Perhaps emboldened by its #5 ranked football team, the University of Wisconsin is asking the United States Supreme Court to review a case involving the allocation of student activity fees to religious organizations. We brought you the news earlier this fall, when the U.S. Court of Appeals for the Seventh Circuit upheld a lower court's decision that the University violated the First Amendment rights of the Badger Catholic student organization (who ADF represents) when it refused to allow the group to use any student activity fee money for activities that involve student-led prayer, worship, proselytizing, or religious instruction.
Last week, the University filed a Petition for Writ of Certiorari at the Supreme Court in Badger Catholic v. Walsh, asking the high court to take the case and reverse the well-reasoned decision by Chief Judge Easterbrook of the Seventh Circuit. I've written extensively on several occasions about the Constitutional law that governs allocation of student activity fees. The basic point is that if a public university mandates the payment of a student activity fee that it allocates to student groups, then the university must allocate that money on a viewpoint neutral basis. Fees must be allocated on a viewpoint neutral basis because when the university collects the fee to redistribute to student groups, it creates a public forum for student speech.
The University contends in Badger Catholic, that allowing the students to use student activity fees for student-led prayer, worship, proselytizing, and religious instruction violates the Establishment Clause of the First Amendment. However, the Establishment Clause is not an issue for consideration, because the government is not engaged in any speech. Students provide the money, and only student use the money for student-initiated speech.
The University is no stranger to student fee litigation, as one of the landmark cases in that area of law involved a challenge to the University's mandatory student fee: Board of Regents of the University of Wisconsin System v. Southworth. There, several students at the University argued they should be allowed to opt-out of paying the mandatory student fee because student groups they disagreed with received student fee funding. The University resisted this argument and contended that students should not be allowed to opt-out of paying the mandatory fee so long as it is distributed on a viewpoint neutral basis. The Supreme Court agreed with the University. But now the University not only wants to have its cake (a mandatory fee), but to eat it too (excluding some student speech from funding).
It looks like I was somewhat right a few months ago when I asked if history was repeating itself at the University of Wisconsin. We hope that doesn't mean déjà vu with student fees again before the Supreme Court.