Casey Mattox’s excellent series on Widmar v. Vincent (stay tuned, there’s more to come) inspired me to write my own mini-series on student activity fees, a topic that will consume student groups from coast to coast this summer as they prepare for the fall semester.  I will examine the constitutional principles that guide these systems, objections to paying the fees, and methods for allocating fees that violate the First Amendment.  My hope is that student groups who are entering or will enter the fee allocation season this fall will be better equipped to ensure they have equal access to student fees.  Today, we start with an overview of the constitutional principles.

Most universities charge students a student activity fee.  Typically, the fee pays for non-instructional student services (e.g., student union facilities, recreational sports, bus services, etc.).  But a portion of the fee often funds student organization activities as well.  At most universities, these fees are mandatory, though at least one exception exists. A student committee or student-administrator hybrid committee usually distributes the fees.  In so doing, the committee must follow a few clearly established constitutional standards:  the committee cannot distribute the fees based on viewpoint and must use objective, specific criteria when deciding whether a student group is eligible for funding and how much each group receives.

These standards arose out of a series of Supreme Court cases.  Fifteen years ago, in Rosenberger v. Rector and Visitors of the University of Virginia, the Supreme Court held that when a public university creates a mandatory student activity fee and then allocates the fees to student organizations for their activities, it creates a public forum for students.  In such a forum, the university must distribute the fees without regard to viewpoint.  In Rosenberger, the university provided student fee funding to student organizations, but prohibited student groups from receiving student activity fees for religious activities.  Based on the viewpoint neutrality principle, the Supreme Court ruled that ban on religious activities constituted viewpoint discrimination and was unconstitutional.

While Rosenberger was a victory for equal access to student fees, not all students wanted to participate in the student fee system.  Here is why:  Student A is a deeply committed Christian and believes that life begins at conception.  She attends Public University and must pay a student fee of $200 per semester.  She determines that her university’s student fee committee allocates a portion of student fees to student organizations, and “Students for Choice” is one of those groups.  Student A does not want her money funding abortion advocacy.  She objects and refuses to pay the student fee.  Some universities will allow Student A to opt-out of paying student fees.  But Student A’s university will not.  Must she pay the fee?  Yes.

A few years after Rosenberger, students at the University of Wisconsin challenged the ability of their university to mandate that they pay a student activity fee in the first place.  The students filed suit (represented by ADF’s Jordan Lorence) and claimed that the university violated their right to free speech by compelling them to pay student fees that were allocated to student organizations that advocated messages they disagreed with.   In a landmark decision, Board of Regents of the University of Wisconsin System v. Southworth, the Supreme Court held that the mandatory student fee did not violate the First Amendment rights of the objecting students because the university allocated the fee on a viewpoint neutral basis.  What does this mean for Student A?  While she cannot refuse to pay the fee that funds, in part, “Students for Choice,” she can start Students for Life and request funding from the same pot of money to counter the abortion advocacy.  Thus, while students may not want to pay the fee in the first place, they may access it to support their student group’s expression.  And, if Student A’s school does not give funds to both Students for Choice and Students for Life, it violates viewpoint neutrality and the fee cannot be mandatory.  If it is mandatory, the university has violated the constitution.

Does your public university prohibit student groups from receiving funding for “religious activities,” “proselytizing,” or other religious expression?  If so, it is violating viewpoint neutrality and you can do something about it.

Next post:  Allocating fees based on clear standards.

Part I: The Christian Student Group That Was “Too Influential on Campus”

If you are — or have been in the past 30 years — part of a religious student group on a public university campus (or for that matter on a high school campus), you owe that privilege to the decision of a group of college students in Kansas City in 1977. At a time when courts were wrestling – in some cases unfavorably – with the question of whether the Establishment Clause required public universities to exclude religious student groups from campus, Cornerstone at the University of Missouri-Kansas City decided to defend their (and your) rights in court. The result was the Supreme Court’s 1981 decision in Widmar v. Vincent, holding that the First Amendment prevented public universities from discriminating against religious student groups.

