You would think that after the Supreme Court rejected the University of Wisconsin’s appeal earlier this week universities across the country would take notice.  But you would be wrong. 

Even though the decision by the U.S. Court of Appeals for the Seventh Circuit relied on thirty years of Supreme Court precedent, public universities outside Wisconsin, Illinois and Indiana (where the Seventh Circuit has jurisdiction) plan to ignore the decision.  Inside Higher Ed reports that the general counsel for the American Council on Education, which is an association of universities, had this to say after the ruling: 

Ada Meloy, general counsel for the American Council on Education, said she was “disappointed” that the Supreme Court declined to consider an appeal. She said she continues to believe that the appeals court decision was incorrect, even if it is “now the law of the land” in the Seventh Circuit. Meloy said that public colleges and universities in that region would probably come up with a range of ways to comply with the ruling.

She added that the ruling “is not binding in areas other than the Seventh Circuit.”

In other words, don’t expect your university or alma mater to change its ways anytime soon.  Nope, your university plans to wait for students to sue and then waste taxypayer dollars fighting over well-established constitutional doctrines.

Badger Catholic Students

In September we told you the U.S. Court of Appeals for the Seventh Circuit ruled that the University of Wisconsin violated the First Amendment by refusing to fund the religious activities of a Catholic student group named Badger Catholic at its Madison campus (the case name is Badger Catholic v. Walsh).  A few months later, the University doubled down and asked the U.S. Supreme Court to review the Seventh Circuit’s decision.  Several higher education associations supported the University’s efforts and told the Supreme Court that the universities they represent want the ability to discriminate against religious speech on campus.  Today, the Supreme Court refused to take the University’s appeal, which upholds the tremendous victory Badger Catholic received from the Seventh Circuit.

Badger Catholic (formerly known on campus as the Roman Catholic Foundation) has been engaged in litigation against the University of Wisconsin for five years now.  In 2006, the University kicked the student group off campus for violating the University’s non-discrimination policy and refused to allocate student fees to fund the group’s activities.  After a federal court intervened to stop the University, the University settled the case and agreed to allow it viewpoint neutral access to the student activity fees.  Before the ink dried on the settlement agreement in 2007, the University broke its promise and refused to fund any Badger Catholic activity that included prayer, worship, or proselytizing.  Since many of the group’s activities included some form of those types of speech, the Badger Catholic was effectively barred from the student fee system.  So Badger Catholic sued again.  A federal district court and the Seventh Circuit both ruled in its favor. 

The Supreme Court usually takes cases only when there is a disagreement among the federal courts of appeals or if a case presents an important constitutional question.  The fact that the Court refused to take the University’s appeal indicates–rightly so–that the Seventh Circuit’s decision was correct:  the First Amendment guarantees that religious expression will receive equal access to government forums created for speech. 

Badger Catholic Students

Interestingly, the higher education associations that supported the University of Wisconsin’s efforts said that the following universities have policies like the University of Wisconsin’s policy:  Virginia Tech, Old Dominion, William and Mary Law School, Penn State and the University of Michigan-Flint.  And that’s just the beginning.  Just last week, we wrote about a similar policy that Indiana University-Bloomington changed recently. I doubt these other universities will change their policies without a fight. 

If your university prohibits religious groups from accessing student activity fees, let us know.  The victory for Badger Catholic may help change that problem.

In response to an ADF letter, Indiana University-Bloomington announced last week that it removed a ban on religious activities from its student activity fee system.  In December 2010, ADF sent a letter to IU on behalf of student leaders of Impact Movement, a Christian student organization at IU.  Impact Movement applied for student fee funding last fall to send some of its members to its national conference over New Year’s weekend.  IU’s Student Activity Funding Board denied the request, citing the potential for the conference to include proselytizing and other religious activities.  At the time, IU policy excluded funding for student group activities that involved “religious proselytizing” or “sectarian events (ceremonies, services, and religious rites).” 

