For the last five years, the University of Wisconsin-Madison has been waging a fierce rear-guard action against equal treatment of religious speech on campus. While the university uses its mandatory student fee to fund a wide variety of student groups on campus, it has systematically shut religious groups out of funding — preferring instead to funnel hundreds of thousands of dollars into favored, liberal student organizations.
In September, the Seventh Circuit dealt a stinging blow to the university’s efforts to discriminate against religious speech, holding — in no uncertain terms — the university could not engage in viewpoint discrimination when dispensing student-fee funds, even if the funds were given to student groups engaged in prayer, worship, and “proselytizing.” In its opinion, the Court of Appeals relied on decades of Supreme Court authority (including previous litigation against the University of Wisconsin) and reaffirmed that “universities must make their recognition and funding decisions without regard to the speaker’s viewpoint.”
The University of Wisconsin has filed a cert petition seeking to overturn the Seventh Circuit’s decision. Given its long-running crusade against religious speech, this is hardly surprising. What is surprising, however, is the University has received some substantial establishment support. The American Council on Education — along with multiple other higher education associations — has filed an amicus brief in support of the University’s position, essentially asking the Court to overturn its own precedent and ratify viewpoint discrimination against any speech universities subjectively deem too religious. The Council claims the Establishment Clause requires universities to make these determinations, yet the Supreme Court rejected that argument 30 years ago and has rejected it several additional times since. In reality, the Council (and their allied groups) are asking the Court to reverse its own precedent and to expand the scope of the Establishment Clause.
But why? If the university gladly sends tens of thousands of dollars to radical groups like Sex Out Loud, why begrudge a Catholic student group its own piece of the very pie their students helped fund? The answer is clear: The University prefers one message over the other, and would rather fund events like “Condoms and Candy” than a Catholic meeting centered around — gasp — prayer.