In a technical sense, a ruling by a federal judge Thursday handed defeats to both the University of Wisconsin at Madison and to a Roman Catholic group seeking to receive support through student fees at the university. But the fault that the judge found with the Catholic group is one that it can fairly easily fix. On the key issue of legal philosophy, the judge's ruling was very much what the religious students wanted: an order that the university not deny them recognition on the basis of Madison's non-discrimination policy.
The technical issue on which the UW-Madison Roman Catholic Foundation will have to change its policies concerns the university's requirement that all groups be controlled and run by students. Students are only a minority on the foundation's board, although they are a majority of those who elect board members. A lawyer for the foundation said that it could easily change its board structure to deal with that issue. Until it does so, the ruling by Judge John Shabaz will allow Madison to deny it funds.
The judge ruled from the bench so there is no written decision. But press accounts said that he said the university was "wrong" to apply its non-discrimination rules to religious groups. The judge's ruling did not focus on the use of the funds -- more than $250,000 to support a variety of activities, many of them explicitly religious.
David French, a lawyer for the Alliance Defense Fund who represented the foundation in the case, said that there were several other religious groups that have been denied student funds at Madison and that would now push for them. "It's deeply encouraging to see this momentum in the direction of permitting religious students to participate equally," he said.
University of Wisconsin officials could not be reached for comment Thursday night, but they have defended their policies as appropriate for a public institution that wants to support the rights of all of its students and that does not want to favor any religious belief or group.
The ruling capped a week that has been a winning one for religious groups challenging limits on support for religious students or institutions in higher education. On Monday, the California Supreme Court ruled that religious colleges -- even those that are "pervasively sectarian" -- can have bonds issued on their behalf. On Tuesday, the College of William & Mary agreed to restore a cross to permanent display in a chapel.
"I do think broadly what's happening is that courts are recognizing and the public is recognizing the legitimate place of religious students and religious discourse in the public market place of ideas," French said.
Thursday's ruling cited a federal appeals court's finding that Southern Illinois University's law school could not deny recognition to a student group that bars people who do not share certain beliefs from becoming members. Shabaz said that the principle in that case -- that the religious group has the right to free association -- governs the Madison case as well.
French said that more decisions are looming on church and state at public universities. He said he expected a ruling any day now in a suit against the Georgia Institute of Technology for barring student activity fees from supporting religious groups and for having a group called Safe Space that French said was "establishing a religion" by sharing information about the views of various religious groups about homosexuality.
"Our view is that when it comes to student speech, students should all enjoy equal rights," French said. "But the state university itself cannot take stands in a religious dispute."
French also said that more suits would soon be filed, similar to the challenge to Georgia Tech's Safe Space program.
Scott McKee, student coordinator of the program and former president of the Pride Alliance at Georgia Tech, said he "disagrees completely" with the idea that Safe Space is somehow a religion. He said that all the group did, as part of programs about gay people, was to share information about the stances of religious groups about gay people. "We explain the views of various churches, but we don't tell people to join one or not."
McKee questioned whether the Alliance Defense Fund is truly concerned with freedom of expression. "If they were really concerned about freedom of speech, they wouldn't be going after people who are just expressing their views," he said.
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