Last week, the president of IU’s Student Activity Funding Board contacted Impact Movement’s leadership and informed them of the policy change, which completely removes the ban on religious activities.  The Funding Board asked Impact Movement to reapply for the funding so that the Board could reprocess the request.  Kudos to IU for removing this viewpoint discriminatory policy. 

IU’s decision comes on the heels of the Badger Catholic v. Walsh case, in which the U.S. Court of Appeals for the Seventh Circuit, which has jurisdiction over Indiana, held that the University of Wisconsin violated the First Amendment by prohibiting student groups from receiving student activity fees for any activity that may include prayer, worship, or proselytizing.  (Full disclosure: ADF is counsel on the case.)  That decision rests on 30 years of Supreme Court precedent.  However, the University of Wisconsin filed a cert petition in December, asking the Supreme Court to take the Badger Catholic case and re-examine whether religious speech should get equal access to public forums.  The Justices will consider the petition at their Friday conference this week, and we should know by Monday at 10:00 a.m. (Eastern) whether the Supreme Court will take the case. 

In the mean time, our Christian brothers and sisters in the Impact Movement can continue making an even bigger impact at IU now that they are on equal footing with all other student groups.

Perhaps emboldened by its #5 ranked football team, the University of Wisconsin is asking the United States Supreme Court to review a case involving the allocation of student activity fees to religious organizations.  We brought you the news earlier this fall, when the U.S. Court of Appeals for the Seventh Circuit upheld a lower court’s decision that the University violated the First Amendment rights of the Badger Catholic student organization (who ADF represents) when it refused to allow the group to use any student activity fee money for activities that involve student-led prayer, worship, proselytizing, or religious instruction.

Last week, the University filed a Petition for Writ of Certiorari at the Supreme Court in Badger Catholic v. Walsh, asking the high court to take the case and reverse the well-reasoned decision by Chief Judge Easterbrook of the Seventh Circuit.  I’ve written extensively on several occasions about the Constitutional law that governs allocation of student activity fees.  The basic point is that if a public university mandates the payment of a student activity fee that it allocates to student groups, then the university must allocate that money on a viewpoint neutral basis.  Fees must be allocated on a viewpoint neutral basis because when the university collects the fee to redistribute to student groups, it creates a public forum for student speech.

The University contends in Badger Catholic, that allowing the students to use student activity fees for student-led prayer, worship, proselytizing, and religious instruction violates the Establishment Clause of the First Amendment.  However, the Establishment Clause is not an issue for consideration, because the government is not engaged in any speech.  Students provide the money, and only student use the money for student-initiated speech.

The University is no stranger to student fee litigation, as one of the landmark cases in that area of law involved a challenge to the University’s mandatory student fee:  Board of Regents of the University of Wisconsin System v. Southworth.  There, several students at the University argued they should be allowed to opt-out of paying the mandatory student fee because student groups they disagreed with received student fee funding.  The University resisted this argument and contended that students should not be allowed to opt-out of paying the mandatory fee so long as it is distributed on a viewpoint neutral basis.  The Supreme Court agreed with the University.  But now the University not only wants to have its cake (a mandatory fee), but to eat it too (excluding some student speech from funding).

It looks like I was somewhat right a few months ago when I asked if history was repeating itself at the University of Wisconsin.  We hope that doesn’t mean déjà vu with student fees again before the Supreme Court.

My last post discussed the criteria student activity fee systems must use when allocating money to student groups.  Today, I examine the constitutional implications of melding student fee allocation with the democratic process:  the student fee referendum.  First, some clarifications.

When I refer to a student activity fee referendum, I mean a democratic vote held on a college campus whereby students vote “yes” or “no” on funding a particular student group.  I do not mean student referenda that decide whether general fees paid by students should increase or decrease next academic year.  The latter is a system, used widely in California, whereby students vote whether their fees (usually nonallocable fees that fund the student union, bookstore and other campus services) should increase by X% in the following year.  An example of this type of referendum can be found here.  In this post, I focus on referenda that determine whether a particular student group gets to charge each student $10 per semester to fund its activities.

