Student Religious Organizations
CUSP 2014 Fall Meeting
October 23, 2014
By John Clark
Assistant Attorney General
First Amendment
 Congress shall make no law respecting
an establishment of religion, or
prohibiting the free exercise thereof;
or abridging the freedom of speech,
or of the press; or the right of the
people peaceably to assemble, and to
petition the Government for a redress
of grievances.
Healy v. James, 408 U.S. 169 (1972)
 Facts: Student group loosely affiliated with
national organization that advocated
political change through violence requested
recognition as a student organization.
President denied recognition because of
ideals of national organization. Club was
unable to meet on campus or to advertise to
the campus community.
First Amendment includes freedom to associate.
Individuals have a right to associate to further their personal
beliefs.
• Denial of association’s recognition prohibited it from
meeting as a group, using college facilities to meeting,
advertising on bulletin boards or in college newspaper.
• College improperly placed burden on association to show
that it could comply with college’s rules and was a form of
prior restraint.
• College is free to deny recognition to activities that violate
reasonable campus rules or substantially interfere with the
opportunity of other students to obtain an education.
Article I, Section 11
 No public money or property shall be
appropriated for or applied to any
religious worship, exercise or
instruction, or to the support of any
religious establishment.
Widmar v. Vincent, 454 U.S. 263 (1981)
 Facts: University created a forum for student
organizations by accommodating their meetings.
University denied recognition to a student group
that wanted use of University facilities for
religious worship and discussion.
 The University’s policy of granting access to
facilities created a limited public forum. Any
restriction based on religious content must meet a
narrowly tailored, compelling need.
Establishment Clause does not prohibit
viewpoint neutral, equal access to state
facilities, since the primary effect of the policy
neither advances nor inhibits religion.
State Establishment Clause could never
contravene the First Amendment (stated without
reaching the Supremacy Clause).
Potential Violation of State’s Establishment
Clause is not a compelling need
Mergens v. Westside Comm. Schools, 496 U.S. 226 (1990)
 Facts: Christian club challenged school’s denial of
recognition to use facilities after hours under the Equal
Access Act. The School claimed that providing a school
advisor to supervise the club would violate the
Establishment Clause.
 The Court rejected the state-sponsorship of religion
argument because the Act only provided a school employee
to attend the meeting for custodial purposes.
 “Closer question” if paid employee advisor actively
participated in religious rights with the students. Malyon
v. Pierce Cy., 131 Wn.2d 779 (1997) (volunteer chaplains).
Lamb’s Chapel, 508 U.S. 384 (1993)
 Facts: N.Y. statute allowed schools to adopt reasonable
regulations to allow afterhours use of school facilities
for social, civic, and recreational meetings. Church
requested use of facilities to publicly show a film series
dealing with family and child-rearing issues faced by
parents from a religious perspective.
 School opened limited forum by authorizing
afterhours use of its facilities.
 Prohibition of child-rearing film from a religious
perspective violated the church’s free speech because it
amounted to viewpoint discrimination.
Rosenberger v. Univ. of Virginia, 515 U.S. 819 (1995)
 Facts: The University recognized 15 student news
organizations. Student organization applied for funding to
publish a religiously oriented newspaper at the University.
The University denied funding because funding was not
available for religious activities.
 Having chosen to provide funding to student groups and
newspapers, the University could not withhold funding
based on the religious viewpoint of one of the
organizations.
 Funding religious based organizations does not violate the
Establishment Clause when the government applies
neutral criteria and evenhanded policies.
University of Wisconsin v. Southworth, 529 U.S. 217 (2000)
 Facts: Students sued University requesting the ability
to opt out of funding student political or ideological
organizations offensive to their personal beliefs. They
alleged that the mandatory collection of S&A fees
violated their rights to free speech, free association,
and free exercise.
 Mandatory payment of S&A fees to fund student
organizations and programs is permissible if the
program or activity is viewpoint neutral.
Good News Club v. Milford Central Sch., 533 U.S. 98 (2001)
 Facts: School allowed afterhours use of facilities for
events pertaining to the welfare of the community.
Parents applied to use school facilities after hours to
provide bible study, sing songs, and teach morals.
School denied usage as tantamount to religious
instruction.
 School engaged in viewpoint discrimination.
 Purely private religious use in a limited public forum
does not violate the Establishment Clause.
Locke v. Davey, 540 U.S. 712 (2004)
 Facts: Washington offers high achieving students a
promise scholarship that can be used for tuition so long as
the student certifies that he/she is not pursuing a degree in
devotional theology.
 Denial of subsidy does not implicate free speech.
 Rule does not evince a hostility toward religion like in the
Church of Lukumi Babalu Aye, but merely indicates the
state’s preference not to fund this religious endeavor.
 There is “play in the joints” between the Establishment
Clause and the Free Exercise clause – the state can choose
to fund the scholarship or not without violating the First
Amendment.
Christian Legal Society (Hastings) v. Martinez, 561 U.S. 661 (2010)
 Facts: Student religious organization filed suit against
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Hastings for requiring it to comply with the College’s
nondiscrimination policy. The policy required that all
student organizations be open to anyone in the student
body.
Policy that all recognized student groups must be open to
all students was a reasonable and viewpoint neutral policy.
The policy set the parameters of the limited forum. For
instance, schools can limit student groups to students only.
The group’s freedom not to associate was co-extensive with
its free speech rights in the limited public forum.
Adequate alternative forums were available for the group if
it chose not to accept the University’s funding.