Church and State and Student Activities

The University of Wisconsin at Madison improperly denied funding for some activities of a Roman Catholic student group, imposing unconstitutional limits on activities involving worship, a federal appeals court ruled Monday.

The 2-1 ruling by the U.S. Court of Appeals for the Seventh Circuit was a significant win for 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 ruling 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 -- no matter 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, by Judge Frank H. Easterbrook. "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 of Wisconsin at Madison's rules about student fees and student organizations have been controversial for years and in 2000 led to Board of Regents of University of Wisconsin v. Southworth, a U.S. Supreme Court decision that upheld the right of the university to have mandatory student fees to support student organizations, but only if the distribution of funds (largely performed by students at Madison and at many campuses) is "viewpoint neutral." Ever since then, the university has faced challenges over whether its rules for distributing student fees meet that test.

The current Madison case has been described as being about a university's refusal to support a religious group's student activities. A news release Monday from the Alliance Defense Fund, which backs the rights of religious students nationally and in this case, said that the court had found that the university "cannot deny funding to Catholic student group."

In many ways, that question was already resolved (in favor of religious groups) -- and Madison already provides considerable funding to Badger Catholic. (An earlier series of disputes concerned questions over whether the group was sufficiently controlled by students to be eligible for funding, but the university has agreed that the current structure is consistent with its rules.) And as the dissent in the case notes, Badger Catholic received funds for the "vast majority" of the activities for which it sought support, many of them based on the group's religious beliefs.

Madison rejected support for six activities that violated its rules against student fee support for worship, proselytizing or prayer -- arguing that these activities were removed from the general kinds of intellectual and social exchange that the student-fee-funded activities are designed to promote. For instance, one of the rejected activities was a four-day summer leadership retreat at which there were three masses and four communal prayer sessions (along with other activities).

The majority decision by the appeals court Monday said that in ruling out activities that featured some prayer, the university was going against the pledges that appeared to convince the Supreme Court in 2000 that student fee decisions would not be made with regard to the views of various groups. "Although the university promised the Supreme Court in Southworth to distribute funds without regard to the content and viewpoint of the students’ speech, it has concluded that this promise does not apply to speech that constitutes the practice of religion."

The decision cited a series of rulings by the Supreme Court that said state entities could support activities by religious groups, and found that since this was the case, the university couldn't separate out worship activities from other activities -- once Madison committed to supporting general categories such as leadership or counseling. The decision also rejected an argument by the university that it could legitimately decide not to support certain categories of religious activity. The university cited Locke v. Davey, a 2004 Supreme Court decision that upheld the right of Washington State to maintain a state scholarship program that did not permit grants for the study of theology.

That decision wasn't relevant, the majority ruled Monday. "[I]n Locke ... the state’s program did not evince hostility to religion. The scholarships could be used at pervasively sectarian colleges, where prayer and devotion were part of the instructional program; only training to become a minister was off limits. The University of Wisconsin, by contrast, does not support programs that include prayer or religious instruction," the decision said.

"Second, and more importantly, the state’s decision in Locke concerned how to use funds over which it had retained plenary control. Choosing which programs to support and which not, whether by having a department of philosophy but not a seminary, or by granting scholarships to study theology but not prepare for the ministry, is a form of government speech.... But the University of Wisconsin is not propagating its own message; it has created a public forum where the students, not the university, decide what is to be said. And having created a public forum, the university must honor the private choice."

In her dissent, Judge Ann Claire Williams said that the university had in fact come up with a legitimate division between activities it would and would not support with student fees. She questioned the idea that worship and related activities should be viewed simply as another way to express a point of view. She said that worship is something else altogether from the debate and discussion from a religious perspective that the university is required to support, and that suggesting that worship is no different from discussion "degrades religion and the practice of religion."

She also said that the university in fact was being consistent in how it treats Badger Catholic and other groups. "The university does not deny money to Badger Catholic for expressing the Catholic version of worship; it denies money to any group to practice its version of worship."

Judge Williams added that the majority opinion would needlessly limit a public university's authority. "Although a university cannot systematically deny or discriminate against any group for its views, it can draw lines and make hard decisions about funding," she said. "Given the limits and goals of the forum, the university’s decision to draw that line at a category such as purely religious activity is not unconstitutional. Our task is merely to decide whether that decision was viewpoint neutral, and it was."

A spokesman for Madison said that lawyers there were studying the decision and that the university could not yet comment on its response.

The statement from the Alliance Defense Fund, which sued Madison, praised the appeals court's ruling. "The constitutional rights of Christian student organizations should be recognized by university officials just as they recognize those rights for other student groups,” said Jordan Lorence, senior counsel. "The university funded the advocacy and expression of other student organizations but singled out Badger Catholic for exclusion based purely upon its viewpoint. The Seventh Circuit rightly regarded this as unconstitutional."

But Barry W. Lynn, executive director of Americans United for Separation of Church and State, said via e-mail that the decision was a dangerous one. "Activities like evangelism, prayer and worship should always be supported with funds given voluntarily," he said. "For a long time, this was a central principle of church-state law. In recent years, courts have drifted from this concept, much to the detriment of religious freedom. Whether university-based or not, religious groups should pay their own way. Any other system smacks of a church tax."

Ada Meloy, general counsel for the American Council on Education, said that "the whole area of how public institutions deal with religious groups is a complicated set of dense legal rulings." Given that the ruling on Wisconsin has a "well-reasoned dissent," she said she doubted many public institutions outside the Seventh Circuit would change their practices right now. "It will be a case worth watching if it goes further," she said.