Amicus Curiae Brief — Walsh v. Badger Catholic, Inc.

Supreme Court, U.S.

FILED

3 | () FEB 1- 20%

| OFFICE OF THE CLERK

No. 10-731

IN THE

Supreme Court of the Anited States

DAVID G. WALSH, ET AL.,

Petitioners,

v.

BADGER CATHOLIC, INC., ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR AMICI CURIAE

AMERICAN COUNCIL ON EDUCATION

AND SIX OTHER HIGHER EDUCATION

ORGANIZATIONS IN SUPPORT OF PETITIONERS

ADA MELOY H. CHRISTOPHER BARTOLOMUCCI

General Counsel Counsel of Record

AMERICAN COUNCIL HOGAN LOVELLS US LLP

ON EDUCATION 555 Thirteenth Street, NW

One DuPont Circle, NW Washington, DC 20004

Washington, DC 20036 christopher.bartolomucci

(202) 939-9361 @hoganlovells.com

(202) 637-5810

Counsel for Amici Curiae

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20002

AMICI ON THIS BRIEF

American Council on Education

American Association of Community Colleges

American Association of State Colleges and

Universities

American Dental Education Association

Association of American Universities

Association of Public and Land-grant Universities

NASPA—Student Affairs Administrators in Higher

Education

TABLE OF CONTENTS

Page

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STATEMENT OF INTEREST ................2...csccsececceecess ]

Eee EINE coaceccuusacneuseicnsussaeceviadedecuscaencsmnereisasdrintee 4

SUMMARY OF ARGUMENT ......................ccccccceccseees 5

SITET “ccs dd ncahacedcaun bens biousentmmnvacinsetenensaninsenedaads 6

I. WHETHER PUBLIC UNIVERSITIES

MUST FUND RELIGIOUS WORSHIP,

INSTRUCTION, AND PROSELYTIZA-

TION BY REGISTERED STUDENT

ORGANIZATIONS IS AN ISSUE OF

GREAT IMPORTANCE TO HIGHER

ECE ST A NE AERC TOTES 6

Il. FEDERAL LAW DRAWS THE SAME

LINE DRAWN BY THE UNIVERSITY

aes auminasaueeeusins 12

Ill. THE FEDERAL CIRCUITS ARE

DIVIDED ON THE QUESTION

oo accsvenleaneasens 15

IV. THE SEVENTH CIRCUIT MISREAD

THIS COURT'S PRECEDENTG...............000..... 20

8 Rs | ARR T Wen Oe ee am Cen Ee SA NTR Ae a 24

i

TABLE OF AUTHORITIES

Page

Cases:

Board of Ed. of Indep. School Dist. No.

92 of Pottawatomie County v. Earls,

536 U.S. 822 (2002)....... seisnd Mc aaaaeidesaeusaseeucenenins 7

Board of Regents of Univ. of Wis. Sys. v.

Southworth, 529 U.S. 217 (2000)............ 4,7,9

Braxton v. United States, 500 U.S. 344

a asihencens 15

Bronx Household of Faith v. Board of

Ed. of City of N.Y., 492 F.3d 89 (2d

Gt. FREER EE RU RANE ONLI, OS TO RO 15

Bronx Household of Faith v. Community

Sch. Dist. No. 10, 127 F.3d 207 (2d

I a aa a ena idence laan ec aeesias .. 18, 19

Campbell v. St. Tammany’s School Bad.,

206 F.3d 482 (5th Cir. 2000), reh’g

denied, 231 F.3d 937 (5th Cir. 2000),

GVR‘d, 533 U.S. 913 (2001)..................... 16, 17

Campbell v. St. Tammany’s School Bd.

300 F.3d 626 (6th Cir. BOOZ) ......cccccscossscccesess. 16

Campbell v. St. Tammany’s School Bad.,

2003 WL 21783317 (E.D. La. July 30,

en re ae ees 16, 17

Christian Legal Society Chapter of Univ.

of Cal., Hastings College of Law v.

Martinez, 130 S. Ct. 2971 (2010)........... passim

lll

TABLE OF AUTHORITIES—Continued

Page

Church of the Rock v. City of Albuquer-

que, 84 F.3d 1273 (10th Cir.), cert.

denied, 519 U.S. 949 (1996)..................... 15, 19

Faith Center Church Evangelistic Minis-

tries v. Glover, 480 F.3d 891 (9th Cir.

RR ROURRENU oD RPE TEH OTE eee eS 15

Good News Club v. Milford Central

pehootl, 633 U.S. 96 C001 )................0...0.0006-052 17

Lamb’s Chapel v. Center Moriches Union

Free School Dist., 508 U.S. 384 (1993).......... 17

Locke v. Davey, 540 U.S. 712 (2004)............. 11. 2

Rosenberger v. Rector & Visitors of Univ.

of Va., 515 U.S. 819 (1995)................ 14, 21, 24

Widmar v. Vincent, 454 U.S. 263 (1981)...... 7 Zi

Statutory Provisions:

ee ee oa a ee 14

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Be eosin aeceicsnc coeccemsirecness eves 14

20 U.S.C. § 113 2i(C).e-cccccscceccsceseseseseeesseseseseeeeseeee 14

LE a D> 2 | See Oa een 14

Bee Oe ce cena a eesecareorverresncs 14

42 U.S.C. § 3027(a)(14)(A)(iV) .....cccccccccceccseeeeceeee. 20

1V

TABLE OF AUTHORITIES—Continued

Page

Executive Branch Materials:

Equal Protection of the Laws for Faith-

Based and Community Organiza-

tions, Exec. Order No. 13279, 67 Fed.

