Church and State (Universities)

Major higher education groups urge Supreme Court to consider appeal of ruling they fear could force public colleges to financially support worship and other practices of religion.
February 4, 2011

WASHINGTON -- The American Council on Education, joined by six other national higher education groups, is urging the U.S. Supreme Court to hear an appeal of a lower court's finding that the University of Wisconsin at Madison improperly denied funding for some activities of a Roman Catholic student group.

The lower court's ruling sets a dangerous precedent, said a brief filed this week by the college groups. The lower court took away the right of Wisconsin, and potentially other public colleges and universities, to support some student activities but to deny funds to organizations for worship services, proselytizing, or other activities that explicitly involve the practice of religion, according to the brief. The groups that sued Wisconsin and that are satisfied with the lower court's ruling argue that universities should not treat religious activities in any way differently from other student activities -- and that the limits used by Wisconsin infringed on the First Amendment.

The issue of how much deference public colleges and universities must grant religious student groups has become increasingly contentious in federal courts. Just last year, the Supreme Court ruled, 5 to 4, that public colleges and universities may require religious organizations seeking recognition or funds as campus groups to comply with anti-bias rules. In that case, the Christian Legal Society lost a fight to be recognized as a student group by the University of California Hastings College of Law; the law school denied recognition because the society bars gay people from becoming members, in violation of the equal opportunity rules at Hastings.

The Wisconsin case was brought by Badger Catholic, which has been involved in years of debate with the university over which of its activities are eligible to receive student fees. The ruling was in part based on a series of Supreme Court decisions that have upheld the use of public funds for the activities of religious groups.

A key part of the 2-to-1 ruling of by the U.S. Court of Appeals for the Seventh Circuit involved the university's decision to fund broad categories of activities in the first place. The majority decision indicated that the university could have blocked student fees from going to the activities in question if it had blocked entire categories of support -- whether conducted by secular or religious groups. Once a university allows any category of student activity to receive support, however, the court ruled that it can't bar support for that activity just because it may involve worship.

"A university can define the kind of extracurricular activity that it chooses to promote, reimbursing, say, a student-run series of silent movies and a debate team, while leaving counseling to the student-health service that the university operates itself," said the decision. "But the University of Wisconsin has chosen to pay for student-led counseling, and its decision to exclude counseling that features prayer is forbidden."

The university and the higher education associations acknowledge that public colleges can't bar funding from going to student groups just because they are religious in nature. So under the university's rules, if Badger Catholic and a secular humanist group both wanted funds for a lecture series, even one informed by the beliefs of the groups, both would be eligible.

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.

The brief from the college groups notes the explicitly religious nature of the activities of Badger Catholic that the university declined to support. Among them were summer training camps with Roman Catholic Masses, a program to bring nuns to campus to help students determine if they have the calling to be priests, and the distribution of Rosary booklets.

Public colleges and universities should have the right to set reasonable rules for student activities, as long as those rules do not require endorsement of certain views, the brief says. Further, it says that just because an activity (like prayer) is legal does not mean that a public college must provide it with funds.

State colleges and universities "need not fund all expressive activities covered by the First Amendment," the brief says. "Flag burning is to some degree a protected activity; so is nude dancing. But a university need not fund a flag burning club or a nude dancing society if doing so would not advance the purposes of its [registered student organization] program or its educational mission, so long as the denial of recognition or funding is not based on the viewpoint of the would-be [registered student organizations]."

Ada Meloy, general counsel of the American Council on Education, said that the appeals court's ruling was of concern to many public colleges and universities, not just Madison. Meloy said she hadn't done a survey to see how many colleges have similar policies to those of Madison, but that she knew many have them. The University of Wisconsin "is not an outlier," she said.

Six other groups joined the brief: 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 NASPA: Student Affairs Administrators in Higher Education.

Jordan Lorence, senior counsel for the Alliance Defense Fund, which sued the university on behalf of Badger Catholic and works on behalf of religious individuals and organizations, criticized the higher education groups for their stance on the case. "It's very disappointing that this brief was written because the universities are basically asking the Supreme Court to be free of the First Amendment when it comes to equal access to facility use and equal access to student fee money," Lorence said. "To allow a university to pick and choose between the private groups it will support on campus is diametrically opposed to the First Amendment."

The higher education groups' brief, Lorence said, is "about singling out religious groups." Further, he said that such a stance "is all the more shocking because it is coming from academics who should understand freedom of speech and the value of a marketplace of ideas."


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