Lower courts asked to revisit fee cases

WISCONSIN — A federal district court will have the opportunityto determine if the referendum system at the University of Wisconsin –which allows the student body to determine funding for certain studentgroups — is constitutional.

Although the Supreme Court upheld the use of mandatory student activityfees to fund campus groups in March with its decision in Board of Regentsof the University of Wisconsin System v. Southworth, it directed thelower court to determine whether the referendum system is “viewpoint-neutral”– a condition such funding mechanisms must meet to be considered constitutional.In order to be classified as viewpoint-neutral, a school must prove that,when distributing funds to organizations, it does not discriminate basedon the group’s views.

A lower court may also have the opportunity to rule on the university’sfee system itself, because, while rejecting the argument that a mandatoryfee system constitutes a violation of the First Amendment, the Court saidschools are required to ensure their funding systems are viewpoint-neutral.

Jordan Lorence, the attorney representing the students in Southworth, saidhe believes many advocates of the fee system prematurely proclaimed victoryafter the Supreme Court issued its ruling in the case because Wisconsin’sfee system, as well as those at many other colleges, does not meet theneutrality standard.

“We’re now arguing that this viewpoint-neutral criteria that the SupremeCourt has imposed on the university is a pretty significant thing,” Lorencesaid. “It means that if the university wants to have a mandatory contributionsystem, they cannot have discretion in how they give out the money. Theyhave to have some sort of neutral criteria where people are basically automaticallyentitled to money.”

According to Lorence, the U.S. Court of Appeals for the Seventh Circuitagreed that the Southworth case should be reopened to challenge astipulation the students had agreed to earlier — that the fee system wasindeed viewpoint-neutral. Lorence said at the time of the original complaint,the students did not consider how the money was distributed to be the importantfactor, but instead questioned only whether a school could compel studentsto contribute to political, religious or ideological groups they opposed.

Now that the court has ruled that a school can legally have a mandatoryfee system, Lorence said he wants to prove that the University of Wisconsin,in exercising “unbridled discretion” over which groups receive fee money,is violating the constitution.

The university has asked the full panel of Seventh Circuit judges toreverse the decision allowing the case to continue. Lorence is awaitingthe court’s ruling on that issue but said even if it sides with the university,other students may file a new suit against the school.

“Sooner or later, the University of Wisconsin is going to have to defendits system on this viewpoint-neutrality principle, and I think they’regoing to have a tough time doing so,” he said.

Lorence is also handling another case challenging the fee system atthe University of Minnesota. That case was on hold pending the Southworth ruling,but he is now seeking to continue it as well.

“What has happened with both the Wisconsin and Minnesota cases is thatthey have come back to life in a pretty significant way,” Lorence said.”I think that it’s far from over.”

In Curry v. Regents of the University of Minnesota, Lorence submitteda motion to amend the complaint on a viewpoint-neutrality basis and reopendiscovery. The university is opposing this action, and a court should ruleon the motion in late August or early September.

“I think that even though we lost a 9-0 ruling at the Supreme Court,the Court moved the law in a different direction but imposed a significantrestriction on what universities can do,” Lorence said.