BADGER CATHOLIC, INC. v. WALSH (September 1, 2010)

Badger Catholic is an approved and registered student organization at the University of Wisconsin. As such, it is eligible to apply for and receive money from the University. The monies come from a University account that is funded by a fee charged to every university student. The Supreme Court approved the University's practice (University of Wisconsin v. Southworth) because it was a neutral, forum-creating program that distributed funds without regard to viewpoint. The University rejected Badger Catholic's request for funds for six different programs. The denial was based on the University's practice of not funding programs that involve "worship, proselytizing, or religious instruction." Judge Adelman (W.D. Wis.) concluded that funding such activity would not violate the Establishment Clause and entered a declaratory judgment requiring the University to fund Badger Catholic on the same basis it funds other organizations. The University appeals -- Badger Catholic cross-appeals.

In their opinion, Chief Judge Easterbrook and Judges Evans and Williams (dissenting) affirmed. The Court cited two Supreme Court cases (Widmar and Rosenberger) in support of its conclusion that the district court was correct in its decision that funding the programs would not violate the Establishment Clause. The University also argued that it was permitted to withhold the funds even if the funding did not violate the First Amendment. The Court distinguished the University's reliance on Locke (which permitted a state to exclude ministry study from its scholarship program). The decision in Locke was a form of government speech -- here, the University created a public forum for student speech. Having created the public forum, it must not discriminate among the speakers within the scope of the forum. The University must fund the rejected programs if similar, secular programs are funded. The Court also rejected Badger Catholic's cross-appeal: a) damages are not available against the University because it is not a "person" under § 1983, b) damages are not available against the individual defendants because of official immunity, c) damages are not available under state law because Badger Catholic failed to comply with statutory notice requirements, and d) the district court did not abuse its discretion in issuing a declaratory judgment instead of an injunction.

Judge Williams dissented. She phrased the issue as whether the University's rejection of Badger Catholic's programs was disallowing a particular view on a permissible topic (viewpoint discrimination -- unconstitutional) or disallowing any view on a particular topic (content discrimination -- constitutional). Her conclusion was that the University was engaged in the latter. The Constitution allows it to decide not to fund purely religious activity. It gets around any problem in defining the scope of that restriction by allowing the student organizations themselves to identify purely religious activities.