Greg Tipton, as Representative of Maranatha Campus Ministries of Hawaii, an Unincorporated University Registered Organization of the University of Hawaii David Holmes-Smith Jonathan Van Boskerk Loree Johnson, and Other Students of the University of Hawaii Similarly Situated v. University of Hawaii State of Hawaii Kenneth Kato, in His Capacity as Member of the Board of Regents of the University of Hawaii and American Civil Liberties Union of Hawaii
Docket: 91-16790
Court: Court of Appeals for the Ninth Circuit; February 6, 1994; Federal Appellate Court
Greg Tipton, representing Maranatha Campus Ministries of Hawaii, along with other University of Hawaii students, appealed a district court's summary judgment favoring the University of Hawaii and associated defendants, including the American Civil Liberties Union of Hawaii. The case arose after the defendants agreed to withdraw funding for activities of student religious organizations, which Tipton claimed violated constitutional rights. The Associated Students of the University of Hawaii at Manoa (ASUH) administers a funding program supported by compulsory student fees, requiring organizations to apply for funds. ASUH evaluates applications based on significance, potential success, available funds, and past funding history, prioritizing programs with cultural, economic, or social impact.
On February 9, 1989, ASUH approved funding for several applications from religious organizations, including Maranatha, which sought support for campus-wide Bible studies aimed at outreach. Other funded activities included relationship seminars by Campus Crusade for Christ and a freshman orientation camp by Hawaii Youth, both incorporating religious messages. The district court ultimately rejected Tipton's constitutional claims, and the appellate court affirmed this decision.
Certain students prompted the ACLU to initiate a lawsuit against Hawaiian officials, asserting that a February 1989 ASUH funding authorization breached the Establishment Clause of the First Amendment. In response, state officials agreed to withhold ASUH-authorized funds from specific groups (Maranatha, Crusade, Hawaii Youth, Champions) that would use the funds for religious advocacy, even in secular contexts. A Memorandum of Agreement was established, prohibiting the disbursement of funds from the URO Funding Program for any sectarian activities.
Following this settlement, ASUH adopted the Lemon v. Kurtzman three-prong test to evaluate URO funding applications. Religious UROs were still allowed to apply for funding related to secular activities, with no apparent discrimination against them. However, as a consequence of the settlement, the groups mentioned lost their funding, which expired on April 28, 1989, with no future funding requests noted.
In 1991, an individual named Tipton filed a lawsuit against the University and the ACLU, claiming violations of multiple constitutional clauses, including Free Speech, Free Association, Free Exercise, and the Equal Protection Clause. Tipton's main argument was that the settlement led to a cessation of funding for religious UROs, even for secular activities. He sought both declaratory and injunctive relief as well as damages.
The district court ruled in favor of the University on its motion for summary judgment, stating that Tipton had no entitlement to government-subsidized speech, deemed the funding forum non-public, and determined that the funding restrictions did not coerce actions against religious beliefs. The court found that strict scrutiny was unnecessary for the equal protection claim since the university's policy did not favor any particular religion. The rationale of avoiding Establishment Clause violations justified the funding restrictions.
Tipton’s motion to amend his complaint was denied; the court deemed it futile and did not address potential Eleventh Amendment defenses, which would limit relief options. All claims against the ACLU were dismissed, as it was not considered a state actor. Tipton subsequently appealed the district court's decision. The appeal will be reviewed de novo, with the standard for summary judgment being that no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law.
Tipton seeks compensatory and punitive damages but fails to name a defendant from whom damages can be recovered, limiting his options to prospective relief under the Eleventh Amendment. His claims relate to potential future funding denials for an unspecified religious event, focusing on alleged defects in both written and unwritten University policies. Tipton's challenges are facial, as he does not specify a particular funding request. A facial challenge to a state policy typically fails if the policy can be constitutionally applied under certain circumstances, which is the case here with the University's funding policy based on the Lemon test related to the Establishment Clause. The policy is deemed constitutional as long as the Lemon test remains applicable. Furthermore, the University has an agreement with the ACLU to refrain from funding sectarian activities or promoting specific religious viewpoints, provided this policy is applied uniformly to all eligible groups. The state is not required to fund the exercise of constitutional rights and may selectively fund programs it deems in the public interest. The University's URO funding program encourages student participation through diverse eligibility criteria, which does not invalidate its implementation.
The University is not required to determine whether it can refuse funding to all student religious organizations while supporting other groups, as it claims to apply funding criteria evenly, which Tipton does not contest. The court does not need to address whether the University could fund purely religious events or 'pervasively sectarian' groups since the University explicitly states it will not fund religious events, and there is no claim that any student group is 'pervasively sectarian.' The University has significant discretion in establishing a funding policy for limited resources allocated to extracurricular activities, and it can define the parameters of its programs. While the University's policies are not extreme, any funding policy must be uniformly applied to all qualified applicants. Denials of funding based on the applicant's nature, rather than established criteria, will face heightened scrutiny, as public funding must be allocated without ideological discrimination.
Tipton challenges the University’s unwritten policy as it relates to its written policy, specifically alleging that the University uniformly denies funding for activities with "religious overtones." However, he fails to demonstrate that the University's application of its written policy indicates an unwritten practice that diverges from the formal policy. The denial of funding in 1989 was based on a single authorization that was later partially rescinded due to an agreement with the ACLU, and Tipton does not provide evidence of other specific funding denials to establish an unwritten pattern. The absence of such evidence precludes a valid challenge to the systematic operation of the written policy. The court also notes that even if Tipton could prove the existence of an unwritten policy, it would be permissible if applied uniformly.
Additionally, Tipton did not contest the district court's dismissal of the ACLU from the case but included it in the appeal to allow for defense of its interest in a Memorandum of Agreement with the University. The ACLU has requested sanctions due to its inclusion in the appeal, which the court finds inappropriate since Tipton's arguments were relevant only to the University. The court emphasizes that parties not directly involved in the claims should not be included in appeals, and while they do not impose sanctions on Tipton for this inclusion, they note that it was not intended to gain an advantage or prolong the case. The judgment is affirmed.
The '1990-1991 ASUH Senate Funding Policies' mandate the application of the 3-prong Lemon test to determine eligibility for funding, assessing if programs have a valid secular purpose, if their primary effect advances religion, and if they create excessive church-state entanglement. Any application failing this test will be ineligible for funding until circumstances change. The document clarifies that it will not evaluate whether a single invalid application could invalidate the entire funding policy under an 'overbreadth' analysis, as policies adopting Supreme Court standards are generally not subject to such scrutiny. There is no opinion on whether Tipton's 1989 funding request would violate the Establishment Clause. Tipton's reference to a prior case regarding rental policies is deemed inappropriate, as that case involved a lack of rational basis for a policy change perceived as a violation, whereas the University applies its funding criteria uniformly. It would be improper for the University to use funding policies to circumvent rulings from Lamb's Chapel and Widmar, which prohibit discrimination based on religious content or viewpoint when facilities are open to private use. Tipton acknowledged the University showed no intent to evade these rulings. Although Tipton noted instances of funding to religious organizations for secular activities, these instances do not significantly reflect the overall funding criteria of the University.
