several federal and state laws.  We hope McCaskill won’t be dissuaded from expressing her personal beliefs in the future, and we caution that public universities should not follow Gallaudet’s speech-chilling example.