U. of Wisconsin Cannot Exclude Religious Group From Student Fees, Court Says

September 01, 2010

A federal appeals court ruled on Wednesday against the University of Wisconsin at Madison in a case over whether the university could refuse to distribute student fees to a group of Roman Catholic students.

Upholding a federal district court's decision, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit found, in a 2-1 ruling, that the university could not exclude the group, Badger Catholic, from receiving student fees for activities such as worship, proselytizing, and religious instruction.

The appeals court noted that the university had defended its policy of "paying for student activities without regard to the speakers' perspectives" in a 2000 case, University of Wisconsin v. Southworth, that was decided by the U.S. Supreme Court.

"Although the university promised the Supreme Court in Southworth to distribute funds without regard to the content and viewpoint of the students' speech, it has concluded that this promise does not apply to speech that constitutes the practice of religion," wrote Judge Frank H. Easterbrook for the majority.

But citing the lower-court ruling, Judge Easterbrook concluded that giving money to a student group that engages in religious activities does not violate the U.S. Constitution's First Amendment.

"If the university decides that no student group should receive more than 1 percent 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," Judge Easterbrook wrote. "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."

In a dissenting opinion, Judge Ann Claire Williams wrote that the university had acted in a manner that was both "viewpoint neutral and constitutionally sound."