The Supreme Court has ruled that as a condition for requiring students to pay a student fee that funds disagreeable speech, universities must allocate the fees on a viewpoint neutral basis.  When students vote to fund particular student groups via a referendum, they violate viewpoint neutrality.  In Southworth, the University of Wisconsin distributed the fees, in part, through a referendum process.  While the legality of the referendum was not directly before the Court, the opinion states that “[t]o the extent the referendum substitutes majority determinations for viewpoint neutrality it would undermine the constitutional protection the program requires.  The whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views. . . . Access to a public forum . . . does not depend on majoritarian consent.  That principle is controlling here. ”  Thus, the Court determined that allocating student fees by referendum violates viewpoint neutrality.

Recently, in Amidon v. Student Association of the State University of New York at Albany, the United States Court of Appeals for the Second Circuit held that student activity fee referenda violate viewpoint neutrality.  SUNY-Albany required every student to pay a student activity fee, which it distributed to student groups through a budget submission process or a student referendum.  To access the referendum process, a student group had to gain the approval of two-thirds of the student senate or submit a petition signed by at least 15% of the student body.  If the petition was successful, the student government used a nonexclusive set of criteria to determine whether to use a student referendum to help calculate how much funding a group should receive.  Yet, the student referenda were advisory and were not binding on the student government, which made the final funding decisions.  A few students filed a lawsuit challenging the facial validity of the advisory student referendum under the First Amendment.

The Second Circuit held that the advisory student referendum violated viewpoint neutrality because it “creates a substantial risk that funding will be discriminatorily skewed in favor of [student groups] with majoritarian views,” which violates Rosenberger and Southworth (for a full discussion of these cases, see my first postin this series).  Even though the referenda were only advisory in nature, the court found that while the student government was “free to disregard a viewpoint-discriminatory, advisory referendum, this practice nevertheless injects a substantial risk of undetectable viewpoint discrimination into the allocation process.”  The court noted that an advisory referendum could be constitutional depending on what protections there is for viewpoint neutrality, but found that SUNY’s system still violated viewpoint neutrality because it provide a nonexclusive list of criteria that the student government used to determine funding and a couple of the criteria were too vague.  I am not aware of adequate protections that would cure the constitutional defects in a referendum system, even an advisory one.  Accordingly, the Second Circuit struck down SUNY’s advisory student fee referendum.

On May 11, 2010, the ADF Center for Academic Freedom sent a letter on behalf of Collegians for a Constructive Tomorrow to the University of Connecticut concerning its student activity fee system.  UConn uses an advisory student activity fee referendum to determine which groups may have a special student fee for their activities.  Yet, UConn’s referendum suffers from the same defects outlined in Amidon.  Even though the referendum is advisory, it “injects a substantial risk of undetectable viewpoint discrimination into the allocation process.”  “Viewpoint discrimination arises because the vote reflects an aggregation of the student body’s agreement with or valuation of the message [a student group] wishes to convey.”  UConn’s referendum favors popular groups over smaller groups and injects viewpoint into the decision-making process.

UConn’s fee policy also requires student organizations that want to establish a new fee to submit a petition containing the signatures of at least 200 students.  Like the referendum system in Amidon, this necessarily favors popular student organizations over less popular ones and gives preference to majoritarian views on campus.  The petition requirement benefits groups, like the Public Interest Research Group, who advocate popular views on campus, and penalizes smaller, newer groups, like CFACT, who may not be able to gather the requisite amount of signatures for the petition.

UConn’s advisory student referendum and petition process for obtaining a new student fee is in conflict with Amidonand First Amendment jurisprudence because it places student groups with majoritarian views in a better position to receive funding than minority groups.  Student fees and the democratic process simply do not mix well.  It would behoove UConn to eliminate this system and make student fee funding fair for all student groups.  Stay tuned to see if they correct the problems.