WASHINGTON, D.C. — Colleges and universities may use mandatorystudent activity fees to finance campus groups that engage in politicalspeech as long as the funding system is viewpoint-neutral, the SupremeCourt ruled in March.
In a unanimous decision, the Court rejected the argument of Christianand conservative students at the University of Wisconsin at Madison thatthe university’s fee system violated their First Amendment rights by forcingthem to fund groups they disagree with on political, religious or ideologicalgrounds.
Writing for the majority, Justice Anthony M. Kennedy said, “The FirstAmendment permits a public university to charge its students an activityfee used to fund a program to facilitate extracurricular student speechif the program is viewpoint neutral.”
The Court’s ruling in the case, Board of Regents of the Universityof Wisconsin System v.Southworth, reversed an earlier decision by theU.S. Court of Appeals for the Seventh Circuit, which had held that theuniversity’s fee system was unconstitutional.
In the opinion, Kennedy cited the clear interest of the university inpromoting the exchange of ideas. Although the university’s fee-allocationprogram inevitably subsidizes speech with which some students disagree,Kennedy said, a Court-imposed system allowing students to opt out of contributingto groups they oppose “could be so disruptive and expensive that the programto support extracurricular speech would be ineffective.”
“The First Amendment does not require the University to put the programat risk,” he said.
Kennedy distinguished the Wisconsin case from earlier rulings that saidmandatory bar association fees paid by lawyers and fees paid to unionsby nonunion workers could not be used for political advocacy by pointingout that unlike unions and bar associations, one of the primary purposesof a university is to facilitate the discussion of ideas.
“The university may determine that its mission is well served if studentshave the means to engage in dynamic discussions of philosophical, religious,scientific, social and political subjects in their extracurricular campuslife outside the lecture hall,” Kennedy said. “If the university reachesthis conclusion, it is entitled to impose a mandatory fee to sustain anopen dialogue to these ends.”
Under the ruling, universities may implement a funding system that allowsindividual students to opt out of funding certain groups, but they arenot required to do so.
The case stems from a lawsuit Scott Southworth filed against the Universityof Wisconsin at Madison for refusing to waive his $331 annual student activityfee for the 1995-96 term. Southworth, a law student at the university atthe time, said he particularly objected to his fees being used to fundthe UW Greens, the Campus Women’s Center, Amnesty International and theLesbian, Gay, Bisexual and Transgender Campus Center.
Southworth’s attorney, Jordan Lorence, said he was disappointed by theCourt’s decision in the case. He said he believes that students have aright of conscience to opt out of paying for groups they disagree with.
The fight over student fees will shift, Lorence said, from the right-of-conscienceissues that were raised in the Wisconsin case to the topic of whether universities’funding systems are truly viewpoint-neutral.
“I think the initial flurry of activity in the press and from peopleoverjoyed that we lost did not really think through what it means to beviewpoint-neutral,” Lorence said. “The Court was very clear that thereare rights of students that need to be protected, and I don’t think theyare protected” under many universities’ current fee-allocation systems.
The Court did not uphold one aspect of the University of Wisconsin’sfee system, in which a vote by the majority of the student body can takefunding away from or give funding to a campus group. Kennedy said thisprocess did not appear to be viewpoint-neutral and could “undermine theconstitutional protection the program requires.” The justices directeda lower court to rule on the constitutionality of this funding method.
Fully 70 percent of the nation’s college and universities use studentfees to fund campus groups, according to the National Association for CampusActivities. Had the Court ruled in favor of the students protesting thefee system, many public colleges would have been forced to revise, or eveneliminate, their student-fee programs, possibly changing them to allowindividual students to select the groups they want to fund or excludinggroups with political, ideological or religious objectives entirely.
Many free-press advocates had worried that a ruling in favor of thestudents would have a negative impact on the college student news media.If the Court had ruled the other way, student media could have lost fundingor been prohibited from publishing editorials or endorsing candidates foroffice.
“It could have potentially been such a problem if there had been anything[in the Court’s decision] that would have controlled the funding of studentnewspapers based on the perception of political or other content-type matters,”said Chris Carroll, president of College Media Advisers. “I felt as thoughwe dodged a bullet.”
The Court’s decision in the Wisconsin case will likely affect the outcomesof several cases challenging the constitutionality of student-fee systemscurrently pending in federal courts.
Lorence, who is also representing students in another student-fee case,Curryv. Regents of the University of Minnesota, said that case is not over.He said Minnesota’s fee system does not meet the viewpoint-neutral standardthe Court imposed in the Wisconsin case.
The U.S. Court of Appeals for the Ninth Circuit was waiting for theSupreme Court’s decision in this case before deciding whether to reheara student-fees case brought by students at the University of Oregon. Athree-judge panel had upheld the university’s mandatory student-fee systemin February. It is unlikely that the full court will vote to rehear thecase.
Text of the Supreme Court’s decision in Board of Regents ofthe University of Wisconsin System v. Southworth can be found onlineat http://supct.law.cornell.edu/supct/html/98-1189.ZO.html.