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In a victory for free speech on campus, the United States Court of Appeals for the Seventh Circuit on Wednesday that the University of Wisconsin-Madison's (UW's) policy of denying funding to student groups that engage in "worship, proselytizing, and religious instruction" is a violation of the First Amendment.

The case, Badger Catholic, Inc. v. Walsh, arose when student group Badger Catholic (formerly Roman Catholic Foundation, UW-Madison) was repeatedly denied student activities funding by both UW and its student government because the group engages in religious speech. As Judge Frank Easterbrook, author of the Seventh Circuit's majority opinion, explains:

The University won't pay for three categories of speech: worship, proselytizing, and religious instruction. It is willing to use student activity fees for what it calls dialog, discussion, or debate from a religious perspective, but not for anything that it labels worship, proselytizing, or religious instruction.

Easterbrook observes that these distinctions have "little meaning on their own," and notes that the programs sponsored by Badger Catholic that have been denied funding include spiritual counseling and a leadership retreat. Turning to the Supreme Court's holding in Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000), in which the Court held that student activities funds must be distributed on a viewpoint neutral basis, Easterbrook points out that the university has apparently concluded, incorrectly, that this requirement "does not apply to speech that constitutes the practice of religion."

UW argued that funding Badger Catholic's speech would violate the Establishment Clause of the First Amendment, but Easterbrook knocks down this argument, affirming the district court's reliance on the Supreme Court's decisions in Widmar v. Vincent, 454 U.S. 263 (1981), and Rosenberger v. University of Virginia, 515 U.S. 819 (1995). The basic principle running through these decisions is twofold. First, when a public university opens a forum to speech, as it does when it establishes a system of recognition for student groups, it cannot condition recognition or funding on the basis of viewpoint. Second, as long as funding or facilities are equally available for both religious and secular viewpoints, no Establishment Clause problem is presented. Applying these holdings to the instant case, Easterbrook writes:
  

The University is free to decline funding for all summer retreats; if it does not pay for training workshops over the summer for members of FH King, it need not pay for Badger Catholic's retreats either. Likewise, if the University refuses to fund a group such as Sex Out Loud that counsels students to engage in "healthy sexuality" (and distributes contraceptives to reduce the risk), it need not fund a group that counsels from a religious perspective. If the University decides that no student group should receive more than 1% of the fund, or some dollar cap, it could apply that neutral rule to Badger Catholic in common with all other claimants on the limited pot. But having decided that counseling programs are within the scope of the activity fee, the University cannot exclude those that offer prayer as one means of relieving the anxiety that many students experience.

Easterbrook further points out the impossibility of separating "discussion" of religion with "worship, proselytizing, or religious instruction":

The University's assurance that it will fund discussion and debate, including discussion with a religious component, because it views discussion and debate as an important part of education, coupled with a declaration that there is just too much devotional activity in Badger Catholic's program, leads us to wonder how the University would deal with an application by a student group comprising members of the Society of Friends.

Quakers view communal silence as religious devotion, and a discussion leading to consensus as a religious exercise. Adherents to Islam and Buddhism deny that there is any divide between religion and daily life; they see elements of worship in everything a person does. Now maybe Quakers, Muslims, and Buddhists scorn the University's largesse (as Badger Catholic did until 2003), but a constitutional rule must be general enough to handle all sorts of religion and all choices by student groups.

Finally, and very interestingly, Easterbrook takes on the impact of the Supreme Court's decision earlier this summer in Christian Legal Society v. Martinez. Easterbrook writes:

We deferred action on this appeal while the Supreme Court had Christian Legal Society under advisement. It is the latest in the sequence, beginning with Healy v. James, 408 U.S. 169 (1972), and extending through Widmar, Rosenberger, and Southworth, in which colleges or universities set limits on what student organizations they would recognize and fund. Healy, which forbade viewpoint discrimination, did not concern religion, so we have not discussed it. All the other cases in this sequence concern student groups that engage in sectarian speech. We wanted to see whether the Court would modify the approach articulated in Widmar, Rosenberger, and Southworth. The Court left that approach in place and reiterated the norm that universities must make their recognition and funding decisions without regard to the speaker's viewpoint. The Justices divided on the question whether Hastings College of the Law had satisfied the neutrality requirement, but no Justice disagreed with the propositions that "[a]ny access barrier must be reasonable and viewpoint neutral" (130 S. Ct. at 2984) and that "singl[ing] out religious organizations for disadvantageous treatment" (id. at 2987) is permissible only if the requirements of "strict scrutiny" can be satisfied. Christian Legal Society described Widmar as a case holding that refusing to allow "religious worship and discussion" in a public forum is forbidden viewpoint discrimination (ibid.). There can be no doubt after Christian Legal Society that the University's activity-fee fund must cover Badger Catholic's six contested programs, if similar programs that espouse a secular perspective are reimbursed.

This is a useful reading of CLS v. Martinez, and it suggests that lower courts will take CLS as the narrow opinion it was. This result would be beneficial to students and student groups in the exercise of their freedoms of speech and association.

We'll have more on the Seventh Circuit's opinion next week, but for more analysis, check out Alliance Defense Fund Senior Counsel Jordan Lorence's take on the ruling . As Jordan says, "UW does not show neutrality towards religion by treating religious groups worse than other student groups." We are pleased that the Seventh Circuit recognized the same in handing down this important ruling.