Viewpoint Discrimination by Public Universities: Student Religious Organizations and Violations of University Nondiscrimination Policies

One final case also supports the premise that a public university must recognize unpopular student religious organizations. In Board of Regents of the University of Wisconsin v. Southworth,197 the Court decided the legality of the fee public universities charge to fund their campus groups.198 While the Court concluded that the university's goal of facilitating "the free and open exchange of ideas by, and among, its students"199 justified charging students a mandatory student activity fee,200 the decision also required that the university ensure that student activity Hinds are available to diverse student groups, including religious ones,201 in a viewpoint-neutral manner.202

Southworth protects religious expression on campus by implicitly approving the practice of passing students' dollars through an arm of the state and back to quasi-private extracurricular student organizations.203 It also suggests that a public university must impartially fund organizations if it wants to charge an activity fee.204 A student religious organization that the university refuses to recognize could argue that the university has not comported with Southworth because, when nonrecognition or derecognition occurs, the university has based its funding decision on the group's viewpoint on religion and homosexuality. Once a public university stops funding student religious organizations (under a claim that they have violated the university's nondiscrimination policy), the university has violated the spirit of Southworth,205 by continuing to charge students the fee, yet failing to fund a wide range of organizations on a viewpoint-neutral basis.

Finally, it warrants noting that attacks on student religious organizations have not been based on state or federal law, but on independent university policy206 It is unlikely that a court would find that a university policy trumps the constitutionally guaranteed freedom of expressive association. Constitutional protections of freedom of association carry more weight vis-a-vis administrative policies than they would against legislatively-enacted laws, because public universities are not a coequal legislative branch of government.207 Because Massachusetts and New Jersey failed to show compelling interests in nondiscrimination through their legislatively-enacted laws,208 it is even more remote that a university could show that its mere policy goals constitute a compelling state interest in the face of an expressive organization's associational freedoms.209

C. Public Policy Considerations Also Preclude the Derecognition of Student Religious Organizations

What public policy benefits come from having student religious organizations at public universities? Like all people, students have a fundamental need for belonging and community involvement.210 While organizations in general help to satisfy this need, student organizations serve an especially important function for young adults away from home who seek to connect with groups of people with familiar values and beliefs.211 When students leave their families for their new lives at school, they often want to reestablish the sense of community that they enjoyed while at home.212 Religious groups provide some students with that basis for personal and community identity.213