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Legislators request Lautenschlager’s opinion in Eau Claire controversy

November 17, 2005

Twenty-five Wisconsin legislators sent a letter to Attorney General Peg Lautenschlager Wednesday, asking her legal opinion on a University of Wisconsin-Eau Claire policy, which they feel may be unconstitutional.

The policy, which first made headlines earlier this month, prohibits resident assistants from leading Bible studies in their residence halls.

“Consultations with the Legislature’s top attorneys indicate that this policy may conflict with the ‘free exercise of religion clause’ of the First Amendment,” the letter reads. “We are concerned the Bible ban puts the UW System in a precarious position with the U.S. Constitution.”

Just two days earlier, the Attorney General’s Office received a similar letter from UW System President Kevin Reilly, requesting Lautenschlager’s “written opinion as to whether the University’s practice is consistent with First Amendment standards.”

However, State Rep. Scott Suder, R-Abbotsford, one of the letter’s authors, said the UW System has handled the controversy “in the worst possible manner” and characterized Reilly’s offering as less thorough and sincere than his own. While Reilly’s letter requested only a legal opinion, the legislators’ letter included a series of specific questions about the particulars of the policy for the attorney general.

“President Reilly could change this policy immediately and he hasn’t,” Suder said. “The president’s letter doesn’t go far enough and seems to be looking for a convenient answer. We want a full legal opinion — that’s where we differ.”

Brian Rieselman, a communications officer in the Attorney General’s Office, acknowledged the receipt of both letters, but would not comment on if or when a response would be provided.

“We don’t speculate on timelines because every request is different,” Rieselman said. “We just received the request and the attorney general is reviewing the request.”

Echoing comments made earlier in the week by U.S. Rep. Mark Green, R-Wis., Suder said the UW-Eau Claire policy is embarrassing the state of Wisconsin on a national stage.

“The UW System administration is quickly becoming a laughingstock for anyone who seriously cares about free speech,” Suder said. “People nationwide are just simply shaking their heads at this policy.”

The Eau Claire policy is “flatly unconstitutional,” Suder said, and noted he and his colleagues are “trying our best” to prevent a lawsuit against the state of Wisconsin.

“We will continue to challenge this policy from every angle and if we have to write legislation to change it we will,” he said. “[But] we want to give the university a chance to realize they’re treading on very thin constitutional ice here.”

Although initially sympathetic with UW-Eau Claire earlier this month, UW-Madison political science professor Donald Downs said he now feels the contested policy — engineered in part to protect the establishment clause of the First Amendment — violates freedom of expression and is therefore unconstitutional.

“They can deal with that problem in a much less drastic way than this broad prohibition across the board,” Downs said. “It’s overbroad — that’s the problem.”

Downs, who reported talking with a lot of people about the issue in the past two weeks, said the Constitution protects an RA leading a Bible study in his or her dorm room as long as a differentiation is established between the RA’s private and professional life.

“This distinction between official capacity versus private capacity [is] the best constitutional position,” he said. “They don’t even make an attempt to do that.”

In addition to the questionable legality of the policy, Suder expressed his concern over what he perceives as an anti-Christian mentality throughout the UW System.

“They’re certainly going to great lengths to make certain that Christian Bible study is not allowed in dorm rooms,” Suder said in an earlier interview. “It appears to be a concerted effort by some in the UW administration to limit Christian free thought and that is unacceptable.”

Downs said he believes the university was basically well intentioned in its policy, but noted if Suder’s allegations are accurate, they would be in a lot more trouble.

“They weren’t sensitive enough to the issues of free expression on the other side,” he said. “If this thing is motivated by any kind of anti-Christian animosity, then you would have a bigger problem, but I see no evidence of that.”

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Schools: University of Wisconsin – Eau Claire University of Wisconsin – Madison Cases: University of Wisconsin at Eau Claire: Ban on RAs’ Leading Bible Studies