\nWISCONSIN – If it were a sports event, the cheering sections\nwould look about as lopsided as those at the women’s World Cup\nsoccer final between the U.S. and China.
When the University of Wisconsin at Madison urges the Supreme\nCourt this fall to rule that it can continue using mandatory student\nfees to fund all campus student groups, it will already have the\nadvantage of 14 friend-of-the-court briefs supporting its argument.\nThat is a stark contrast to the single brief filed in support\nof conservative University of Wisconsin students who are arguing\nthat their First Amendment rights are violated every time a dollar\nof their student fees funds a group whose political or ideological\nviews they oppose.
Fifteen states have also joined the long list of student, education\nand advocacy groups urging the Supreme Court to overturn the March\n1998 ruling of the U.S. Court of Appeals for the Seventh Circuit.\nThat ruling struck down the university’s fee policy as violating\nthe First Amendment’s guaranteed protection against compelled\nspeech in the case of Southworth v. Grebe, 151 F.3d 717\n(7th Cir. 1998).
Sixteen friend-of-the-court briefs in all were submitted to\nthe Supreme Court in the case. Known officially as briefs amicus\ncuriae, friend-of-the-court briefs are typically filed by concerned\nor interested parties attempting to influence the court’s decision\nwith legal insight and argument. The briefs in this case come\nfrom organizations as diverse as the arguments they state. Groups\nthat have filed briefs on the side of the university include the\nAmerican Civil Liberties Union, the AFL-CIO and the National Education\nAssociation, as well as the states of Arkansas, Colorado, Georgia,\nHawaii, Iowa, Louisiana, Maryland, Massachusetts, Minnesota, Montana,\nNew York, North Carolina, Ohio, Oregon and Tennessee.
The Court is being asked to decide whether a public university\npolicy under which university students must pay mandatory fees\nthat are used, in part, to support organizations that engage in\npolitical or ideological speech is constitutional.
Pete Sikora, a students’ rights advocate with the New York\nPublic Interest Research Group, a nonprofit organization directed\nby New York state college and university students, said one of\nthe reasons his group filed a brief on the side of the university\nwas to highlight the two separate issues the case raises–the\ncivil rights implications of the students’ motivation, and the\nlegal question.
“Basically, this case was motivated by right-wing thugs,\nand from a legal perspective, they really have no legs to stand\non,” Sikora said.
Other groups, such as the Lambda Legal Defense and Education\nFund, a national gay and lesbian civil rights organization, have\nfiled a brief supporting the university in order to help advance\nthe social issues of minority student groups whose views are under\nprotest.
“We see this as the latest salvo in a long string of lawsuits\nby right-wingers trying to de-fund gay groups,” said Patricia\nM. Logue, an attorney with the Lambda Legal Defense and Education\nFund. “The students are cloaking this case in the First Amendment,\nbut what it’s really about is helping them silence gay people.”
Peter Koneazny, legal director of the ACLU of Wisconsin, agrees\nwith Logue that while the students seeking relief from paying\nfees to certain groups may be basing their case on First Amendment\ngrievances, their true motivation seems to stem from an attempt\nto oppress minorities.
“The gist of what’s happening here is an attempt by some\ngroups to silence others on the basis of viewpoint,” Koneazny\nsaid.
Only one organization, the Pacific Legal Foundation, filed\na brief on behalf of the students in the case. The foundation\nis a nonprofit litigation group that has represented other students\nin similar cases challenging governmental uses of mandatory fees.
“This is a classic First Amendment case,” said Deborah\nLaFetra, an attorney with the Pacific Legal Foundation. “Of\ncourse, this is what some people will call a ‘negative First Amendment\ncase’ because it has to do with the right not to speak.”
LaFetra said the group’s brief emphasized that while the university\nmay be arguing that the compelled use of fees has an educational\nbasis, that defense is weak because there is little activity that\ntakes place at a public university that could not be defended\nas having an educational basis.
“The court can not simply defer to a university’s claim\nthat the compelled speech is educational,” LaFetra said.\n”[The university officials are] saying, ‘It’s educational.’\nWell, gee, what isn’t?”
Americans United for Separation of Church and State was also\nunique in being the only group to submit a brief in support of\nneither party.
“Our concern was the impact of this decision on questions\npercolating at the lower court level on issues such as [public\nfunding of private school] vouchers and the [public] funding of\nreligious entities that provide social services,” said Ayesha\nKhan, litigation counsel for Americans United.
Although student activity fees are the central matter under\nconcern in the case, the possible ramifications of the Court’s\ndecision, however, could extend beyond mere activity fees.
“The case poses a very real and very serious threat to\nthe free flow of ideas on college campuses,” said Michael\nSimpson, assistant general counsel with the National Education\nAssociation, which filed a brief on behalf of the university.\n”We’re worried that if the Seventh Circuit’s ruling is upheld,\na student may be able to argue that he or she can withhold a part\nof their tuition that would pay professors who espouse views they\ndon’t agree with, money that would pay for certain library books\nor fund outside speakers they don’t like.”
Although the student media at many schools are inexorably tied\nto activity fees, it is easy to miss the potential impact the\nruling could have on a free press at college campuses. The Student\nPress Law Center, The Associated Collegiate Press and College\nMedia Advisers, Inc.– three groups representing the interests\nof college journalists–submitted a joint brief to the Court underscoring\nthe potential impact of the case on the college student media.
Briefs submitted by the United Council of University of Wisconsin\nStudents, the state of New York, the Wisconsin Student Public\nInterest Research Group, the United States Student Association\nand the American Council on Education also discuss the potential\nimpact of the case on student publications.
According to the brief filed by the three student media advocacy\ngroups, the lower court’s ruling, if allowed to stand, may threaten\nthe very existence of a free student press on many public college\ncampuses across the nation.
The fact is that many student publications receive at least\na portion of their funding–some the majority of their funding–from\nstudent activity fees. The SPLC’s brief notes that many campus\nnewspapers, radio stations and similar media could not operate\nwithout such fees.
“By being in a public university, students, by student\nfees, really support free expression,” said Tom Rolnicki,\nexecutive director of the Associated Collegiate Press. “The\nBadger Herald and The Daily Cardinal [competing student\nnewspapers at the University of Wisconsin] really provide opportunities\nfor expressing divergent viewpoints. The students suing the school\nshould recognize that they have other venues for expressing their\nopinions instead of closing off opportunities for all students.”
The student press groups argue that an affirmation of the lower\ncourt’s ruling in this case would basically open the floodgates,\nallowing public college students to withhold funds from organizations\nthat engage in any form of political or ideological expression.\nThe editorial pages of most student newspapers serve as forums\nfor political speech, making them vulnerable to protest from students\nwho disagree with viewpoints expressed there.
“Because college student media routinely cover and offer\nopinions on political and ideological issues, they could be among\nthe first on many campuses to lose funding if the Seventh Circuit’s\ndecision is upheld,” said Mark Goodman, executive director\nof the SPLC.
After the lower court’s ruling, the SPLC began receiving calls\nfrom college journalists at schools such as the University of\nNorth Carolina at Chapel Hill and Florida A&M University reporting\nthat administrators had threatened to withhold funding for student\npublications if they continued to print political editorials or\nendorsements.
College newspapers across the country have a long-standing\ntradition of providing forums for robust debate. According to\nthe SPLC’s brief, “it is difficult to imagine a greater threat\nto student expression on a college campus than shutting down the\nprimary student newspaper for lack of funding–yet that is the\ninsidious nature of the court of appeals’ decision.”
The United States Supreme Court will hear arguments in Board\nof Regents of the University of Wisconsin v. Southworth this\nfall.\n