An interesting new lawsuit has been filed against Wayne State University, a public university in Detroit. The suit was filed by Students for Life, a recognized student group at Wayne State, over the refusal to allow the group to receive student activity fee funding for a week of activities they call Pro-Life Week. The school allows student groups to request funds for on-campus activities, for travel to off-campus conferences and so forth, but the student council rules forbid the use of funds for “political advocacy” or to “advance religion.” The request was denied on that basis.
The obvious precedent here is Rosenberger v Rectors of Virginia, where the Supreme Court ruled that if a university is going to fund student groups it cannot discriminate against religious student groups and it must provide funding and recognition on an equal basis to student groups regardless of the political or religious viewpoint. But the question is whether the facts of this case are in line with Rosenberger.
Wayne State seems to have something of an unusual system in place, one that requires subjective judgments be made by the Student Council and the administration in response to specific requests for funding. Rosenberger, if I recall correctly, was different in that it involved funds that were generally available to all groups across the board in order to put together a publication for the group. With the Wayne State system, there could be any number of possible reasons to deny a particular request.
Students for Life requested $4010 to fund Pro-Life Week, most of it for promotional purposes (which is in line with Student Council policy; because it is a commuter campus, promotion of on-campus events is the key to attendance). The request was denied and the denial letter said that it was “because of the spiritual and religious programming references in the cover letter.” That is a reference to the fact that one of the events they proposed for the week was a meeting about “spiritual adoption.”
They appealed the denial, which meant a hearing by the entire WSU Student Council to vote on the matter. According to the complaint, much of the discussion at that hearing was about legally irrelevant factors. For instance, one council member allegedly objected to the event because it might offend women who’ve had an abortion – as if that would be a legal reason not to allow the event to occur. The Council denied the appeal.
There are some interesting questions in this case. Is a ban on funding of all political or religious advocacy trigger Rosenberger and lead to the conclusion that those restrictions are facially unconstitutional? Or does the fact that all such advocacy is banned regardless of the specific idea being advocated mean the rule is viewpoint neutral and rescue it from that conclusion?
And do they have an as-applied challenge because the student council has approved funds for other events that could be viewed as political advocacy? And is there really a way of distinguishing political advocacy from the advocacy of any other ideas? Virtually every issue has some political implications. This will be an interesting case to follow.