Following up on John’s from Friday, I wanted to fill in a few of the details of the important events in Wisconsin. At issue is — quite simply — whether religious student groups (and religious students) are truly equal participants in the marketplace of ideas on campus. For several years, the university has hamstrung the Roman Catholic Foundation, hoping to prevent it from gaining full access to funds from the mandatory student activity fee paid by all Wisconsin-Madison students. While groups like “Sex Out Loud” and WISPIRG (a Ralph Nader-inspired activist organization) have for many years obtained tens (and sometimes hundreds) of thousands of dollars from the student government, the administration has placed multiple roadblocks in front of the Roman Catholic Foundation, the largest student organization (by far) on campus. As a result, the Foundation had been underfunded by comparison to other, smaller, organizations, and this year the university is poised to deny all student fee funding to the Foundation. Late last year, when the roadblocks kept coming, the Roman Catholic Foundation filed suit (full disclosure: the Alliance Defense Fund represents the Foundation, and I am lead counsel on the case). As of last Thursday, the university’s objections to the Foundation had narrowed to two: First, the university claimed that the Foundation wasn’t sufficiently student-led to receive funding (students run all major programs and elect the board of directors, but students were a minority of the board); and second, the university claimed that the Foundation wrongfully “discriminated” by limiting its membership to Roman Catholic students. This second contention was false. The Foundation is and was open to all students (not just Catholic) who support its mission. As for the first contention, the Foundation had no objection at all to student leadership. In fact, through student majority control it believed it was student-led. Moreover, the university had for months refused to define what form of government constituted student direction and control sufficient to receive student fees. In other words, the Foundation felt like it was aiming at a moving target. The Foundation filed a motion for preliminary injunction designed to fight its way through these last two objections, and late Thursday afternoon, the federal district court handed down a mixed ruling. Inside Higher Ed (accurately) described the outcome this way:
In a technical sense, a ruling by a federal judge Thursday handed defeats to both the University of Wisconsin at Madison and to a Roman Catholic group seeking to receive support through student fees at the university. But the fault that the judge found with the Catholic group is one that it can fairly easily fix. On the key issue of legal philosophy, the judge’s ruling was very much what the religious students wanted: an order that the university not deny them recognition on the basis of Madison’s non-discrimination policy.In other words, the judge rejected the Foundation’s contention that it was student-led but in so doing outlined the form of governance (a board majority) that would be satisfactory. As we speak, the Foundation is taking steps to meet this standard. On the larger constitutional question (whether religious groups can use faith-based criteria when selecting members and leaders), the judge ruled decisively for the Foundation. This ruling not only helps the Foundation, it also rebukes the university’s (ongoing) efforts to deny recognition to several other Christian groups on the grounds that their requirements for “Christian” leadership or membership are discriminatory. It is difficult to overstate the importance of continued rulings that basic free association principles trump universities’ expansive nondiscrimination policies. Selective enforcement of these policies has led to the ejection of religious groups at campus after campus (almost all on the grounds that Christian groups shouldn’t be, well, Christian). It is easy to make technical adjustments to bylaws to make student leadership more clear. It is much more difficult to operate on campus without basic constitutional rights. The Foundation’s case is not over, nor is the battle for religious liberty and free association at Wisconsin (and elsewhere), but Thursday’s ruling provided a roadmap for both sides. As the Foundation makes its student leadership more clear, the university will be required to respect its rights to free speech and association.