FIRE’s case at the University of Wisconsin–Eau Claire has been all over the news in recent weeks, and things just keep getting worse for the UWEC administration. As if having its Bible study ban exposed on Fox News Channel’s Special Report with Brit Hume again on Monday wasn’t bad enough, UWEC’s latest attempt to salvage its edifice of censorship was quashed shortly before Thanksgiving.
As we pointed out on November 18—and as was widely reported in the media—the president of the University of Wisconsin System asked Wisconsin’s attorney general to evaluate the constitutionality of UWEC’s prohibition on RAs’ leading Bible studies in their dorms. Not surprisingly, UW’s letter misrepresented the issues involved in this case, characterizing UWEC’s policy (which the system’s flagship Madison campus shares) as applying to “all activities, regardless of viewpoint, including such activities as partisan politics, religious studies or ‘sales party’ events,” not just Bible studies. Thanks to a letter from FIRE, the attorney general found out the truth: that UWEC has allowed and even lauded RAs’ involvement in overtly ideological activities such as The Vagina Monologues and the Tunnel of Oppression. We also reminded the attorney general that UWEC obliges RAs explicitly and in writing to “actively assist in the social, educational, service, recreational, and political programs and activities of the hall.”
Shortly after our letter was sent, a response from Wisconsin’s deputy attorney general came out, and it is remarkable. The attorney general declined UW’s request because “[w]ere the Attorney General to address substantively the issue presented and conclude that the UWEC policy likely violates, and has violated the constitutional rights of those affected, in effect we would be conceding liability on behalf of the State.” Got that? The attorney general’s office specifically refused to certify UWEC’s policy as constitutional on the grounds that it couldn’t risk finding otherwise. Does anybody really think that would have happened if the university’s actions weren’t obviously unlawful?
The deputy attorney general’s letter goes on to lay out some legal issues that policies affecting speech must address—and if you read them, it’s obvious that none of them ever occurred to UWEC. As the letter points out, “[A] public university’s regulation restricting speech must be necessary to serve a compelling state interest and narrowly tailored to achieve that purpose.” UWEC’s Bible study ban is neither. There is no compelling state interest in protecting the super-sensitive sensibilities of a hypothetical student (no such person ever complained, to our knowledge) who might fear his or her RA isn’t “approachable” because of having led a Bible study (UWEC’s stated rationale), and requiring RAs to forfeit their First Amendment rights in their dorm rooms because of a job that pays a whopping $1.41 per hour is the opposite of “narrowly tailored.”
The letter also states that “a public university may prohibit certain activities constituting speech if those activities substantively interfere with reasonable campus rules or the opportunity of other students to obtain an education.” Well, sure it can. But that means banning things like protests in places where classes would be disrupted or walkways would be blocked. No reasonable person loses his “opportunity to obtain an education” because of some guy quietly reading and discussing Paul’s letter to the Romans in his room with five of his buddies.
And there’s more! The deputy attorney general’s letter spells out a list of questions that it says must be answered in constructing a proper and constitutional policy:
- If the policy is needed in order to safeguard students, why is it limited to a single campus?
- What is the justification, and foundation therefore, for restricting the policy to dormitories?
- How does this policy compare with other activities allowed or prohibited in University owned or operated facilities, and in particular residential facilities?
- Are there any specific contractual terms implicated by the policy?
- Are other university employees subject to similar restrictions?
- Who has reviewed/approved/objected to this policy, and in particular what administrative or legal approval or review has been conducted?
- What facts suggest or refute the notion that students feel compelled to participate in RA-led activities in dormitories?
- Since UWEC allows Bible study and other religious activities to occur in university facilities, is there any concern that permitting Bible study in dormitories might violate the Establishment Clause of the First Amendment?
- What alternatives to the policy has UWEC considered that would enable it to protect the interests of its students, including the rights of those wishing to conduct activities currently prohibited by this policy?
- How long has the policy been in effect?
- As an institution dedicated to the exchange of ideas with the objective of enhanced understanding, what effort has UWEC made toward a satisfactory compromise?
It is more than obvious that UWEC never considered questions like these before promulgating the Bible study ban. Its so-called longstanding policy was really just a diktat from a censorship-happy administrator who thought she could go after a particular kind of expression she didn’t like—this “policy” was a letter, for crying out loud!—and thus the attorney general has refused to lie and say that it passes constitutional muster.
UWEC’s repeated attempts to defend the indefensible are wearing thin. It is long past time for UWEC to do the right thing, restore the First Amendment, and repeal its ban.
Come on, guys: the attorney general isn’t going to save you like you thought, and you can only deny reality for so long. This policy is a mistake, and continuing to pretend otherwise is an even bigger one.