Anti-abortion group alleges viewpoint discrimination

A group called Students for Life has filed suit in federal court for the eastern district of Michigan against Wayne State University (WSU), alleging viewpoint discrimination over a denial of funding for a week-long event they proposed to hold on campus.

Students for Life, a recognized student group at Wayne State, followed university procedures to request funding for an event they called Pro-Life Week. The school allows student groups to request funds for on-campus activities, for travel to off-campus conferences and other activities, 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 key precedent here is Rosenberger v. Rectors of Virginia, in which the U.S. 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 there is some question as to whether the facts of this case are in line with Rosenberger.

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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. The Rosenberger case was different in that it involved funds that were generally available to all groups across the board in order to put together publications for their group. With the Wayne State system, there could be any number of possible reasons to deny a particular request.

Students for Life requested $4,010 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 the group proposed for the week was a meeting about “spiritual adoption.”

Group members appealed the denial, which required convening 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.

This case raises a number of interesting questions that will no doubt be answered at trial. Does the ban on funding of all political or religious advocacy trigger Rosenberger and lead to the conclusion that those restrictions are facially unconstitutional (meaning that the policy would not be constitutional under any circumstances)? 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 (meaning the policy may be constitutional in some situations but is being applied in a discriminatory manner) 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.

Doug Laycock of University of Michigan Law School, a noted expert on the First Amendment, tells the Michigan Messenger that it is the subjective nature of the system that is at odds with the law. Citing Rosenberger and a more recent case, Southworth v. Board of Regents, Laycock noted that the law “requires viewpoint neutrality in these programs. Given that, any university that lets students distribute these funds on an ad hoc basis is hanging a big ‘Sue Me’ sign on its back. Students often don’t take the obligation of viewpoint neutrality seriously, and they often have little understanding of its implications.”