University may not deny student activity fees to student religious organization, Seventh Circuit holds

The Seventh Circuit Court of Appeals held that a university violated a student religious organization’s free speech rights when it refused to allocate student fees to reimburse the organization for programs involving religious speakers or counselors.

In Badger Catholic, Inc. v. Walsh, 2010 WL 3419886 (7th Cir. 2010), Badger Catholic, Inc. filed a claim under 42 U.S.C.A. § 1983 against several members of the Board of Regents at the University of Wisconsin-Madison, after the university declined to use student activity fees to reimburse the organization for religious speakers. It was the university’s policy not to use student activity fees for speech that constituted worship, proselytizing and religious instruction, although it was willing to use the funds for dialog, discussion, or debate from a religious perspective. Badger Catholic’s budget was rejected on the grounds that much of its speech was religious in character.

Badger Catholic challenged and asserted the university’s policy constituted unreasonable content-based discrimination in violation of the free speech provisions of the First Amendment. The university contended that use of funds for prayer, proselytizing or religious instruction would violate the Establishment Clause of the First Amendment. The university further asserted that, as a public agency, it was entitled to withhold funds from religious speech even if it was not required to do so under the Establishment Clause.

The federal district court judge held that the university’s refusal to reimburse Badger Catholic violated §1983, finding that the university, having established a public forum, could not exclude speakers who wanted to use the forum for worship. In addition, the judge held that reimbursement for religious speakers’ expenses through the student fee program did not violate the Establishment Clause where the program was equally available to secular speakers. The judge then entered declaratory judgment requiring the university to reimburse Badger’s activities on the same basis as it did for other student groups.

The Seventh Circuit affirmed, finding the university could not withhold funds on the basis that they would be used to fund religious speech. In making its decision, the court made note of the U.S. Supreme Court’s holding in University of Wisconsin v. Southworth, 529 U.S. 217 (2000). In that case, a group of students challenged the student activity fee distribution program. The university defended the program on the basis that it created a public forum and that such funds were distributed without regard to speakers’ perspectives.

The court then rejected the university’s argument that it was entitled to withhold funds from religious speech, noting that the university was not propagating its own message. Rather, the university created a public forum in which the students, not the university, decide what was said. Having created the public forum, the university is obligated to honor the students’ choice.