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Highlights from 7th Circuit University Funding Decision E-mail
Written by Don Byrd   
Thursday, 02 September 2010

In a 2-1 decision I mentioned earlier, a panel of the 7th Circuit ruled unconstitutional the University of Wisconsin's policy of withholding funds from student groups for activities that constitute "worship, proselytizing or religious instruction." The majority opinion written by Judge Easterbrook emphasizes the school's decision to distribute funds as a public forum without regard for the content or viewpoint of the organization or activity being funded. With such an open policy, the court argues, Wisconsin may not deny religious activity, even if its purpose is to avoid violating the separation of church and state.

In a strong dissent, Judge Williams contends that the University must be given the power to determine the purpose and goals of the forums it creates, allowing it to deny expression that does not comport with that purpose.

From the majority (pdf), on the need to treat equal types of activity equally:

The University is free to decline funding for all summer retreats; if it does not pay for training workshops over the summer for members of FH King, it need not pay for Badger Catholic’s retreats either. Likewise, if the University refuses to fund a group such as Sex Out Loud that counsels students to engage in “healthy sexuality” (and distributes contraceptives to reduce the risk), it need not fund a group that counsels from a religious perspective. If the University decides that no student group should receive more than 1% of the fund, or some dollar cap, it could apply that neutral rule to Badger Catholic in common with all other claimants on the limited pot. But having decided that counseling programs are within the scope of the activity fee, the University cannot exclude those that offer prayer as one means of relieving the anxiety that many students experience.
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. But the University of Wisconsin has chosen to pay for student-led counseling, and its decision to exclude counseling that features prayer is forbidden under Widmar and its successors.

 On the public forum the school created through its student activity funding mechanism:

[T]he 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. Readers who think that this line is overly formalistic...must recall that the University of Wisconsin itself persuaded the Supreme Court to hold that dissatisfied students are not entitled to get their student-activity fees back, precisely because the fees are used to operate a public forum in which students themselves, and not the University, decide what is to be said. The Supreme Court gave its imprimatur in Southworth, with the proviso that the University must establish neutral rules and not shut out any perspective that is within the program’s general definition of extracurricular student activity.

On the difficulty in distinguishing between discussion on a religious topic (which the University was willing to fund) and engaging in religious exercise (which it was not):

The University’s assurance that it will fund discussion and debate, including discussion with a religious component, because it views discussion and debate as an important part of education, coupled with a declaration that there is just too much devotional activity in Badger Catholic’s program, leads us to wonder how the University would deal with an application by a student group comprising members of the Society of Friends.

Quakers view communal silence as religious devotion, and a discussion leading to consensus as a religious exercise. Adherents to Islam and Buddhism deny that there is any divide between religion and daily life; they see elements of worship in everything a person does. Now maybe Quakers, Muslims, and Buddhists scorn the University’s largesse (as Badger Catholic did until 2003), but a constitutional rule must be general enough to handle all sorts of religion and all choices by student groups.

In dissent (pdf, starting on page 16), Judge Williams argues that "the panel’s opinion fails to recognize the University’s power to define the purposes and goals of its own forum."

On the availability of University funds to Badger Catholic for non-worship activities:

The panel is correct that the University offers funding for training workshops during the school year and summer breaks, but Badger Catholic is also free to access that funding and it has. For example, in the 2007-08 year, Badger Catholic was reimbursed for events titled “Leadership Training Group” and “Mary House Overnight.” Badger Catholic is also free to access funding that is provided to student groups that offer student counseling.Just as Sex Out Loud could access the forum to counsel students on “health sexuality,” Badger Catholic could access the forum for activities that counseled students from a religious perspective. In the 2007-08 year, Badger Catholic was reimbursed for various small groups such as “Breakfast Club,” “Catholic Student Union,” “New Student Welcome” and “Sunday Night Sexuality.”

The University pointedly does not exclude events or activities from the forum because they approach leadership training or counseling from a religious perspective. In fact, Badger Catholic was reimbursed for the vast majority of the funding it sought in the relevant year, an amount of money totaling 9% of the total fund. What the University has not funded are six activities that do not merely involve, but are mostly “worship, proselytizing or prayer” because those activities do not further the forum’s goals. Our task is to determine whether this line is both viewpoint neutral and reasonable in light of the forum’s purpose of enhancing the students’ educational and extracurricular campus experience.

On the harm done by the majority's contention that religious worship is indistinguishable from speech from a religious viewpoint (my emphasis):

The panel reaches its conclusion that the University is engaging in viewpoint discrimination by stating that purely religious activities have “little meaning on their own” and cannot be meaningfully distinguished from the categories of “dialog, discussion or debate from a religious perspective” funded by the University. This conclusion degrades religion and the practice of religion. If religion, and the practice of one’s religion, can be described as merely dialog or debate from a religious perspective, what work does the Free Exercise clause of the First Amendment do? The Free Speech clause, which provides constitutional protection of the right to discuss and debate views, would sufficiently protect the right of people to have “dialog, discussion or debate from a religious perspective.” That cannot be right, and that religion is not set apart from other forms of dialog or discussion has never been the position of the Supreme Court.

 On whether this distinction between speech and worship entangles the court in theological matters:

[T]here is no need to get into a theological debate about what worship means and whether there is truly a secular equivalent to worship. 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. If, as Badger Catholic claimed at oral argument, a secular form of worship is possible (for example, a group self-identifies as “worshipping” the Yankees), then the University would have the same neutral basis for declining to fund that specific worship activity.

Arguing that the University is engaged in permissible "content discrimination", not impermissible "viewpoint discrimination":

The University is not withholding benefits from Badger Catholic because it has a religious perspective. Badger Catholic would only have a claim of viewpoint discrimination if the University was choosing to allocate funding for Presbyterian or Baptist or Jewish religious services but declining to fund Catholic worship services, for example, but that is not the case here.
Here, there is no equivalent secular speech funded. To exclude purely religious activities is a categorical, neutral exclusion.

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