Lower courts asked to revisit fee cases

Parts of Southworth will be reconsidered to determine if system if viewpoint-neutral

WISCONSIN -- A federal district court will have the opportunity to determine if the referendum system at the University of Wisconsin -- which allows the student body to determine funding for certain student groups -- is constitutional.

Although the Supreme Court upheld the use of mandatory student activity fees to fund campus groups in March with its decision in Board of Regents of the University of Wisconsin System v. Southworth, it directed the lower 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 based on the group's views.

A lower court may also have the opportunity to rule on the university's fee system itself, because, while rejecting the argument that a mandatory fee system constitutes a violation of the First Amendment, the Court said schools are required to ensure their funding systems are viewpoint-neutral.

Jordan Lorence, the attorney representing the students in Southworth, said he believes many advocates of the fee system prematurely proclaimed victory after the Supreme Court issued its ruling in the case because Wisconsin's fee system, as well as those at many other colleges, does not meet the neutrality standard.

"We're now arguing that this viewpoint-neutral criteria that the Supreme Court has imposed on the university is a pretty significant thing," Lorence said. "It means that if the university wants to have a mandatory contribution system, they cannot have discretion in how they give out the money. They have to have some sort of neutral criteria where people are basically automatically entitled to money."

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

Now that the court has ruled that a school can legally have a mandatory fee 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 to reverse the decision allowing the case to continue. Lorence is awaiting the 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 defend its system on this viewpoint-neutrality principle, and I think they're going to have a tough time doing so," he said.

Lorence is also handling another case challenging the fee system at the 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 that they 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 submitted a motion to amend the complaint on a viewpoint-neutrality basis and reopen discovery. The university is opposing this action, and a court should rule on 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 significant restriction on what universities can do," Lorence said.

Fall 2000, reports