Funding Discrimination at U. Wisconsin

In reaction to Susan's post about the University of Wisconsin refusing to include the Catholic group in student-fee funding:  If the University allows student fees to go to a wide variety of student groups (as I'm sure it does), then there is a very strong argument that excluding the Catholic group violates the First Amendment by discriminating based on viewpoint.  In Rosenberger v. University of Virginia, 515 U.S. 819 (1995), the Court held that it was unconstitutional to exclude an evangelical magazine from a wide program of student-fee-based funding of publications based on the fact that the magazine "manifested a belief in (or about) a deity."  After Rosenberger, school officials and funding opponents tried to argue that the case was limited to a publication that expressed views on cultural/political/social matters from a religious viewpoint, and that cases involving actual religious activity like worship and evangelism were different (because religion there was assertedly a different subject matter altogether, not a different viewpoint on cultural/political/social matters).  Without knowing the particulars, I imagine the UW officials may be asserting such a distinction here.  However, such arguments were severely shorn down by Good News Club v. Milford Central School, 533 U.S. 98 (2001), which held that a private after-school program of Bible memorization and Christian teaching and singing fit within a forum of "moral and character instruction," and thus for an elementary school to exclude it from classrooms was improper discrimination based on viewpoint rather than permissible discrimination based on the forum's subject matter.  Good News and Rosenberger together show at least that the Court will be very skeptical of claims that religious worship is different and can be excluded from a forum that allows or funds expression on a wide basis according to some quite general criterion.

Although I don't know the University's precise criterion for student-fee funding, it seems pretty likely to me that both "Lenten materials" and "evangelical activity" (as the AP story mentions) contain elements of reflection on life from a Catholic viewpoint, just as other funded materials reflect on life from other viewpoints.  One reason to assume that the UW has a broad underlying criterion is that only a few years ago in Regents of U. Wisconsin v. Southworth, 529 U.S. 217 (2000), the Court accepted the UW's claim that it had a wide-ranging public forum for student-fee-based funding, as a predicate for rejecting conservative students' objection to having portions of their fees go to groups they opposed.  Given the UW's successful arguments in Southworth, its desire to exclude "religious activities" as too controversial to include in funding looks ironic (to put it charitably).

Tom