PN? 0 ee IID ie ccvsssscuncycccasecviansaeehenduaiataes 13

Eon ok |” SERRE URC Saar eRe no 13

Be Or he ND sin sssincs cottanceccscnupapevcecents 14

ee ee RED orci ns ncs tetera cccccnccsevasensesses 14

G8 Fed. Hew. G6416 (2002). ...n.-.n..-...ecccecesccsnsces., 14

eg A Wl 1) 14

STATEMENT OF INTEREST!

The American Council on Education, The American

Association of Community Colleges, The American

Association of State Colleges and Universities, The

American Dental Education Association, The Asso-

ciation of American Universities, The Association of

Public and Land-grant Universities, and NASPA—

Student Affairs Administrators in Higher Education

submit this brief as amici curiae in support of peti-

tioners and the grant of certiorari.

Founded in 1918, The American Council on Educa-

tion (ACE) is the nation’s unifying voice for higher

education. Its more than 1,800 members include a

substantial majority of colleges and universities in

the United States. ACE represents all sectors of

American higher education—public and private,

large and small, denominational and nondenomina-

tional. It serves as a consensus leader on key issues

and seeks to influence public policy through advo-

cacy, research, and program initiatives.

The American Association of Community Colleges

(AACC) is the primary advocacy organization for the

nation’s community colleges at the national level.

The AACC works closely with directors of state

offices to inform and affect state policy. Founded in

1920, the AACC represents nearly 1,200 two-year,

Counsel] for amici certify that no part of this bnef was

authored by counsel for any party, and no person or entity other

than amici or their members made a monetary contribution to

the preparation or submission of the brief. Counsel of record for

the parties received timely notice of amici’s intent to file the

brief and gave consent. Copies of the consent letters have been

filed with the Clerk.

associate degree-granting institutions and more than

11 million students.

The American Association of State Colleges and

Universities (AASCU) represents more than 400

public colleges, universities, and systems of higher

education throughout the United States and its

territories. AASCU schools enroll more than three

million students, which is roughly 55 percent of the

enrollment at all public four-year institutions.

The American Dental Education Association

(ADEA) is the voice of dental education. Its mem-

bers include all U.S. dental institutions and many

allied and postdoctoral dental education programs,

corporations, faculty, and students. The mission of

ADEA is to lead the dental education community to

address contemporary issues influencing education,

research, and the delivery of oral health care for the

health of the public. ADEA’s activities encompass a

wide range of research, advocacy, faculty develop-

ment, meetings, and communications, including the

Journal of Dental Education.

The Association of American Universities (AAU) is

an organization of leading research universities

devoted to maintaining a strong system of academic

research and education. It consists of 60 U.S. uni-

versities and two Canadian universities, divided

about evenly between public and private. AAU

member universities are on the leading edge of

innovation, scholarship, and problem-solving, con-

tributing significant value to the nation’s economy,

security, and culture.

The Association of Public and Land-grant Universi-

ties (A:P+L:U) is an association of 186 public re-

search universities and 27 state university systems,

including 74 land-grant institutions. Founded in

1887, and formerly known as the National Associa-

tion of State Universities and Land-Grant Colleges,

A:P:L:U member campuses enroll more than 3.5

million undergraduate and 1.1 million graduate

students, employ more than 645,000 faculty mem-

bers, and conduct nearly two-thirds of all academic

research, totaling more than $34 billion annually.

As the nation’s oldest higher education association,

A:P:L:U is dedicated to excellence in learning,

discovery and engagement.

NASPA—Student Affairs Administrators in Higher

Education (NASPA) is the leading voice for student

affairs administration, policy, and practice. With

more than 11,000 members at 1,400 campuses in 29

countries, NASPA is the foremost professional asso-

ciation for student affairs administrators, faculty,

and graduate and undergraduate students. NASPA

members are committed to serving college students

by embracing the core values of diversity, learning,

integrity, collaboration, access, service, fellowship,

and the spirit of inquiry

ACE and the other higher education organizations

on this brief filed an amici brief in support of the

respondent officials of the Hastings College of Law in

Christian Legal Society Chapter of University of

California, Hastings College of Law v. Martinez, 130

S. Ct. 2971 (2010), a case that also raised First

Amendment issues relating to a Registered Student

Organization program (RSO program).

STATEMENT

Like many colleges and universities across the

country, the University of Wisconsin (the University)

has a program under which funds derived from

mandatory student activity fees are available to

reimburse registered student organizations (RSOs)

for the cost of approved extracurricular activities,

including speech activities protected by the First

Amendment. See Board of Regents of Univ. of Wis.

