WISCONSIN — The University of Wisconsin at Madison is appealinga federal court’s ruling that its student-fee allocation system is stillnot viewpoint-neutral and therefore unconstitutional.
The case, Fry v. Board of Regents of the University of Wisconsin,2001 U.S. Dist. LEXIS 3346 (W.D. Wis. March 15, 2001), now returnsto the U.S. Court of Appeals for the Seventh Circuit, where it is likelythe same three judges who heard the case in 1998 will listen to oral arguments,according to Jordan Lorence, the lawyer representing the three studentswho are suing the university over its student-fee system.
The appeal follows a March 16 decision by U.S. District Judge John Shabaz,who ruled that the fee system now in place at the university is not viewpoint-neutralbecause it allows student government members too much discretion in determiningwhich groups are funded and which are not. This leaves student groups atthe mercy of the student government for money, Lorence said.
“The point of this money was to enhance the spectrum of opinions expressedon campus,” Lorence said. “If you have people doing this, they could skewthe money to groups they like.”
The U.S. Supreme Court ruled unanimously in March 2000 that public universitiesmay require their students to pay mandatory student-activity fees as longas the system by which the fees are distributed is viewpoint-neutral. Inthe case before the Supreme Court, the student plaintiffs had argued thatit was unconstitutional for the University of Wisconsin to force them topay fees to fund groups they disagreed with on political, ideological orreligious grounds. For the purposes of the case, the students agreed thatthe University of Wisconsin’s fee-distribution system was viewpoint-neutral.
In its ruling, the Supreme Court sent the case back to Judge Shabazto decide whether one of the methods the university used to distributestudent fees-a referendum in which the entire student body voted to fundor de-fund certain groups-was viewpoint-neutral. On its face, the Courtsaid, the referendum system appeared to be viewpoint-discriminatory.
The University of Wisconsin abolished the referendum system before Shabazheard the case. But the student plaintiffs asked Shabaz to allow them toamend their case to argue that the university’s student-fee allocationsystem was not viewpoint-neutral according to the standards establishedby the Supreme Court.
Shabaz granted their request and ruled in December that the university’sstudent-fee system was unconstitutional because it gave student governmentleaders too much leeway in allocating funds to student groups.
Shabaz gave the university 60 days to reform the system or face theprospect of allowing individual students to opt out of funding groups withwhich they disagree. In his March decision, Shabaz ruled the changes madeby the university-including the adoption of criteria for determining whethergroups were eligible for student-fee funds, an appeals process for groupsdenied funds and a requirement that student government members take anoath to be viewpoint-neutral-still left too much power in the hands ofthe student government.
“Despite defendant’s efforts, the measures undertaken fail to addressthe central constitutional defect in the segregated fee program,” Shabazsaid in his decision. “The level of the student government’s discretionis unchanged. No proffered changes address the discretion held by the studentgovernment committees in making their eligibility and funding decisions.Determining funding eligibility remains a discretionary exercise.”
The University of Wisconsin filed its appeal April 15 and is still earlyin the process of formulating its case, said Patricia Brady, deputy generalcounsel for the UW system. But she said she believes the system is constitutional.
“We think the system is viewpoint-neutral,” she said. “We thought itwas viewpoint-neutral before, and we made some additional changes duringthe course of this litigation, which I think made it even more securelyviewpoint neutral.”
Brady also noted that the student government’s allocation decisionsmust be approved by both the university’s board of regents and its chancellor.
The Supreme Court did decline to hear a somewhat-related case involvingthe University of Oregon’s allocation of student fees. In that case, theU.S. Court of Appeals for the Ninth Circuit upheld the use of a referendumto determine the student-fee funding levels of the Oregon Student PublicInterest Research Group.
Lorence said that decision should not affect the Wisconsin case.
“The Supreme Court has said in the past that denial of review of a casedoes not set any precedent,” he said. “So the only precedent out thereis the [Wisconsin] decision.”