Several prominent national associations of universities yesterday told the U.S. Supreme Court (amazingly) that they agree with the University of Wisconsin that public universities should be free to single out student religious expression, and exclude it from university forums opened for all student speech. The associations of universities filed a friend of the court brief in the Badger Catholic case, which the University of Wisconsin has appealed to the Supreme Court.
We have reported on the Badger Catholic case here and here. Here is a nutshell summary of the case: although the University of Wisconsin told the Supreme Court about ten years ago in the Southworth case that it would distribute student fee funds to all student organizations without discrimination based on what the student group believes and advocates, the University in recent years has reneged on that promise and claimed that the Establishment Clause required it to eliminate funding for student expression the University determines to be worship, prayer or "proselytizing," (a nasty synonym for persuading others to agree with your point of view and join your cause). The University of Wisconsin selectively denied funding to Badger Catholic, the large Roman Catholic student organization on campus because some of the students' expressive activities contained too much of what the University defined as "prayer, proselytizing and worship."
ADF filed a lawsuit against this unconstitutional action. Last September, the U.S. Court of Appeals for the Seventh Circuit in a great opinion ruled that the University's actions violated the First Amendment. The University has now appealed the case to the U.S. Supreme Court.
So the news from yesterday is that many prominent university organizations joined a friend of the court brief urging the Supreme Court to take the case and rule that the Constitution permits state universities to discriminate against private student speech that has religious content by prohibiting them from access to money available to all other student groups to express their ideas and to "proselytize" other students to join their group. Seven major organizations dealing with higher education joined the brief - the American Council on Education, the American Association of Community Colleges, the American Association of State Colleges and Universities, the American Dental Education Association, the Association of American Universities, the Association of Public and Land-grant Universities and the NASPA - Student Affairs Administrators in Higher Education.
It is shocking that this large array of universities is weighing in against the First Amendment rights of students. They are asking the Supreme Court to overturn 30 years of precedents requiring public universities to accomodate the free speech rights of students. In a series of cases stretching back to 1981, the Supreme Court has ruled that (1) universities must grant equal access to student religious expression when it comes to access to meeting facilities and access to funding student organizations; (2) the Establishment Clause does not require public universities to discriminate against private religious expression.
However, this brief essentially asks for the Supreme Court to remove the "yoke" of the First Amendment from them, and allow them total discretion to exclude student speech with religious content from the channels of communication on campus - everyone is allowed to speak, except if you have religious speech.
The amicus brief, as well as the University of Wisconsin's cert petition, offer no pedagogical reason for ostracizing religious speakers. They claim that the Establishment Clause requires it to make such exclusions. But the Supreme Court has rejected that argument at least five times in cases dating back to 1981. So the universities in Badger Catholic have added the argument that the First Amendment gives them leeway to make content- and viewpoint-based exclusions of religious speech. This is nothing less than a request to gerrymander their forums for student speech to exclude religious speakers. If there is an Establishment Clause issue in this case, it is the University of Wisconsin's content-based exclusion of student expression simply because it is religious.
Brazenly, the brief (page 10) talks about five schools that do exclude student fee funding for religious groups - Virginia Tech, Old Dominion, William and Mary Law School, Penn State and the University of Michigan-Flint. I am surprised that so many state universities have refused to obey what the Supreme Court has said in such cases as Rosenberger v. University of Virginia (1995). That was 16 years ago. Didn't they get the word from the Supreme Court that their actions violate the First Amendment? Why the willful disobedience of clear First Amendment principles? Why do they insist that this constitutional restraint on their authority needs to be removed? These are institutions of higher learning that should understand the value of robust debate, the marketplace of ideas, and no suppression of unpopular ideas, especially under a sweeping version of "separation of church and state."
The Supreme Court is scheduled to decide whether to hear the case at its conference on March 4, and announce their decision whether to hear the case on March 7.
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