On Monday, the Supreme Court of the United States rejected an appeal by the University of Wisconsin at Madison (UW) against a ruling from the United States Court of Appeals for the Seventh Circuit that prohibited the university from denying funding to student organizations that engage in religious activities. This decision represents a victory for the First Amendment rights of students and student groups, and leaves intact the conception of student groups as private speakers in a government-established forum (i.e., the student organization structure).
The Seventh Circuit, which covers the states of Illinois, Indiana, and Wisconsin, had ruled that UW could not create a system that funded student organizations’ speech generally but denied funding for activities such as worship, prayer, and religious training sessions. Badger Catholic, a religious student organization, challenged the UW system after the group was denied funding from the student activity fee to support summer training camps with Roman Catholic Masses, a program that brought nuns to campus to speak with students and distributed rosary booklets.
According to a 2-1 opinion by Judge Frank Easterbrook, when a public university supplies funding for certain types of activities, like counseling, the First Amendment does not permit that university to discriminate against groups who engage in those activities with a religious perspective. According to the opinion,
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.
A coalition of higher education organizations supported UW’s efforts to convince the Supreme Court to review the Seventh Circuit’s decision, arguing that universities must have the discretion to determine which types of activities they wish to support with student activity fees. The coalition also argued that universities should be given leeway in ensuring that they do not trespass upon the Establishment Clause, which forbids the government from establishing a religion. Although the Supreme Court’s decision not to hear the case is not an endorsement of the lower court’s result, the Seventh Circuit’s opinion now remains legally binding on the states within its jurisdiction, and it serves as non-binding authority for the other courts of appeals.
Jordan Lorence, senior counsel for the Alliance Defense Fund, which represented Badger Catholic, responded favorably to the Supreme Court’s decision not to hear the case. "The constitutional rights of Christian student organizations should be recognized by university officials just as they recognize those rights for other student groups," Lorence said.
The Seventh Circuit was certainly correct to refuse to give university administrators discretion to treat religious counseling differently than secular counseling, essentially penalizing speech for its content. We are glad the Supreme Court did not disturb this well-reasoned decision.