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Five State Universities That Refuse To Fund Student Religious Groups

Posted on February 4th, 2011 Religious Liberty,Uncategorized | No Comments »

Calling all students: Does your state university refuse to give funding for student groups that are religious? We learned yesterday that at least five state universities do so by official policy:

- Virginia Tech

- Penn State

- William and Mary Law School

- University of Michigan – Flint

- Old Dominion

If you attend any of these schools and have been denied funding for your student religious group, please contact us 1-800-TELL-ADF, or contact us here.  If you  attend some other state university that refuses to fund student groups because of their religious viewpoint, please contact us, too.


ADF Senior Vice President; Senior Counsel - University Project

Inside Higher Education Reports on the Universities’ Request to the Supreme Court to Discriminate Against Student Religious Groups

Posted on February 4th, 2011 Uncategorized | No Comments »

Inside Higher Education reports today on the friend of the court brief filed two days ago by various associations of universities and university officials in ADF’s Badger Catholic case, requesting that state universities should be free from First Amendment restraints so they can discriminate against student-led religious groups on campus when distributing students funds. The article describes the universities’ blatant request to violate First Amendment rights of Christian students and other students of faith this way:

But the university argues (now with backing from the higher education groups) that certain kinds of religious activities — worship and proselytizing, for example — should not be supported by funds collected by a state college or university. Under the principles of the separation of church and state, the university and its backers say, public institutions shouldn’t support those activities, but should protect the right of all to have religious faith or not as they desire.

So, in other words, Christian students at state universities can be forced to pay the mandatory fee to fund proabortion groups or atheist groups or groups seeking to redefine marriage, but those same Christian students cannot get funding for their speech and their organizations because of “separation of church and state.”  What about the students’ freedom of speech?  What about a university as the marketplace of ideas?  The universities have conveniently forgotten about those important things. I hope the Supreme Court denies review of this case, thereby allowing the Seventh Circuit’s excellent decision to stand.  The Supreme Court needs to rebuke the universities for their low regard for the First Amendment.  We should know what the high court will do with the Badger Catholic case on March 7.


ADF Senior Vice President; Senior Counsel - University Project

Universities to the U.S. Supreme Court: We Want To Discriminate Against Students’ Religious Expression

Posted on February 3rd, 2011 Uncategorized | 4 Comments »

     Several prominent national associations of  universities yesterday told the U.S. Supreme Court (amazingly) that they agree with the University of Wisconsin that public universities should be free to single out student religious expression, and exclude it from university forums opened for all student speech. The associations of universities filed a friend of the court brief in the Badger Catholic case, which the University of Wisconsin has appealed to the Supreme Court.

      We have reported on the Badger Catholic case here and here.  Here is a nutshell summary of the case:  although the University of Wisconsin told the Supreme Court about ten years ago in the Southworth case that it would distribute student fee funds to all student organizations without discrimination based on what the student group believes and advocates, the University in recent years has reneged on that promise and claimed that the Establishment Clause required it to eliminate funding for student expression the University determines to be worship, prayer or “proselytizing,” (a nasty synonym for persuading others to agree with your point of view and join your cause).  The University of Wisconsin selectively denied funding to Badger Catholic, the large Roman Catholic student organization on campus because some of the students’ expressive activities contained too much of what the University defined as “prayer, proselytizing and worship.” 

    ADF filed a lawsuit against this unconstitutional action.  Last September, the U.S. Court of Appeals for the Seventh Circuit in a great opinion ruled that the University’s actions violated the First Amendment.  The University has now appealed the case to the U.S. Supreme Court.

      So the news from yesterday is that many prominent university organizations joined a friend of the court brief urging the Supreme Court to take the case and rule that the Constitution permits state universities to discriminate against private student speech that has religious content by prohibiting them from access to money available to all other student groups to express their ideas and to “proselytize” other students to join their group. Seven major organizations dealing with higher education joined the brief – the American Council on Education, the American Association of Community Colleges, the American Association of State Colleges and Universities, the American Dental Education Association, the Association of American Universities, the Association of Public and Land-grant Universities and the NASPA – Student Affairs Administrators in Higher Education. 

      It is shocking that this large array of universities is weighing in against the First Amendment rights of students. They are asking the Supreme Court to overturn 30 years of precedents requiring public universities to accomodate the free speech rights of students.  In a series of cases stretching back to 1981, the Supreme Court has ruled that (1) universities must grant equal access to student religious expression when it comes to access to meeting facilities and access to funding student organizations; (2) the Establishment Clause does not require public universities to discriminate against private religious expression.

    However, this brief essentially asks for the Supreme Court to remove the “yoke” of the First Amendment from them, and allow them total discretion to exclude student speech with religious content from the channels of communication on campus – everyone is allowed to speak, except if you have religious speech. 

     The amicus brief, as well as the University of Wisconsin’s cert petition, offer no pedagogical reason for ostracizing religious speakers.  They claim that the Establishment Clause requires it to make such exclusions.  But the Supreme Court has rejected that argument at least five times in cases dating back to 1981.  So the universities in Badger Catholic have added the argument that the First Amendment gives them leeway to make content- and viewpoint-based exclusions of religious speech.  This is nothing less than a request to gerrymander their forums for student speech to exclude religious speakers.  If there is an Establishment Clause issue in this case, it is the University of Wisconsin’s content-based exclusion of student expression simply because it is religious.