Sys. v. Southworth, 529 U.S. 217 (2000) (upholding

the University’s RSO program against a_ First

Amendment challenge brought by students who

objected to some of the speech funded by their activ-

ity fees).

Badger Catholic, Inc. is an RSO at the University,

and most of its activities are reimbursed under the

University’s RSO program. See Pet. 6 (noting that

the University approved 86% of Badger Catholic’s

funding request in 2007-2008). But the University

refused to reimburse Badger Catholic to the extent

that its activities constituted “worship, proselytizing,

and religious instruction’—in other words, “speech

that constitutes the practice of religion.” Pet. App.

3a. The specific activities for which Badger Catholic

sought, but the University denied, funding included:

e Summer training camps with scheduled Catho-

lic masses;

e A mentoring program in which Catholic priests

and nuns would offer guidance or prayer if re-

quested by a student;

e A program under which Catholic nuns from

Italy would spend the school year in Madison

and assist students in discerning whether they

are called to the priesthood; and

e The distribution of Rosary booklets.

Pet. App. 9la-94a.

There is no dispute that the activities at issue do,

in fact, constitute “worship, proselytizing, and reli-

gious instruction”—for that is how Badger Catholic

itself classifies them. See Pet. App. 24a (the Univer-

sity “asks the student groups to self-identify those

activities that are worship, proselytizing, and prayer

and then it only declines to fund such activities”).

SUMMARY OF ARGUMENT

Whether a public university must fund the reli-

gious worship, instruction, and proselytization of its

RSOs is a very important question confronting

American higher education following the decision

below. Extracurricular programs, including RSO

programs, are an important part of the educational

process. Among its other benefits, involvement in

RSOs gives students the opportunity to discuss

issues and express viewpoints on matters of concern.

But a university is not required to fund all manner of

student speech. An RSO program is a limited public

forum, and a university may limit access to such a

forum to those student groups and student activities

that further the university's educational mission, so

long as the access limitations are reasonable and

viewpoint neutral. In amuicis view, the First

Amendment permits, but does not require, a univer-

sity te fund religious worship, instruction, and

proselytization under an RSO program.

The University of Wisconsin has drawn a line be-

tween, one the one hand, religions worship, instruc-

tion, and proselytization and, on the other hand,

speech about religion or speech from a religious

perspective. This line is also embedded in federal

law, including in numerous Acts of Congress, in an

Executive Order issued by President George W. Bush

concerning the constitutionai rights of faith-based

organizations, and in regulations promulgated by the

Department of Education and other agencies.

Several federal circuit courts—including the Sec-

ond Circuit, Fifth Circuit, Ninth Circuit, and Tenth

Circuit—have confronted the question presented and

reached different conclusions.

The Seventh Circuit misread and misapplied this

Court’s precedents. This Court’s cases do not compel

the conclusion that the University must fund the

religious worship, instruction, and proselytization

activities of Badger Catholic.

ARGUMENT

I. WHETHER PUBLIC UNIVERSITIES

MUST FUND RELIGIOUS WORSHIP,

INSTRUCTION, AND PROSELYTIZATION

BY REGISTERED STUDENT

ORGANIZATIONS IS AN ISSUE OF

GREAT IMPORTANCE TO HIGHER

EDUCATION.

The question presented in this case is whether the

First Amendment requires a public university to

fund religious worship, instruction, and proselytiza-

tion by RSOs seeking funding for such activities.

This is an extremely important issue facing hun-

dreds of public institutions of higher education in the

wake of the Seventh Circuit’s decision.

A primary mission of American colleges and uni-

versities is, of course, the education of their student

bodies. And “extracurricular programs are, today,

essential parts of the educational process.” Christian

Legal Society Chapter of Univ. of Cal., Hastings

College of Law v. Martinez, 130 S. Ct. 2971, 2989

(2010). Indeed, educators and institutions long “have

recognized that the process of learning occurs both

formally in a classroom setting and informally out-

side of it. Students may be shaped as profoundly by

their peers as by their teachers.” Jd. at 2999 (Ken-

nedy, J., concurring).

The opportunity to participate in student groups is

an important component of extracurricular learning.

See id. at 2989 (“involvement in student groups is ‘a

significant contributor to the breadth and quality of

the educational experience’ ”) (quoting Board of Ed.

of Indep. School Dist. No. 92 of Pottawatomie County

v. Earls, 536 U.S. 822, 831 n.4 (2002)). Programs

that support and encourage the formation of RSOs

“facilitate interactions between students, enabling

them to explore new points of view, to develop inter-

ests and talents, and to nurture a growing sense of

self.” Jd. at 2999 (Kennedy, J., concurring). As this

Court observed in the context the University of

Wisconsin’s RSO program, a university “may deter-

mine that its mission is well served if students have

the means to engage in dynamic discussion of phi-

losophical, religious, scientific, social, and political

subjects in their extracurricular campus life outside

the lecture hall.” Southworth, 529 U.S. at 233.

Many RSOs are formed in order to promote on-

campus discussion of particular subjects or to allow

students collectively to express a specific viewpoint.

