Sept. 7, 2010 – The University of Wisconsin-Madison’s student assessment fund for extracurricular activities must reimburse student religious groups for activities constituting religious practices, the U.S. Court of Appeals for the Seventh Circuit recently held.

In Badger Catholic, Inc. v. David Walsh, et al., Nos. 09-1102 & 09-1112 (Sept. 1, 2010), the appeals panel ruled that U.W.-Madison (the university) does not violate the Establishment Clause of the First Amendment by reimbursing religious student groups for religious activities.

In addition, the panel held that in establishing a student fund, the university created a public forum where the students decide what is to be said, “[a]nd having created a public forum, the University must honor the private choice” that student groups have in using the funds.

Badger Catholic applied to become a “registered student organization” entitled to receive funds from a reserve funded by mandatory student assessments that are separate from tuition.

But the university would not reimburse Badger Catholic for six events because the activities constituted worship, proselytizing or religious instruction. One event established a mentoring program where students received counseling from Catholic nuns and priests, and a summer retreat with Catholic mass and prayer. However, the group did receive reimbursement for other services and educational opportunities that were not considered religious practice.

The federal district court entered a declaratory judgment that the university must reimburse Badger Catholic on the same basis as other groups. Badger Catholic sought damages for prior amounts that were not reimbursed and an injunction. Both sides appealed.

Writing for a 2-1 majority, Chief Judge Frank Easterbrook concluded that “the University’s activity-fee fund must cover Badger Catholic’s six contested programs, if similar programs that espouse a secular perspective are reimbursed.”

In dissent, Judge Ann C. Williams disagreed, arguing that U.W.-Madison has the right to categorically exclude certain types of speech from access to the fund as long as the exclusion is viewpoint neutral, and to exclude all religious activities is a categorical, neutral exclusion.

Establishment Clause and public forum

The university argued that funding these religious activities would violate the Establishment Clause of the First Amendment, and an obligation not to violate the constitution is a compelling interest that justifies discriminatory treatment.

The panel disagreed, concluding that the university would not violate the Establishment Clause by reimbursing a religious group for religious activities. It also ruled that “universities must make their recognition and funding decisions without regard to the speaker’s viewpoint.”

Badger Catholic argued for damages, but the court concluded that damages were not available because the university is part of the state and damages were precluded by federal law.

Badger Catholic also argued for damages under Wisconsin contract law based on a previous agreement that the university would reconsider previous denials for reimbursement but did not. But the court held that Badger Catholic did not follow Wisconsin statutory provisions that would allow it to recover contract damages based on a contract with the state.

Instead, the panel upheld the declaratory judgment of the lower district court, and reassured Badger Catholic that if the university failed to comply with the judgment by “danc[ing] around” it, the university “will come to regret it.”

Dissent 

Judge Williams recognized that the university engaged in content discrimination by choosing not to fund religious practices altogether, but argued that content discrimination is constitutionally permitted in the limited public forum that the university created.

The university “has the discretion to decide that certain activities are worth funding over others, so long as its decision-making criteria is viewpoint neutral,” Judge Williams wrote.

“The panel has effectively commanded the university to enlarge its forum to include the worship and other purely religious activities of every student group.”