Supreme Court Won’t Hear Wisconsin Student Fees Appeal

The Supreme Court has declined to hear the University of Wisconsin’s appeal in Badger Catholic Inc. v. Walsh et al.   The University had asked the Court to overturn the 7th Circuit's decision requiring it fund student religious speech as part of the forum created by student activity fees. 

To recap, the student group Badger Catholic Inc. requested $253,000 in funding through UW Madison's segregated fee system.  The school's fee system is used to fund the speech and activity of hundreds of student organizations.  The group was approved for all but $35,000, earmarked for activities the University deemed “proselytizing, religious instruction and worship.”  Badger Catholic sued the University, arguing that the ban unconstitutionally discriminated against religious speech.

The 7th Circuit court of appeals ruled 2-1 in favor of Badger Catholic Inc.  In its analysis, the 7th Circuit held that the University did not violate the establishment clause of the Constitution by allowing religious views to be part of a public forum, in this case the segregated fee system.  Further, it held that excluding religious speech would constitute viewpoint discrimination and was unconstitutional. 

Because the Court chose not to hear the case, the ruling stands for the 7th circuit.  However, there's ample evidence that other courts would rule similarly if presented with a similar situation. 

In Rosenberger v Rectors of the University of Virginia, the Supreme Court made it clear that not only did the University not violate the establishment clause by allowing religious speech in a public forum it supported with student activity fees, but excluding religious speech would constitute viewpoint discrimination.  The court wrote,

A public university does not violate the Establishment Clause when it grants its facilities on a religion-neutral basis to a wide spectrum of student groups, even if some of those groups would use the facilities for devotional exercises.

Once a university decides to fund or otherwise support student organizations who engage in speech they can’t deny funding to a group because they disagree with its message or issues, religious or otherwise.  In addition to the Rosenberger decision, the Court has repeatedly made this clear most notably in Southworth v Board of Regents of the University of Wisconsin and Widmar v. Vincent.