And is settled law that “the First Amendment gener-

ally precludes public universities from denying

student organizations access to school-sponsored

forums because of the groups’ viewpoints.” Christian

Legal Society, 130 S. Ct. 2978.

But the First Amendment does not require a uni-

versity to support student speech of every sort under

its RSO program. This Court has recognized that an

RSO program is a limited public forum. See td. at

2984 n.12. And a “defining characteristic of limited

public forums” is that the forum creator may “reserve

them for certain groups.” Id. at 2985 (brackets and

quotation marks omitted). Thus, a university may

restrict access to its RSO forum so long as its restric-

tions are both “reasonable and viewpoint neutral.”

Id. at 2984. It need not fund all expressive activities

covered by the First Amendment. Flag burning is to

some degree a protected activity; se is nude dancing.

But a university need not fund a flag burning club or

a nude dancing society if doing so would not advance

the purposes of its RSO program or its educational

mission, so long as the denial of recognition or fund-

ing is not based on the viewpoint of the would-be

RSOs.

In designing an RSO program, a university has

latitude in deciding what student groups and what

speech activities will be supported and funded in

order to further the institution’s educational mission.

It may “confine a speech forum to the limited and

legitimate public purposes for which it was created.”

Id. at 2986 (brackets and quotation marks omitted).

See id. at 2989 n.17 (“a university has the authority

to set the boundaries of a limited public forum”).

Deciding “what goals a student-organization forum

ought to serve fall within the discretion of school

administrators and educators.” Jd. at 2989 n.16. See

also Southworth, 529 U.S. at 235 (noting the “discre-

tion universities possess in deciding matters relating

to their educational mission”).

A wide variety of student groups have applied for

and obtained RSO status at the University of Wis-

consin. In Southworth, this Court observed that

RSOs at the University “included the Future Finan-

cial Gurus of America; the International Socialist

Organization; the College Democrats; the College

Republicans; and the American Civil Liberties Union

- Campus Chapter.” 529 U.S. at 223. “As one would

expect, the expressive activities undertaken by RSOs

are diverse in range and content, from displaying

posters and circulating newspapers throughout the

campus, to hosting campus debates and guest speak-

ers, and to what can best be described as political

lobbying.” Id.

The University also strongly supports speech by

religious RSOs. Badger Catholic is one such organi-

zation, and the University in past years has funded

most of its activities. The University has drawn a

line, however, when it comes to the actual practice of

religion. In its pedagogical judgment, it decided that

religious worship and proselytization differed from

speech about religion or speech coming from a reli-

gious viewpoint.

The University of Wisconsin is not alone in this

regard. Many other public universities have drawn

the same line or a similar line. For example:

10

“Organizations will not be provided funding to

support religious worship or religious proselytiz-

ing.” Virginia Polytechnic Institute and State

University, Student Activity Fee Allocation Poli-

cies & Procedures for the Student Budget Board &

Registered Student Organization Budget Board 8

(Oct. 2007);

“Funds will not be provided to student organiza-

tions for activities to pay for materials that in any

way: *** 2. financially support lobbying activi-

ties or religious worship services.” Old Dominion

University, Student Organization Handbook 16

(2010-2011);

“Activities typically funded through the SBA

[Student Bar Association]/Student Assembly in-

clude: * * * 9. Peer and Public Education Activi-

ties, to support the promotion of knowledge and

information on subjects that are not politically

partisan or involve religious worship or devo-

tional activities.” William & Mary Law School,

Registered Student Organization Handbook 14

(2009-2010)) (footnote omitted).

“Items that will not be funded * * * 15. Any reli-

gious ceremony or worship service, except when

such activity is for educational purposes.” Penn-

sylvania State University, UPAC Handbook 6

(July 27, 2010);

“University funds cannot be used to provide direct

support of religious activities, worship or prosely-

tizing.” University of Michigan-Flint, Student In-

volvement Handbook 57 (2010) (emphasis in

original);

11

“Proselytizing is expressly prohibited at any

ASCSU [Associated Students of Colorado State

University] funded program * * *.” Colorado

State University, The Source: Registered Student

Organizations Resource Guide 33 (2009-2010).2

In contrast, at least some public institutions do

fund the religious worship and instruction activities

of their RSOs. See University of Washington Ta-

coma, Registered Student Organization Handbook 16

(2010-2011) (““SAB-CEF [Student Activities Board-

Campus Event Fund] funds can be used to support

the activities and events of a religious or spiritual

registered student organization, including activities

and events that involve religious worship, exercise,

and instruction.”). This is a choice that colleges and

universities should be allowed to make in the exer-

cise of their educational judgment and academic

freedom.

Amici believe that the Constitution permits, but

does not require, public institutions to fund religious

worship, instruction, and proselytization as part of

an RSO program. Cf. Locke v. Davey, 540 U.S. 712

(2004) (discussed infra at 22-23). Colleges and

universities should be free to decide whether funding

the practice of religion by a student group supports

their pedagogical mission and the purposes of their

2 The same source also provides (at pg. 35). “It is expressly

prohibited to use funds for any activities prohibited by Federal

or State law, including, but not limited to, the following: * * *

b. The Constitution of Colorado, Article IX, Section 7, prohibits

the expenditure of State funds for any sectarian purpose. An

activity with a sectarian purpose would include, for example,

the activities of worship, devotion, prayer, meditation, or a

religious service.”

