October 22, 2004

Dr. Kent M. Syverson

Professor, Department of Geology

University of Wisconsin

Eau Claire, WI 54702

Dear Dr. Syverson:

Thank you for contacting the American Center for Law & Justice with your question regarding the proposed amendment to the University of Wisconsin-Eau Claire’s policies regarding student service learning, a mandatory program for all students attending the University.

As you know, the American Center for Law & Justice (“ACLJ”) is a not-for-profit, public interest law and educational group. Among other areas of constitutional law, our organization specializes in Free Speech and Establishment Clause jurisprudence. The ACLJ has directly participated in a number of significant Supreme Court cases, including McConnell v. FEC, 540 U.S. 93 (2003); Locke v. Davey, 540 U.S. 712 (2003); Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000); Hill v. Colorado, 530 U.S. 703 (2000); and Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997).

The proposed amendment to the University’s guidelines governing its service-learning activity requirement is as follows:

Please note: Religious instruction, religious proselytization, conducting religious services, or projects requiring a specific religious belief or affiliation are not acceptable as service-learning experiences, since they are generally viewed as constituting a violation of the Establishment Clause of the U.S. Constitution.

As an initial matter, “religious proselytization, conducting religious services, or projects requiring a specific religious belief or affiliation” does not, by itself, violate the Establishment Clause. To the contrary, Supreme Court case law is clear that religious instruction is constitutionally protected speech. See Widmar v. Vincent, 454 U.S. 263, 269 (1981) (“religious worship and discussion . . . are forms of speech and association protected by the First Amendment”) (and cases cited). See also Pierce v. Society of Sisters, 268 U.S. 510 (1925). “Private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression.” Capitol Square Review and Advisory Bd. v. Pinette, 514 U.S. 753, 760 (1995) (and cases cited).

Indeed, in Anglo-American history, at least, government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince. Accordingly, we have not excluded from free-speech protections religious proselytizing . . . or even acts of worship.

Id. (citations omitted). The Free Speech Clause therefore prohibits state-sponsored discrimination against religious speech, including worship and instruction. Id. at 761 (strict scrutiny applies where expression was rejected “precisely because its content was religious”). Indeed, such discrimination constitutes viewpoint discrimination. Good News Club v. Milford Central School, 533 U.S. 98, 107-12 (2001); Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 394 (1993); Rosenberger v. Rectors and Visitors of Univ. of Va., 515 U.S. 819, 832 (1995) (“discriminating against religious speech was discriminating on the basis of viewpoint”).

What, then, about a public university offering service hours for such religious activities? Would such a program violate the Establishment Clause? While the proposed amendment claims that such a program would violate the Constitution, not one case involving similar facts, supports this assertion.

The Supreme Court’s most recent case involving the Establishment Clause, Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (holding that Ohio’s school voucher program, would allows parents to use public funds to help send their children to private, religious schools, passes constitutional muster), succinctly states what this provision of the First Amendment prohibits: “[t]he Establishment Clause of the First Amendment, applied to the States through the Fourteenth Amendment, prevents a State from enacting laws that have the ‘purpose’ or ‘effect’ of advancing or inhibiting religion.” Id. at 648-49.

Permitting students to participate in community activities which include religious instruction — such as teaching Sunday school, for example — so that they might fulfill their mandatory service learning requirement simply does not constitute government advancement or endorsement of religion. It does not do so because the choice of the student to participate in the religious community service is the private choice of the student and the student alone — not the University’s. If the University actively encouraged students to participate in such religious-based programs, the result, of course, might be different. Where, however, the University takes a religion-neutral stance with respect to the types of community service students may engage in, the University is not violating the Establishment Clause, but complying with it. The fact that it is the student performing the community service involving religious instruction, and not employees of the University, makes all the legal difference, for it is the student who is speaking, not the University. As the Supreme Court has noted, governments must “respect[] the critical difference ‘between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.’” Rosenberger, 515 U.S. at 841 (emphasis supplied) (quoting Board of Education v. Mergens, 496 U.S. 226, 250 (1990)).

The fact that the service-learning program is mandatory for all students is legally irrelevant. Again, it is the student, not the University, who is directly participating in the religious instruction. For the University to recognize student community service which involves religious instruction as an acceptable way to help fulfill the service-learning requirement is different from endorsing the religious instruction itself. To recognize something is both legally and logically distinct from promoting or advancing it. Indeed, the Establishment Clause prohibits the government from establishing religion; it does not prohibit the government from recognizing it. As the Supreme Court itself has observed, “There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.” Lynch v. Donnelly, 465 U.S. 668, 674 (1984).

Just last year, the Supreme Court issued its decision in Locke v. Davey, 540 U.S. 712, 158 L. Ed. 2d 1 (2003). In this case, a student challenged the State of Washington’s Promise Scholarship program on Free Exercise grounds. The scholarship — awarded to students based on academic, income, and enrollment requirements — would permit a student to attend any public or private postsecondary institution in Washington. The program, however, explicitly stated that the scholarship could not be used to pursue a degree in theology: “No aid shall be awarded to any student who is pursuing a degree in theology.” Id. at 1310.