One of the plaintiffs in the case, Jonathan Williams, is now a pastor at Grace Community Church near San Antonio and recently spoke to me about Cornerstone, the case and the environment on campus, the decision, and his words for today’s students who face discrimination by their universities. What follows is the first of a three post series taken from my interview with Pastor Williams:

In the early 1970s a group of churches were planted with the specific intent of reaching out to college students. It was from this movement that Cornerstone at the University of Missouri-Kansas City was born. According to the Supreme Court, Cornerstone at UMKC was “an organization of evangelical Christian students from various denominational backgrounds.” Its purpose was to “promote a knowledge of Jesus Christ among students.” Chess v. Widmar, 635 F.2d 1310, 1312 (8th Cir. 1980). Although affiliated with the local church plant, Cornerstone met on campus in university buildings just as the other one hundred student groups at UMKC did and told the school that its meetings addressed “various topics relating to Christianity and the Bible.” “We engaged in personal evangelism and open air preaching, but we also sought to give a reasoned presentation of the Christian faith in the academic environment,” said Jonathan Williams, then member of Cornerstone. The “backbone” of Cornerstone as the Supreme Court noted was about 20 evangelical Christian students and leaders who ran the group, but its meetings (which included worship) were open to everyone and drew as many as 125. Widmar v. Vincent, 454 U.S. 263, 265 n2 (1981). As noted in the District Court, “[a]ny students, be they Jewish, Christian, Moslem or any other persuasion are invited, and, in fact, actively recruited by the students in Cornerstone.” Chess v. Widmar, 480 F. Supp. 907, 910 (D. Mo. 1979).

In other words, Cornerstone’s policies were “identical” to those of the Christian Legal Society and most other Christian campus ministries today, said Williams. “Cornerstone hosted debates between non-Christians and Christian apologists and brought in speakers to talk about faith from the perspective of various academic disciplines. So [like CLS] we wanted non-Christians and people who disagreed with us to be involved,” said Williams. But its leaders and those who spoke for the group were Christians. UMKC had no nondiscrimination rule applicable to membership and officer positions in student groups, let alone did it try to apply such a rule to require Cornerstone to allow non-Christians to lead its worship. What if UMKC had tried? “That would have been a non-starter,” said Williams, “we would have had to challenge that too.” “Cornerstone was a Christian ministry. It wouldn’t have been the same group if it had non-Christians running it.”

Cornerstone had been meeting on campus for several years when, out of the blue in 1977 they received notice that they couldn’t hold their regular worship activities and meetings on campus. “We did still have some meetings,” said Williams, citing some videos they showed and held discussions on afterward but they were no longer permitted to meet explicitly “for purposes of religious worship or religious teaching.” Widmar, 454 U.S. at 266. Although this policy had been on the books for years, the school only enforced it for the first time four years after Cornerstone began. “We were told we were getting too influential on campus,” said Williams. While many students were apathetic about the situation, Williams described the tone from student government itself as “fairly hostile” toward Cornerstone in the meetings he attended where Cornerstone tried to plead its case.

Jonathan Williams and other students sought to persuade UMKC officials to change their stance, but they refused. UMKC officials told them that if they wanted to use buildings for worship there was an exception in the policy that would allow that in a campus chapel. Unfortunately, UMKC had no campus chapel. The nearest campus chapel was 125 miles away at the University of Missouri – Columbia campus. Williams met with a Mr. Hatch, the Chief of Buildings and Grounds at UMKC to ask about the possibility that a chapel might be built on campus, allowing Cornerstone to meet there. Hatch “stated that if we wanted a chapel, we would have to ‘get the ball rolling’ ourselves and that it would have to be funded by private donations.” Chess, 480 F.Supp. at 913 (D. Mo. 1979) (affidavit of Jonathan Williams). If they could just raise several hundred thousand dollars to build a chapel and give it to the school — then they could meet on campus. “It was comical,” said Williams, who saw the “offer” as an effort by the administration to “get rid of us or make us irrelevant.”

Rebuffed by school administrators, Williams recalls that the students received much counsel and prayer about their decision on how to proceed. And at first he was somewhat hesitant about litigation. Asked if the group got counsel from other Christians encouraging them that the Christian response was to bear this cross as a consequence of following Christ, Williams laughed, “that was actually my response at first.” “But the others agreed we should go forward and their wiser heads prevailed.” His concern was that litigating the case would diminish the group’s witness on campus. “That was my first immature response, but that was wrong. If you have a righteous Godly attitude it doesn’t have to diminish your witness. In fact, it can increase your witness.” Cornerstone and the thousands of Christian student groups on campuses across the country that have relied upon its victory in Widmar v Vincent is evidence of that truth.

To be continued…

The next post will examine more on the environment at the time, the arguments against them, how they found their attorney, and a story from Dean Widmar himself about the interesting reaction of other universities to UMKC’s decision.

Need a quick video demonstration of what is at stake in CLS v Martinez? Would you like a touch of humor thrown in? Missing your Recommended Daily Allowance of Justice Scalia? Our friends at Citizen Link (Focus on the Family Action) have you covered.