12

RSO program. Under the decision below, a univer-

sity with an RSO program like the one at the Uni-

versity of Wisconsin will be required to fund worship

and proselytization by student groups—at least if

that university sits within the Seventh Circuit.

Many administrators of universities outside the

Seventh Circuit face the choice between changing

their RSO programs or inviting lawsuits by student

groups.

Notably, Badger Catholic sought to collect money

damages from the University of Wisconsin adminis-

trators that it sued. The District Court and the

Seventh Circuit held that University officials were

entitled to qualified immunity because the law was

not clear at the time Badger Catholic filed suit. See

Pet. App. 13a, 64a-66a. But, as the District Court

warned, “in future cases University officials will no

be entitled to qualified immunity, and so an injur«

student will be able to obtain monetary relief.” Pet.

App. 10la. This Court should grant the petition and

resolve the question presented so that university

administrators will know whether they are constitu-

tionally required to fund the practice of religion by

recognized student groups.

Il. FEDERAL LAW DRAWS THE SAME LINE

DRAWN BY THE UNIVERSITY OF

WISCONSIN.

The line drawn by the University in the context of

its RSO program between religious worship, instruc-

tion, and proselytization, on the one hand, and other

speech activities (including speech about religion or

speech from a religious perspective), on the other

hand, is a line that has been drawn in federal law by

the President, the Congress, and federal agencies.

13

In 2002, the President George W. Bush issued an

Executive Order addressing the constitutional rights

of religious organizations that participate in certain

programs funded by the federal government. See

Equal Protection of the Laws for Faith-Based and

Community Organizations, Exec. Order No. 13279,

67 Fed. Reg. 77141 (2002). This presidential direc-

tive declared that such religious organizations are

entitled to express their views so long as federal

funds are not used for “inherently religious activi-

ties’—1.e., religious worship, instruction, and prose-

lytization. The Order provides that a “faith-based

organization that applies for or participates in a

social service program supported with Federal finan-

cial assistance” may “continue to carry out its mis-

sion,” including the “expression of its religious be-

liefs, provided that it does not use direct Federal

financial assistance to support any inherently reli-

gious activities, such as worship, religious instruc-

tion, or proselytization.” Id. § 3(f) (emphasis added).

The Faith-Based Order expressly finds that this

funding restriction is “[c]onsistent with the Free

Exercise Clause and the Free Speech Clause of the

Constitution.” Jd. The Department of Justice has

adopted regulations closely tracking the language of

Executive Order 13279. See 28 C.F.R. § 38.1(c)

(religious organizations participating in DOJ-funded

programs or services may not use direct financial

assistance from DOJ “to support any inherently

religious activities, such as worship, religious in-

struction, or proselytization’).

Similarly, Department of Education (ED) regula-

tions provide that an organization that receives a

grant under an ED program, or a subgrant from a

State under a State-administered ED program, may

not use its grant or subgrant to pay for “[r]Jeligious

worship, instruction, or proselytization.” 34 C.F-.R.

§ 75.532(a)(1); td. § 76.532(a)(1). See also 69 Fed.

Reg. 31708, 31712 (2004) (Organizations that re-

ceive direct Department funds may not use these

funds for inherently religious activities.”). ED has

explained that these conditions on the use of federal

funds do not infringe religious liberty:

The restrictions on the use of grants and sub-

grants for inherently religious activities do not

prohibit faith-based organizations from engaging

in inherently religious activities. The restrictions

only prohibit such funds from being used to sup-

port these activities. * * * Faith-based organiza-

tions, like other private organizations, must use

the Federal funds for the purpose of the applica-

ble program. [68 Fed. Reg. 56418, 56419 (2003).|

Likewise, numerous Acts of Congress dealing with

the funding of education deny funding for religious

worship, instruction, or proselytization. See, e.g., 20

U.S.C. § 7885 (“Nothing contained in this chapter

shall be construed to authorize the making of any

payment under this chapter [to private schools] for

religious worship or instruction.”); see also Pet. 35

n.23 (listing similar federal statutes); Rosenberger v.

Rector & Visitors of Univ. of Va., 515 U.S. 819, 885

n.9 (1995) (Souter, J., dissenting) (observing that

“Congress * * * routinely excludes religious activities

from general funding programs.”) (citing, inter alta,

20 U.S.C. § 1062(b), 20 U.S.C. § 1069c, 20 U.S.C.

§ 1132c-3(c), 20 U.S.C. § 1132i(c), and 20 U.S.C.

§ 1213d)).

