FIRE Letter to University of Wisconsin-Eau Claire Chancellor Donald Mash, December 16, 2004

By December 16, 2004

December 16, 2004

Donald J. Mash
Chancellor
Schofield 204A
University of Wisconsin-Eau Claire
Eau Claire, Wisconsin 54702
URGENT
Sent by U.S. Mail and Facsimile (715) 836-2902

Dear Chancellor Mash:

As you can see from our Directors and Board of Advisors, FIRE unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, due process, legal equality, voluntary association, freedom of speech, and religious liberty on America’s college campuses.  Our web page, www.thefire.org, will give you a greater sense of our identity and activities.

We are gravely concerned about two recent controversies at University of Wisconsin – Eau Claire.  First, we understand that UWEC is considering adding language to its service learning policy which would ban students from engaging in religious activity for the required service learning credit.  We further understand that UWEC believes it is required to do so under the Establishment Clause of the First Amendment of the U.S. Constitution.  Second, we also understand that the Student Senate has denied funding to a student magazine for failing to prove that it is not “biased.”  Both of these issues demonstrate an alarming misunderstanding and misapplication of the First Amendment and potentially infringe on the basic rights guaranteed to students at a public university.

While FIRE would be happy to elaborate on the legal reasoning behind its conclusions in greater detail, FIRE’s positions are as follows:

First, the Establishment Clause does not require the university to exclude religious activity from its service learning program.  Quite the opposite.  The Establishment Clause explicitly permits even the subsidy of religious activity if the purpose of the program itself is not religious.  For example, the state must provide religious student groups equal access to student activity fee funds (see Rosenberger v. University of Virginia, 515 U.S. 819 (1995)) and may even provide educational vouchers to explicitly religious schools (see Zelman v. Simmons-Harris, 536 U.S. 639 (2002)).  If UWEC decides to proceed with such a ban it must be aware that it does so under no obligation from federal law.  UWEC may also want to consider that such a ban could exclude many worthwhile programs from consideration, including Alcoholics Anonymous, the YMCA, Teen Challenge, Catholic Charities, the Salvation Army, various Boys and Girls Clubs and many, many others.

Second, the Student Senate fundamentally misunderstands the idea of “viewpoint neutrality” and its application of this principle is not only wrong, but unconstitutional.  According to an article in The Spectator, the Student Senate Finance Commission director, Matt Wisnefske, stated that in order to be recognized, The Flip Side student magazine had to be “ideologically neutral” and that some “concerns over its material being biased” prevented it from receiving available funding.  More recently, Wisnefske was quoted in The Spectator as saying, “We want to exclude any groups that would be religious in nature, political in nature or anything that would have a political agenda (from being funded through student segregated fees).”  This is a deeply troubling statement that is directly at odds with decades of Supreme Court cases, including Healy v. James, 408 U.S. 169 (1972) and Board of Regents v. Southworth, 529 U.S. 217 (2000).

The Student Senate’s obligation to distribute student funds in a viewpoint-neutral manner does not mean that it can require that any funded group have no viewpoint.   It means that the Student Senate must distribute funds regardless of the viewpoint espoused, whether those points of view are “religious” or “progressive” or anything else.    Indeed, the Student Senate’s misunderstanding of the principle results in the Student Senate granting itself the power to arbitrarily censor—a result the First Amendment does not permit on a public campus.

In both of these cases, faculty and student administrators are confusing the university’s obligation as a state actor with that of its faculty and students who are private citizens.  Through the current student funding criteria, the university is in fact violating its own responsibility to be viewpoint neutral by imposing its own viewpoint (in this case an amorphous and unattainable belief that “bias” must be avoided) on protected expression.  For example, it would be unlawful for university administrators to organize a religious service or political rally and require students to attend; however, it is obligated to allow students to organize and participate in activities related to their respective faiths or political ideologies on campus.  To allow students to engage in such activity does not mean that the university endorses a particular religion or viewpoint, but rather it protects the individual rights of all of its students to have beliefs, express those beliefs, and act on those beliefs.

We understand that the American Center for Law and Justice has already written a similar letter to Professor Kent M. Syverson against the religious service learning ban that has been largely ignored in the debate and highlights points similar to ours.  We agree with its assessment that “the proposed amendment raises more constitutional difficulties than it allegedly solves.”

FIRE hopes that we can resolve this situation thoroughly and swiftly. We request that the University of Wisconsin at Eau Claire reconsider the proposed ban on religious service learning in light of the fact that the law requires no such ban.  We also ask that the student government study the meaning of viewpoint neutrality and stop considering the viewpoint of an organization in its funding decisions.  We are aware that the Student Senate has denied The Flip Side’s appeal for funding.  We urge the Student Senate to reconsider this decision immediately.

If on the other hand, the university decides to continue to infringe on the rights of its students, we are committed to using all of our resources in support of students’ expressive rights and to seeing this matter through to a just and moral conclusion.

We look forward to hearing from you soon.

Sincerely,

Greg Lukianoff
Director of Legal and Public Advocacy

cc:
Ron Satz, Provost and Vice Chancellor, University of Wisconsin-Eau Claire
Steve Tallant, Associate Vice Chancellor, University of Wisconsin-Eau Claire
Kimberly Barrett, Associate Vice Chancellor, University of Wisconsin-Eau Claire
Donald Mowry, Director of Service Learning, University of Wisconsin-Eau Claire
Susan Harrison, University Senate Chair, University of Wisconsin-Eau Claire
Patricia A. Brady, General Counsel, University of Wisconsin System
Kent Syverson, Academic Policies Committee Chairman, University of Wisconsin-Eau Claire
Chad Wade, Student Senate President, University of Wisconsin-Eau Claire
Brian Vander Kamp, The Flip Side Editor in Chief, University of Wisconsin-Eau Claire

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Schools: University of Wisconsin – Eau Claire Cases: University of Wisconsin at Eau Claire: Unconstitutional Student Fee Funding Amendment