Please leave a comment below to share your thoughts or follow us on Facebook to join the conversation. http://www.facebook.com/SpeakUpU

In 1972 comedian George Carlin unveiled a profane comedy routine in which he uttered seven profanities prohibited on the public airwaves by the Federal Communications Commission. His “Seven Things You Can’t Say on Television” is often revered by self-styled civil libertarians on the left – even though the FCC regulations he was criticizing were upheld in FCC v. Pacifica Foundation in 1978. Yet Carlin’s performance is iconic for some because of his stance against “the man.”

Today’s “man” isn’t the FCC, it’s the tax-funded university’s “Diversity officer” or even its Dean of student affairs. But sadly the state of free speech on campus is no laughing matter, and the ACLU and its allies seem to have little to say about the egregious situation for free speech on campus. Public universities across the country routinely employ “harassment,” “bias incident,” and even computer use policies that prohibit not just a few choice words but entire subjects of legitimate conversation simply because someone – including eavesdroppers – might take offense or even find the conversation “annoying.” These policies, often collectively referred to as “speech codes,” stifle free speech either by their enforcement or by simply threatening to subject students to punishment if a listener reports them (as they are usually encouraged to do). The United States Court of Appeals for the Third Circuit has twice dealt with speech codes on high school and university campuses in recent years. Most recently ADF scored a significant victory for student speech rights in DeJohn v. Temple University, 537 F.3d 301 (3rd Cir. 2008) where the Third Circuit held that the school’s sexual harassment policy was overbroad and could be used to punish core protected speech.
With two years distance from the DeJohn decision, however, public universities across New Jersey, Delaware, and Pennsylvania continue to hold on to egregiously unconstitutional speech codes that use much of the same language rejected in Saxe and DeJohn and inhibit expression and skew debate on campus by placing students at risk of substantial punishment if someone claims offense at what they say.

At Rutgers University, students are encouraged to report “bias incidents” by fellow students, including any “verbal, written … or psychological” act that “maligns” a person on the basis of a number of bases including religion, sexual orientation, and others. Such acts warrant “intervention” where they lose a student to “lose confidence in their ability to participate in the educational mission of the university.” So a conversation or an email about religious differences that the listener or recipient thinks “maligns” their religion warrants punishment. And if all that weren’t enough, the department responsible for deciding whether a student’s email or conversation is a punishable “bias incident” is the “Center for Social Justice Education and LGBT Communities.” The exact role of any kangaroos in the proceedings is unclear.

Similarly, at Cheyney University in Pennsylvania students can be punished for “spoken words” or any “production, display or circulation of written words, pictures or other materials” that offend a person on the basis of a number of bases from gender or “religious belief.” So a student circulating an image of Mohammed that is viewed by a Muslim student or stating their belief that faith in Christ is the only means of salvation is potentially subject to punishment if someone is offended by their speech. Delaware State University prohibits “offensive utterances” and Indiana University of Pennsylvania and Westmoreland County Community College in Pennsylvania prohibit certain speech that the school believes would create an “offensive … environment.”

And it’s not just these 5 schools that are receiving letters today that are the problem. Research by ADF allied attorneys shows a host of schools in the Third Circuit that retain egregiously unconstitutional speech codes despite clear precedent in the Third Circuit. For instance, Lincoln University in Pennsylvania prohibits students from engaging in “disrespectful, absurd and rude” behavior. I believe this is the first policy I’ve ever seen that violates itself. Isn’t engaging in “absurd” behavior a substantial part of university life? On the college campus it’s not just seven profane words that are prohibited, but a whole host of ideas and topics of conversation that are verboten.

Is this any way to run a marketplace of ideas? There is no more excuse for universities in these states to claim that they were unaware of the law. It is clearly established, they are in clear violation, and it is time for them to respect the rights of their students and the authority of binding federal courts. That’s why we are today launching an initiative to urge schools in the Third Circuit to eliminate their unconstitutional speech codes. The five schools mentioned above will receive today a letter pointing out the serious flaws in the university’s speech codes and offering to assist the universities in bringing their policies into compliance with the First Amendment. It is our sincere hope that each school will choose to revise its policies voluntarily and ensure that its students’ rights are protected. But if they do not, we stand ready to take the next step and protect these students’ rights in federal court. And if you’re a student who would also like to address the unconstitutional speech codes on your campus, please let us know. This is the beginning of this effort, not the end. Stay tuned.