In sum, the line drawn by the University in its

RSO funding program is identical to the line drawn

by the Executive Branch and Congress. RSOs at the

University may receive University funds and express

their views, but such funds may not be used for

worship, proselytization, or religious instruction,

which are inherently religious activities. This is a

line that the President, DOJ, and ED have found to

be constitutional in the context of federal funding

programs. Absent review by this Court, the Seventh

Circuit’s decision will jeopardize the federal statutes

and regulations that draw this same line. See infra

at 19-20 (discussing the nullification of the line

drawn in the Older Americans Act by the Tenth

Circuit in Church of the Rock v. City of Albuquerque,

84 F.3d 1273 (10th Cir.), cert. dented, 519 U.S. 949

(1996)).

lll. THE FEDERAL CIRCUITS ARE DIVIDED

ON THE QUESTION PRESENTED.

The Petition for Certiorari identifies federal appel-

late decisions from the Second Circuit and Ninth

Circuit that conflict with the decision below. See Pet.

20-26 (discussing Faith Center Church Evangelistic

Ministries v. Glover, 480 F.3d 891 (9th Cir. 2007),

and Bronx Household of Faith v. Board of Ed. of City

of N.Y., 492 F.3d 89 (2d Cir. 2007)). This inter-

circuit conflict provides a powerful reason for this

Court to grant review in this case. See Braxton v.

United States, 500 U.S. 344, 347 (1991) (“A principal

purpose for which we use our certiorari jurisdiction

** * is to resolve conflicts among the United States

courts of appeals and state courts ***.”). Three

other circuit court cases further demonstrate the

conflict and confusion in the lower courts over the

issue presented for review.

a. In 2000, the Fifth Circuit upheld a school dis-

16

trict policy that permitted outside groups to use

school facilities to discuss religious material, but did

not permit such groups to engage in religious wor-

ship or religious instruction in those facilities. See

Campbell v. St. Tammany’s School Bd., 206 F.3d 482

(5th Cir.), reh’g denied, 231 F.3d 937 (5th Cir. 2000),

GVR‘d, 533 U.S. 913 (2001), on remand, 300 F.3d 526

(5th Cir. 2002), on remand, 2003 WL 21783317 (E.D.

La. July 30, 2003). Campbell involved a Louisiana

school district’s building use policy, which permitted

after hours use of school facilities for civic, recrea-

tional, or entertainment purposes, but not for (1)

partisan political activities, (2) for-profit fundraising,

or (3) “religious services or religious instruction.”

206 F.3d at 484. Although the policy did not allow

religious services or instruction within schooi facili-

ties, it expressly permitted the use of facilities for the

purpose of “discussing religious material or material

which contains a religious viewpoint.” 231 F.3d at

943. Thus, much lke the University’s approach

here, the Louisiana school district policy permitted

within its forum speech about religion and speech

from a religious perspective, but did not permit the

actual practice of religion within the forum.

The school district denied the plaintiffs’ request to

use school facilities for a “prayer meeting” at which

the they planned to “worship the Lord in prayer and

music” and “engage in religious and Biblical instruc-

tion.” 206 F.3d at 485. The plaintiffs brought a First

Amendment challenge to the school district’s policy,

but the Fifth Circuit upheld the policy. The court

held that the school district had created a “limited

public forum.” 231 F.3d at 941. It also held that the

policy was viewpoint neutral, explaining that the

policy excludes “religious activities but does not

17

forbid speakers on general topics with a religious

perspective—a distinction that viewpoint neutrality

permits.” 206 F.3d at 487. “The policy’s express

tolerance of discussion from a religious viewpoint

rebuts any inference of viewpoint discrimination.”

231 F.3d at 943.

Although the decision of the Fifth Circuit panel

was unanimous, the Campbell case sharply divided

the court as a whole. Five Fifth Circuit judges

dissented from the denial of rehearing en banc. The

plaintiffs in Campbell filed a petition for certiorari,

and this Court granted the writ, vacated the judg-

ment, and remanded for reconsideration in light of

Good News Club v. Milford Central School, 533 U.S.

98 (2001). The Fifth Circuit in turn remanded to the

District Court. In a concurring opinion, one of the

panel members expressed the view that there was a

“significant” difference between Campbell and Good

News Club. 300 F.3d at 528 (Gibson, J., concurring).

Specifically, in Good News Club the decision to deny

access to the forum to a religious speaker was “based

on the applicant’s viewpoint, rather than the subject

matter presented.” Jd. (emphasis in original).

On remand, the District Court struggled mightily.

It found that Campbell was not controlled by this

Court’s decisions in Good News Club, Rosenberger,

and Lamb’s Chapel v. Center Moriches Union Free

School Dist., 508 U.S. 384 (1993). See 2003 WL

21783317, at *8 n.12 (“The prior cases are distin-

guishable”). It recognized that “[t]he Supreme Court

has not held that a religious service or religious

worship may not be excluded from a limited forum.”

Id. at *8. Nevertheless, relying on what it called “the

cryptic in dicta fourth footnote of Good News,” the

18

District Court ruled for the plaintiffs on the ground

that “Campbell proposed what primarily was a

religious service—a ‘prayer meeting, however, it was

not merely a religious service. The proposed meeting

included a discussion of family and political issues,

from a legally protected religious viewpoint.” Jd. at.

