Victory for Free Speech and Religious Liberty at Boise State University

The Alliance Defense Fund (ADF) and Christian Legal Society (CLS), after filing suit against Boise State University over its discriminatory exclusion of religious organizations from the ability to receive funding from student fees, announced yesterday that Boise State has rewritten its policies to give religious groups equal access to the funds along with other student organizations. This is a strong victory for freedom of speech and legal equality.

As the CLS complaint and brief (both PDFs) in Cordova v. Laliberte point out, Boise State was the sole institution of higher education in the State of Idaho relying—erroneously—on the Idaho Constitution's separation of church and state in order to exclude religious organizations from access to the mandatory student activity fee. About 18 religious organizations—including Christian, Muslim, and Hindu organizations—were excluded. Nevertheless, Boise State had no problem funding the Secular Student Alliance, which exists in part to "[p]resent a positive view of atheism, agnosticism, rationalism, secularism, humanism, skepticism, and all non-religious worldviews to the community." And the complaint notes that Boise State reportedly was going to start discriminating against religious organizations regarding access to university facilities as well.

The excellent CLS brief makes clear, as does FIRE's Guide to Student Fees, Funding, and Legal Equality on Campus, that mandatory student activity fee funds—and any student speech the funds finance—belong to the students, not the state. The Idaho Constitution is irrelevant in this context: "[T]here is no Establishment Clause violation in the University's honoring its duties under the Free Speech Clause. Rosenberger [v. University of Virginia (1996)], 515 U.S. at 846."

Moreover, the exclusion directly contradicted the very purpose of the student activity fee funds:

Denying student activity fee funds to religious groups undermines the goal of fostering diverse views. Excluding religious student organizations from the forum for allocations of student activity fees subverts the university's goal of empowering students to make contributions to the intellectual life of the university through participation in student organizations.

The brief makes clear that Boise State's policy violated the rights of all 18 religious groups while privileging the secular student group. The answer is not to exclude the secular students too, but to include all of the groups:

It is as objectionable to exclude both a theistic and an atheistic perspective on the debate as it is to exclude one, the other, or yet another political, economic, or social viewpoint. The dissent's declaration that debate is not skewed so long as multiple voices are silenced is simply wrong; the debate is skewed in multiple ways. [quoting Rosenberger, 515 U.S. at 831-32]

The brief has a lot of terrific additional material on how other parts of Boise State's policy were violating the requirement of viewpoint neutrality, such as by privileging very popular groups at the expense of less popular ones. It is a brief worth reading.

Boise State has seen the light and made its new policies fair and inclusive of all student organizations. The student plaintiffs have voluntarily dismissed their lawsuit. As ADF reports:

As a result of the lawsuit, BSU [Boise State University] completely rewrote its policies for student activity fee distribution to provide protection for all student groups against viewpoint discrimination. BSU also amended its policies to clarify that its nondiscrimination policies would not be applied to prevent student groups, including religious student groups, from limiting their leadership to those who share the groups' beliefs and conduct themselves consistently with those beliefs.

This last point is a victory for freedom of association, too. Congratulations to ADF and CLS for a job very well done.