This year’s NCAA Men’s Tournament has been very exciting—so far, seventeen games have been decided by five points or less.  But we know you all have really been saving your excitement for our picks for the rest of the tournament, based on the schools’ commitment to respecting the First Amendment rights of their students.  (The guidelines we’re using are the same that Casey used last year.)  Without further ado, here are the picks for the Southeast Region:

Butler v. Wisconsin

Butler University, a small private school in Indiana, won everyone’s hearts last year as the Cinderella team who made it all the way to the championship game and fought valiantly against the Goliath of the tournament—Duke.  The game came down to a desperation heave by Butler’s Gordon Hayward in the last seconds of the game.  (He missed.)  This year, Butler has already exceeded expectations by taking out Old Dominion in the second round in a two point game, and shocking No. 1 seed Pitt with a one-point nail-biter victory in the third round.

Now, everyone (including me) loves a scrappy underdog.  But does Butler deserve to win?  In 2009, Butler actually sued one of its students for writing an anonymous blog criticizing the school.  Now, it’s bad enough when universities punish students for their protected expression, but actually suing one of your students for money damages?  That is truly absurd. 

Luckily for Butler, however, they are playing the University of Wisconsin, one of the country’s most frequent violators of the First Amendment. 

The ADF Center for Academic Freedom has been litigating against the Badgers since 2006 because of its discriminatory student fee system.  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 viewpoint discrimination, the University more recently claimed that the Establishment Clause required it to eliminate funding for religious student expression.  The University of Wisconsin-Madison 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.”   In September 2010, the Seventh Circuit reaffirmed that the Establishment Clause does not require such discrimination against religious student speech.  The court ruled that the University must treat religious student groups equally to nonreligious student groups, in terms of granting them funding for their expression and allowing them space to meet on campus.  The University filed a petition for writ of certiorari, but that was recently denied by the Supreme Court.

Even though Badger Catholic has now ended with a victory, we continue to fight for non-discriminatory distribution of Wisconsin student fees in the CFACT case, the third case we’ve litigated against the University’s Madison campus since 2006.  Our winner should come as no surprise, then.

Pick—Butler

BYU v. Florida

I’ll try to remain professional and not vindictively pick Florida to lose just because they managed to defeat my Bruins.  But there are plenty of other reasons why Florida is in deep trouble in this match up.

First, there’s the Gators’ red light rating from FIRE.  Among Florida’s numerous red light policies, we have this gem, their civility code:

A university is a place where self-expression, voicing disagreement, and challenging outmoded customs and beliefs are prized and honored. However, all such expressions and challenges need to be civil, manifesting respect and concern for others.

We’ve got no problem with encouraging students to be polite.  Heck, we like to think we’re pretty polite ourselves.  But requiring civility among adults in the storied “marketplace of ideas” is downright unconstitutional.  (The court in our case a few years back at San Francisco State held as much.) 

A friend and former client who shall remain nameless recently referred to Florida as “God’s school.”  But I don’t think the student members of Gator Christian Life and Beta Upsilon Chi (a Christian fraternity) would agree, since they were derecognized by the University simply because they had the audacity to require that their members and leaders actually be Christians, of all things.

Florida is in deep trouble, y’all.

BYU, on the other hand, as a private, religious school, is not rated by FIRE, through they have had a few minor controversies on campus, and appear to limit speech in outdoor areas of the campus.  But this match-up is much closer than it should have been given BYU’s incredibly oppressive policy of prohibiting flip-flops, at least on their Idaho campus.  (Shout out to my colleague Jenna Lorence for pointing this out!)  As someone who probably didn’t even own a pair of socks during my undergrad years, I think that’s just plain un-American!

Oppressed toes aside, BYU really comes nowhere near to the level of constitutional infractions Florida has accumulated. 

Pick—BYU.

Based on the above, it’s clear that the Southeast region’s representative in the Final Four should be BYU.  Butler’s luck in being paired against the University of Wisconsin runs out when compared to a less egregious offender of the First Amendment, and their second chance at a Cinderella season will be over soon.

Go Cougars!

Check out the Sweet Sixteen of Liberty: Southwest Region

Check out the Sweet Sixteen of Liberty: East Region