The Court held that the scholarship program’s exclusion of theological training did not violate the student’s Free Exercise right under the First Amendment. Most importantly, however, the Court stated that “there is no doubt that the State could, consistent with the Federal Constitution, permit Promise Scholars to pursue a degree in devotional theology...” Id. at 1311-12 (citing Witters v. Washington Dept. of Servs. for Blind, 474 U.S. 481, 489 (1986).

The same holds true with respect to the University’s Service Learning Program. While the proposed amendment may not violate the Free Exercise Clause, the Establishment Clause of the Federal Constitution does not require it. Consequently, the proposed amendment’s assertion that the Establishment Clause requires its adoption is simply untrue.

In fact, far from complying with the Establishment Clause, there is very good reason to think that the amendment, if adopted, would violate it. As previously mentioned, the Establishment Clause requires neutrality and forbids hostility toward religion. As the Supreme Court has often explained, the Establishment Clause “requires the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary.” Everson v. Board of Educ., 330 U.S. 1, 18 (1947) (emphasis supplied). Accord Lemon v. Kurtzman, 403 U.S. 602, 612 (1971) (Establishment Clause forbids government action with an effect that “inhibits religion”). Indeed, the discriminatory treatment of religious community service projects “would demonstrate not neutrality but hostility toward religion.” Board of Educ. v. Mergens, 496 U.S. 226, 248 (1990). Accord McDaniel, 435 U.S. at 641 (Brennan, J., concurring in judgment) (“The Establishment Clause, properly understood, is a shield against any attempt by government to inhibit religion”).

Moreover, discriminatory treatment of religious instruction, which the proposed amendment creates, would require state employees to make a judgment about what is and is not religious. This creates constitutional problems of “entanglement” under the Establishment Clause:

[State officials] would need to determine which words and activities fall within “religious worship and religious teaching.” This alone could prove an impossible task in an age where many and various beliefs meet the constitutional definition of religion. . . . There would also be a continuing need to monitor group meetings to ensure compliance with the rule.

Widmar, 454 U.S. at 272 n.11 (internal quotation marks and citations omitted).

As the Supreme Court stated elsewhere, along similar lines:

[T]o scrutinize the content of . . . speech, lest the expression in question — speech otherwise protected by the Constitution — contain too great a religious content ... [t]hat eventuality raises the specter of governmental censorship, to ensure that all ... [speakers] meet some baseline standard of secular orthodoxy. To impose that standard on ... speech ... is to imperil the very sources of free speech and expression.

R osenberger, 515 U.S. at 844-45 (1995).

Thus, treating private religious choices in service learning opportunities on equal terms with private secular choices in service learning opportunities “would in fact avoid entanglement with religion,” Mergens, 496 U.S. at 248 (citation omitted). Accord McDaniel, 435 U.S. at 636-42 (Brennan, J., concurring). “The Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities.” Id. at 641. As the Court opined in Widmar, where the court ruled unconstitutional a university regulation prohibiting the use of university buildings or grounds “for purposes of religious worship or religious teaching”: “[t]he University would risk greater ‘entanglement’ by attempting to enforce its exclusion of ‘religious worship’ and ‘religious speech.” Id. at 272 n.11 (citation omitted).

An additional potential problem with the proposed amendment is that it raises the specter of impermissible viewpoint-based discrimination by explicitly forbidding community service projects which are undertaken from a religious viewpoint. Indeed, on its face, the proposed amendment singles out certain and specific religious community service programs for exclusion.

In Rosenberger, a student group which published a newspaper with religious content was denied funding by the university because it determined, like the proposed amendment does here, that the newspaper was a “religious activity.” 515 U.S. at 827. The Court held that “[r]eligion ... [is] a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered,” and as a result “discriminating against religious speech ... [is] discriminating on the basis of viewpoint.” Id. at 831-32. The Court therefore ruled that the university’s refusal to fund the religious student group, while at the same time funding non-religious student groups, was unconstitutional.

Viewpoint-based discrimination — an even more egregious form of censorship than merely content-based discrimination, Rosenberger, 515 U.S. at 829 — violates the right to free speech even in nonpublic fora. See Lamb’s Chapel, 508 U.S. at 390-92; Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 806 (1985) (“government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject”). Hence, it is unnecessary to decide whether a forum is “public” or “nonpublic” — in either case, such censorship is unconstitutional. Lamb’s Chapel, 508 U.S. at 391-92.

Finally, it should be noted that fear of an Establishment Clause violation does not justify the restriction of First Amendment freedoms. See Good News Club, 533 U.S. at 112-19; Rosenberger 515 U.S. at 839-46; Pinette, 515 U.S. at 761-63; Lamb’s Chapel, 508 U.S. at 395. Indeed, a government interest in imposing greater separation of church and state than the federal Establishment Clause requires is not compelling in the First Amendment context. See Widmar, 454 U.S. at 276 (“the state interest asserted here — in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution— is limited by the Free Exercise Clause and in this case by the Free Speech Clause as well”).

I trust the foregoing will help you to convince the Members of the University Senate Academic Policies Committee and University Senate that (1) the Establishment Clause does not require the adoption of the proposed amendment, and (2) that the proposed amendment raises more constitutional difficulties than it allegedly solves.

Should you have any further questions, please do not hesitate to contact me again.

Very truly yours,

AMERICAN CENTER FOR LAW & JUSTICE

Geoffrey R. Surtees, Esq. Staff Counsel