*9 (emphases in original). The court so held while

recognizing that it “is difficult to imagine any reli-

gious service, no matter how sectarian or nontradi-

tional” that is “merely” a religious service. Jd. The

District Court’s decision on remand was not appealed

to the Fifth Circuit.

b. In Full Gospel Tabernacle v. Community School

District 27, 164 F.3d 829 (2d Cir. 1999), affirming

878 F. Supp. 214 (S.D.N.Y. 1997), a church and its

pastor sought access to after school hours to a New

York public school to conduct religious worship

services. The Board of Education denied the re-

quested access based on state law and Board policy

prohibiting the use of school facilities for such pur-

poses. The District Court and the Second Circuit

rejected the plaintiffs’ First Amendment challenge.

The District Court concluded that the school facili-

ties were a “limited public forum,” 878 F. Supp. at

220, and that “the exclusion of religious worship

services is reasonable in light of the purposes served

by the forum and viewpoint neutral,” id. at 224

(citing Bronx Household of Faith v. Community Sch.

Dist. No. 10, 127 F.3d 207 (2d Cir. 1997)). The

Second Circuit affirmed “substantially for the rea-

3 Although the Fifth Circuit’s judgment was vacated to allow

that court to consider Good News Club, the Fifth Circuit

opinions, the en banc vote, and the proceedings on remand

vividly illustrate how the question presented has divided the

federal judiciary.

19

sons” articulated by the District Court. 164 F.3d at

830. Thus, the decision below conflicts with the

Second Circuit’s decision in Full Gospel Tabernacle

as well as that court’s decision in Bronx Household of

Faith.

c. The inter-circuit split also includes the Tenth

Circuit’s decision in Church of the Rock v. City of

Albuquerque, 84 F.3d 1273 (10th Cir.), cert. denied,

519 U.S. 949 (1996), which aligns with the decision

below. In Church of the Rock, a church pastor sought

to use a Senior Center owned and operated by the

City of Albuquerque “to show a two-hour film enti-

tled Jesus. The film recounts the life of Jesus Christ

as described in the Gospel of Luke.” 84 F.3d at 1277.

At the end of the film, the narrator “invites viewers

to adopt the Christian religion and to join him in a

short prayer.” /d. The pastor also sought permission

“to give away giant-print New Testaments to persons

attending the film.” Jd. City policy permitted groups

to use Senior Centers “for classes and other activities

if the subject matter is ‘of interest to senior citi-

zens.” Id. The pastor's request, however, was

denied on the ground that “City policy prohibited the

use of Senior Centers ‘for sectarian instruction or as

a place for religious worship.’” Id.

After classifying the Senior Center as a “designated

public forum,” 84 F.3d at 1278, the Tenth Circuit

held that the City’s policy was “a viewpoint-based

restriction on speech” in violation of the First

Amendment. /d. at 1279. The Tenth Circuit stated

that “the City had already opened the doors of its

Senior Centers to presentatior: about religion, such

as The Bible as Literature and Myths and Stories

About the Millennium” and therefore the City had to

20

allow the showing of a film “advocating the adoption

of the Christian faith.” Jd. The Tenth Circuit also

held that, “even if the City had not previously opened

the Senior Centers to presentations on religious

subjects, its policy would still amount to viewpoint

discrimination” because, in the court’s view, “[a]ny

prohibition of sectarian instruction where other

instruction is permitted is inherently non-neutral

with respect to viewpoint.” Id.

The Tenth Circuit rejected the City’s argument

that its policy was necessary to comply with a federal

statute, the Older Americans Act, “which requires as

a condition for receiving federal funding assurances

that a ‘facility will not be used and is not intended to

be used for sectarian instruction or as a place for

religious worship.” 84 F.3d at 1280 (quoting 42

U.S.C. § 3027(a)(14)(A)(iv)). Although the Tenth

Circuit recognized that the City’s policy “mirrors the

language of the Older Americans Act,” it ruled that

“compliance with the Older Americans Act does not

justify this viewpoint-based restriction on expres-

sion.” Jd. Thus, the court held unconstitutional the

line drawn by Congress between “sectarian instruc-

tion” and “religious worship” versus other expressive

activities.

IV. THE SEVENTH CIRCUIT MISREAD THIS

COURT’S PRECEDENTS.

The key precedents of this Court that the Seventh

Circuit consulted do not compel the Circuit’s conclu-

sion that the University must fund Badger Catholic’s

religious worship, instruction, and proselytization.

The Seventh Circuit primarily relied upon Widmar

v. Vincent, 454 U.S. 263 (1981). See Pet. App. 4a-5a.

