Univ. of Wisconsin appeals mandatory student fee case

WISCONSIN — What is the price of free expression at the University of Wisconsin?

Some students are saying that any price is too high if it includes paying for clubs that they are opposed to.

Now the university is appealing a November 1996 ruling by a U.S. District Court that agreed with a complaint from three students and declared the university’s student fee system unconstitutional.

The ruling came from a lawsuit filed by former law students at the Madison campus who did not want part of their student fees to go toward clubs with political or ideological causes — particularly those whose views they did not agree with. The decision now leaves many clubs, and possibly student publications with political editorials, unsure about the future of their school funding.

Judge John Shabaz affirmed the students’ claims that the fee system at the university violated their First Amendment rights “not to speak” by not allowing them to opt out of paying funds to certain clubs.

Plaintiffs Scott Southworth, Amy Schoepke and Keith Bannach named 18 clubs including the UW Greens, an organization that promotes the Green Party, the AIDS Support Network and two homosexual awareness clubs on campus as examples of these types of clubs in their lawsuit against the school. Southworth said he would be paying about $12 a semester to fund those clubs.

The university’s bylaws allow the student government control in setting up the fee system to fund these and many other clubs.

“We had, for a number of years, been upset with the way the university was utilizing student fees,” Southworth said. “The funding of private student groups was unnecessary — it was unethical.”

In the ruling for Southworth v. Grebes, No. 96-C-0292-S, 1996 U.S. Dist. LEXIS 20980, (W.D. Wis. Nov. 29, 1996), Shabaz wrote “the balance between the competing interests in this case tips in favor of plaintiffs’ First Amendment rights not to be compelled to speak or associate.”

The opinion also stated that the court did not need to decide which clubs fall into the “primarily political or ideological” category, but said simply that students should not have to pay for them.

The decision was based partly on U.S. Supreme Court Justice Sandra Day O’Connor’s concurring opinion in Rosenberger v. Rector and Visitors of the University of Virginia, 115 S.Ct. 2510 (1995), in which she noted “the possibility that the [mandatory] student fee is susceptible to a Free Speech Clause challenge….”

At the University of Wisconsin, students must pay these fees in order to graduate. Money from the fees are distributed to 140 of the 623 clubs on campus.

The university originally argued that all clubs on campus are focused on the broadening of educational diversity on campus, even if some have political motives attached.

If the ruling is upheld, the student fee system would have to include a refund process for students opposed to some of the clubs.

Meanwhile, state Sen. Robert Welch (R-Redgranite) has introduced a bill to deal a blow to the fee system from a legislative angle. Senate Bill 134 is designed with the words of Judge Shabaz in mind. The text of the bill states, “The board may not approve any fee for the support of a student organization whose educational benefits are incidental to its primary purpose of advancing a political or ideological cause unless it exempts from payment of the fee any student who objects to supporting the organization.”

The bill will go up for public hearing at the University of Wisconsin, Milwaukee in September.

Brian Fraley, spokesman for Welch, said the bill is not meant to hamper free expression on campuses.

“This isn’t a matter of censoring content,” Fraley said. “If Joe Student doesn’t want to fund the Nicaraguan Contras [he shouldn’t have to].”

Which clubs could see their funding disappear remains to be seen. State Assistant Attorney General Susan Ullman, who is representing University of Wisconsin in its appeal of the decision, said the ruling leaves many questions unanswered on how the university could implement a new policy.

“It doesn’t set up a very good test,” Ullman said. “It would have to have the board of regents looking at each club,” a job the board should not have to deal with, she added.Southworth said any university plan to continue funding outside student organizations at all could become an administrative nightmare.

“They would be better off dumping the system,” Southworth said. “What if I don’t want to support the chess club because it promotes war…. What if somebody said that and believed it?”

Southworth speculated that new policies that separate political and non-political clubs will cause more confusion, and it will be impossible to make everyone happy.

Meanwhile the university will continue to fight a decision it believes claims to support free expression, but inadvertently restricts it.