   Brazenly, the brief (page 10) talks about five schools that do exclude student fee funding for religious groups – Virginia Tech, Old Dominion, William and Mary Law School, Penn State and the University of Michigan-Flint.  I am surprised that so many state universities have refused to obey what the Supreme Court has said in such cases as Rosenberger v. University of Virginia (1995).  That was 16 years ago.  Didn’t they get the word from the Supreme Court that their actions violate the First Amendment?  Why the willful disobedience of clear First Amendment principles?  Why do they insist that this constitutional restraint on their authority needs to be removed?  These are institutions of higher learning that should understand the value of robust debate, the marketplace of ideas, and no suppression of unpopular ideas, especially under a sweeping version of “separation of church and state.”

     The Supreme Court is scheduled to decide whether to hear the case at its conference on March 4, and announce their decision whether to hear the case on March 7.


ADF Senior Vice President; Senior Counsel - University Project

“Lady Gaga, A Rabbi, A Priest and a Supreme Court Justice Walk Into A Bar … But Seriously Folks” – Humor at the Supreme Court

Posted on January 18th, 2011 Religious Liberty,Uncategorized | No Comments »

     The Washington Post  is reporting on a recent study of humor at the Supreme Court.  Yes, humor does happen at the Supreme Court!   Even the most boring discourse on some obscure subparagraph of a federal statute can trigger humorous asides by the justices, and uproarious laughter by the audience.  The written transcript of the court proceedings depict those outbreaks of humor with this designation:  [Laughter].  So here is an example: 

JUSTICE SCALIA: (leaning over to Chief Justice Roberts)   I have some breath mints.  Would you like one?


JUSTICE SCALIA: Oh, cert denied!  [Laughter].

         OK, that was really not one of the jokes from an actual Supreme Court transcript, but I could not resist.  However, here is a real exchange between Chief Justice Roberts and Justice Scalia during the Chief Justice’s first term on the court.  This was an unexpected situation that the new Chief Justice resolved with humor.  I quote directly from the study:

 In Chief Justice Roberts’ first term on Halloween, a light bulb exploded during the oral arguments for Central Virginia Community College v. Katz.  The gunshot-like sound frightened the Court, rattling the nerves of both the justices and the advocates.  To ease the tension, Chief Justice Roberts joked, “I think we’re… I think it’s safe.  It’s a trick they play on new Chief Justices all the time.”  His comment drew laughter and relief, but Justice Scalia’s welcoming reply of “Happy Halloween,”  brought about even more laughter from the audience and the Court.  Not to be outdone, Chief Justice Roberts replied, “we’re even more in the dark now than before”  (37-38:ln 18-25; ln 1-2).

       Dr. Malphurs, the author of the study, based it on an earlier one done in 2005.  The two studies show that most of the remarks that trigger [Laughter] in the transcripts are ones in which the justices make fun of themselves.  Dr. Malphurs also found that the justice spurring the most guffaws and [Laughter] references was Antonin Scalia (no surprise there) and the justice provoking the fewest laughs was Ruth Bader Ginsburg.

     Clarence Thomas, who rarely asks questions at oral arguments, gave no data for the scholars to study.  I can attest that he is very funny and warm in his informal conversations with people.   Justice Steven Breyer pulled the second highest number of [Laughter] comments in the transcripts, probably because of his long, convoluted hypotheticals.   These two studies researched data before John Roberts became Chief Justice.  My expectation is that later research will put his [Laughter] numbers in the Scalia range.  John Roberts is a very funny guy.

      My one argument at the Supreme Court resulted in the [Laughter] designation appearing in the transcript.  I argued the Southworth case against the University of Wisconsin in 1999.  This was a case about students objecting to the University’s requirement that all students pay a fee that would fund private campus groups that advocated ideas the contributors disagree with.  Justice John Paul Stevens, while I was arguing, asked the following hypothetical about funding the college newspaper:

JUSTICE STEVENS:   May I ask you about an activities fee?  Ninety percent goes for sports events, five percent for the student yearbook and five percent for the student newspaper … and the student newspaper gets captured by a Communist board of directors in editorial policy.  This happens all the time.  [Laughter].

         The transcript also notes that other justices were chuckling at Justice Stevens’ humorous hypothetical about the typical takeover of the campus newspaper by the student Marxists.  I decided not to try for the coveted [Laughter] designation for myself and instead gave a serious answer about the newspaper being a school-sponsored activity.  Maybe I should have tried a humorous answer, something like asking him how he would have felt if the university forced him to fund a student group critical of bow ties – Justice Stevens always wears bow ties.

         But at the time,  I wisely recalled that it is better for the justices to make the jokes, not the advocates.  As the Supreme Court’s guide for lawyers arguing cases before the Supreme Court states, “attempts at humor usually fall flat.”  So when you get to the Supreme Court, don’t make any jokes like, “Well, take the lower court’s reasoning — Please!”


ADF Senior Vice President; Senior Counsel - University Project

“War on Christmas” Goes Galactic, with Darth Vader and Obi Wan Joining The Pro-Christmas Side!

Posted on December 30th, 2010 Uncategorized | 1 Comment »

I offer here irrefutable proof that the “War on Christmas” has now spread beyond Earth to the galaxies! The good news is that Darth Vader, Obi Wan Kenobi, Princess Leia and others from Star Wars have united against the forces of secularism trying to censor Christmas!  Enjoy this post-Christmas cheer with this “stellar” performance.  May the Eggnog be with you!  (Hat tip to Abraham Piper’s 22 Words blog for the lead to this important video).

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ADF Senior Vice President; Senior Counsel - University Project

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