In Widmar, this Court held that the First Amend-

21

ment required the University of Missouri at Kansas

City (UMKC) to allow a registered religious student

group called Cornerstone to use classroom space and

the student center for its meetings, which included

such “religious worship” activities as “prayer, hymns,

Bible commentary, and discussion of religious views

and experiences.” 454 U.S. at 265 & n.2. The Wid-

mar Court found that UMKC had “created a forum

generally open for use by students,” id. at 267, and,

accordingly, applied strict scrutiny. See id. at 269-

270. But this Court’s jurisprudence in this area has

developed in the 20 years since Widmar was decided,

and the law is now clear that an RSO program is a

limited public forum and is not subject to strict

scrutiny. Instead, a university may place reason-

able, viewpoint-neutral conditions on access to an

RSO forum. See, e.g., Christian Legal Society, 130

S. Ct. at 2984.

The Seventh Circuit also relied upon Rosenberger,

see Pet. App. 5a-6a, but that case did not involve the

same sort of activities for which Badger Catholic

seeks funding. The student group in Rosenberger,

Wide Awake Productions, sought funding for a

student newspaper that presented a Christian per-

spective on matters of interest to University of

Virginia (UVA) students. See 515 U.S. at 826. Wide

Awake Productions was not considered a “religious

organization” under UVA guidelines, which defined

as “an organization whose purpose is to practice a

devotion to an acknowledged ultimate reality or

deity.” Id. UVA denied funding for the newspaper

because of its religious viewpoint —that it “promoted

or manifested a particular belief in or about a deity

or an ultimate reality” (id. at 827, brackets omit-

ted)—not because it constituted the practice of

22

religion. As the District Court recognized in Badger,

“Rosenberger is distinguishable because it involved

university funding of a much narrower range of

student activities” than “the wide-ranging and highly

sectarian funding requests at issue in the present

case.” Pet. App. 89a, 95a.

The Seventh Circuit discussed, but did not follow,

Locke v. Davey, 540 U.S. 712 (2004). See Pet. App.

8a-9a. In Locke, this Court upheld a scholarship

program enacted by the State of Washington for

postsecondary education that barred recipients from

using the scholarship to pursue a degree in devo-

tional theology. This Court rejected a Free Exercise

Clause challenge to the theology exclusion. The

Court also held that the Establishment Clause did

not compel the exclusion. Thus, the State could, but

was not required to, extend the scholarship program

to theology degrees. See 540 U.S. at 719 (“[T]here

are some state actions permitted by the Establish-

ment Clause but not required by the Free Exercise

Clause.”).

The Seventh Circuit rejected the University’s ar-

gument “that it has made the sort of choice that

Locke approved.” Pet. App. 9a. The Circuit said that

the scholarship program in Locke “did not evince

hostility to religion,” id., implying that the Univer-

sity’s decisions do evince such hostility. But the

University is not hostile toward Badger Catholic’s

religion: the University has registered Badger

Catholic as an RSO and funds most of its activities.

“The University generally approved [Badger Catho-

lic]’s 2007-08 budget,” and funds many of Badger

Catholic’s activities, “including large and small group

discussions, educational and service offerings, thea-

23

ter and choral activities, and student orientation and

welcoming activities.” Pet. App. 36a, 37a. The

University has simply “drawn a line between reli-

gious speech and religious expression amounting to

worship, proselytizing and sectarian instruction.” Id.

at 1132. The District Court, notably, did not believe

that the University had discriminated against

Badger Catholic’s viewpoint. “In fact, the University

funds a considerable amount of [Badger Catholic]’s

religious speech, which shows that the University is

not attempting to exclude religious viewpoints from

its forum” Id. at 57a. “Plaintiffs have identified no

topic on which the University has excluded religious

viewpoints.” Id. at 56a. See also id. at 96a n.6 (“the

University did not discriminate against [Badger

Catholic] because [Badger Catholic] intended to

present a Catholic or religious viewpoint’).

The Seventh Circuit also distinguished Locke on

the ground that that case involved “selective funding

as a permissible public choice, versus selective

funding as impermissible restriction on private

choice in a public forum.” Pet. App. 10a. The Sev-

enth Circuit said that Badger Catholic involved the

latter situation, and that “a university cannot shape

Badger Catholic’s message by selectively funding the

speech it approves, but not the speech it disapproves.

Id. But the Seventh Circuit seems not to have

appreciated the fact that a university may limit its

RSO forum to speech that advances the purposes for

which the forum was created, so long as any restric-

tions are reasonable in light of those purposes and

are viewpoint-neutral. See Christian Legal Society,

130 S. Ct. at 2984. “The necessities of confining a

forum to the limited and legitimate purposes for

which it was created may justify the State in reserv-

24

ing it for certain groups or for the discussion of

certain topics.” Rosenberger, 515 U.S. at 829. Fur-

thermore, universities are entitled to some deference

in these matters: “determinations of what consti-

tutes sound educational policy or what goals a stu-

dent-organization forum ought to serve fall within

the discretion of school administrations and educa-

tors.” Christian Legal Society, 130 S. Ct. at 2889

n.16. The Seventh Circuit gave no deference to the

University on this score.

CONCLUSION

The Petition for Certiorari should be granted.

Respectfully submitted,

ADA MELOY H. CHRISTOPHER BARTOLOMUCCI

General Counsei Counsel of Record

AMERICAN COUNCIL HOGAN LOVELLS US LLP

ON EDUCATION 555 Thirteenth Street, NW

One DuPont Circle, NW Washington, DC 20004

Washington, DC 20036 christopher.bartolomucci

(202) 939-9361 @hoganlovells.com

(202) 637-5810

Counsel for Amici Curiae