Supreme Court upholds student fees


Judges unanimously vote to support college's funding system for campus groups





WASHINGTON, D.C. -- Colleges and universities may use mandatory student activity fees to finance campus groups that engage in political speech as long as the funding system is viewpoint-neutral, the Supreme Court ruled in March.

In a unanimous decision, the Court rejected the argument of Christian and conservative students at the University of Wisconsin at Madison that the university's fee system violated their First Amendment rights by forcing them to fund groups they disagree with on political, religious or ideological grounds.

Writing for the majority, Justice Anthony M. Kennedy said, "The First 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's ruling in the case, Board of Regents of the University of Wisconsin System v.Southworth, reversed an earlier decision by the U.S. Court of Appeals for the Seventh Circuit, which had held that the university's fee system was unconstitutional.

In the opinion, Kennedy cited the clear interest of the university in promoting the exchange of ideas. Although the university's fee-allocation program inevitably subsidizes speech with which some students disagree, Kennedy said, a Court-imposed system allowing students to opt out of contributing to groups they oppose "could be so disruptive and expensive that the program to support extracurricular speech would be ineffective."

"The First Amendment does not require the University to put the program at risk," he said.

Kennedy distinguished the Wisconsin case from earlier rulings that said mandatory bar association fees paid by lawyers and fees paid to unions by nonunion workers could not be used for political advocacy by pointing out that unlike unions and bar associations, one of the primary purposes of a university is to facilitate the discussion of ideas.

"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 campus life outside the lecture hall," Kennedy said. "If the university reaches this conclusion, it is entitled to impose a mandatory fee to sustain an open dialogue to these ends."

Under the ruling, universities may implement a funding system that allows individual students to opt out of funding certain groups, but they are not required to do so.

The case stems from a lawsuit Scott Southworth filed against the University of Wisconsin at Madison for refusing to waive his $331 annual student activity fee for the 1995-96 term. Southworth, a law student at the university at the time, said he particularly objected to his fees being used to fund the UW Greens, the Campus Women's Center, Amnesty International and the Lesbian, Gay, Bisexual and Transgender Campus Center.

Southworth's attorney, Jordan Lorence, said he was disappointed by the Court's decision in the case. He said he believes that students have a right 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-conscience issues 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 people overjoyed that we lost did not really think through what it means to be viewpoint-neutral," Lorence said. "The Court was very clear that there are rights of students that need to be protected, and I don't think they are protected" under many universities' current fee-allocation systems.

The Court did not uphold one aspect of the University of Wisconsin's fee system, in which a vote by the majority of the student body can take funding away from or give funding to a campus group. Kennedy said this process did not appear to be viewpoint-neutral and could "undermine the constitutional protection the program requires." The justices directed a lower court to rule on the constitutionality of this funding method.

Fully 70 percent of the nation's college and universities use student fees to fund campus groups, according to the National Association for Campus Activities. Had the Court ruled in favor of the students protesting the fee system, many public colleges would have been forced to revise, or even eliminate, their student-fee programs, possibly changing them to allow individual students to select the groups they want to fund or excluding groups with political, ideological or religious objectives entirely.

Many free-press advocates had worried that a ruling in favor of the students would have a negative impact on the college student news media. If the Court had ruled the other way, student media could have lost funding or been prohibited from publishing editorials or endorsing candidates for office.

"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 student newspapers based on the perception of political or other content-type matters," said Chris Carroll, president of College Media Advisers. "I felt as though we dodged a bullet."

The Court's decision in the Wisconsin case will likely affect the outcomes of several cases challenging the constitutionality of student-fee systems currently pending in federal courts.

Lorence, who is also representing students in another student-fee case, Curry v. Regents of the University of Minnesota, said that case is not over. He said Minnesota's fee system does not meet the viewpoint-neutral standard the Court imposed in the Wisconsin case.

The U.S. Court of Appeals for the Ninth Circuit was waiting for the Supreme Court's decision in this case before deciding whether to rehear a student-fees case brought by students at the University of Oregon. A three-judge panel had upheld the university's mandatory student-fee system in February. It is unlikely that the full court will vote to rehear the case.


Text of the Supreme Court's decision in Board of Regents of the University of Wisconsin System v. Southworth can be found online at http://supct.law.cornell.edu/supct/html/98-1189.ZO.html.


reports, Spring 2000