Board of Regents, University of Wisconsin v. Southworth, Scott, et al. (03/22/2000)

By: Tara A. Wenner, Medill News Service

Questions presented

Whether the 1st Amendment is offended by a policy or program under which public university students must pay mandatory fees that are used in part to support organizations that engage in political speech.

Brief

During the 1995-96 academic year, students attending the University of Wisconsin-Madison were required to pay a student activity fee of $165.75 each semester. The fee was split up into two categories by the Regents of the University, one nonallocable and the other allocable. The allocable fees were distributed by the Associated Students of Madison, which is the University's student government organization.

Scott Southworth, Amy Schoepke, Keith Bannach, Rebecca Bretz, and Rebecka Vander Werf objected because a portion of the allocable fee was distributed to student-run organizations that engaged in political and ideological activities.

They claimed that 18 of the student-run organizations, including the Wisconsin Student Public Interest Research Group (WISPIRG), the Lesbian, Gay, Bisexual Campus Center, the Campus Women's Center, the Madison AIDS Support Network, the International Socialist Organization, the Ten Percent Society, the Militant Student Union of the University of Wisconsin, and Students of National Organization for Women, engaged in such activities. The University did not dispute that, but claimed that the 1st Amendment protects the rights of the organizations to engage in free speech.

Claiming they did not want to restrict the free speech of the organizations, but wanted to not be forced to pay a fee to organizations whose ideals they opposed, the students filed suit against the University and the Board of Regents. They contended that the mandatory fee violated their rights of free speech and association.

The district court found for the students, granting summary judgment on their free speech and free association claims and enjoining the University from collecting the fee. The court also established a detailed opt-out mechanism.

The 7th Circuit Court of Appeals affirmed, holding that the University's mandatory student fee policy cannot stand. ""Funding of private organizations which engage in political and ideological activities is not germane to a university's educational mission, and even if it were, there is no vital interest in compelled funding,"" Appeals Judge Daniel Manion wrote for a unanimous panel.

The appeals court also concluded, however, that the district court had gone too far in detailing opt-out procedures. Judge Manion reasoned that because the Constitution does not mandate exact procedures and because the University had not refused to comply with any court order, the University Regents ""are free to devise a fee system consistent with our opinion and Supreme Court precedent.""

The U.S. Supreme Court granted certiorari on March 29, 1999, and limited review to the question presented above.

On March 22, 2000, a unanimous Court reversed, holding that the 1st Amendment ""permits a public university to charge its students an activity fee used to fund a program to facilitate extracurricular student speech if the program is viewpoint neutral."" The Court noted however that it did not sustain the student referendum mechanism of the Universitys program, which appears to permit the exaction of fees in violation of the viewpoint neutrality principle."" And on that score, it remanded the case for further proceedings.

""It is inevitable that government will adopt and pursue programs and policies within its constitutional powers but which nevertheless arecontrary to the profound beliefs and sincere convictions of some of its citizens,"" wrote Justice Anthony Kennedy for the Court. ""The case we decide here, however, does not raise the issue of the governments right, or, to be more specific, the state-controlled Universitys right, to use its own funds to advance a particular message. The Universitys whole justification for fostering the challenged expression is that it springs from the initiative of the students, who alone give it purpose and content in the course of their extracurricular endeavors.""

The lead opinion pointed out that the university ""may determine that its mission is well served if students have the means to engage in dynamic discussions of philosophical, religious, scientific, social and political subjects in their extracurricular life,"" and is entitled to impose a mandatory fee ""to sustain an open dialogue to these ends.""

The opinion distinguished earlier rulings that limited mandatory bar fees paid by lawyers and fees paid to unions by nonunion workers to those that were ""germane"" to the purposes of the bar association or union, if they involved political advocacy.

""To insist upon asking what speech is germane would be contrary to the very goal the university seeks to pursue,"" Kennedy wrote.

Three justices issued a separate concurring opinion in which they disagreed with the majority's blanket requirement that all fees be allocated on viewpoint-neutral criteria. Writing for Justices John Paul Stevens and Stephen Breyer, Justice David Souter said the majority should have stoppedwith its rejection of Southworth's 1st Amendment claim.