WISCONSIN — Almost nine months after the U.S. Supreme Court issueda decision affirming the constitutionality of mandatory student activityfee systems at the University of Wisconsin, a district court judge ruledthat the universityís method of allocating fees does not meet theviewpoint-neutral standard imposed by the Court.
U.S. District Judge John C. Shabaz gave the University of Wisconsin60 days to revise the way it distributes activity fees to student groups.If the university does not meet this deadline, Shabaz said he would dismantlethe school’s mandatory fee system.
In an oral opinion delivered on Dec. 8, Shabaz said the University ofWisconsin’s guidelines do not guarantee that the decisions about who getsthe money derived from student fees are viewpoint-neutral. Fry v. Boardof Regents of the Univ. of Wisconsin Sys., No. 96-C-0292-S (W.D. Wis.Dec. 8, 2000).
Patricia Brady, deputy general counsel for the University of WisconsinSystem, said the school had not yet decided whether to appeal Shabaz’sruling.
In November, Shabaz permitted students suing the University of Wisconsinover its mandatory student-fee distribution system to amend their complaintto argue that the university’s method for allocating student fees to campusgroups does not meet the viewpoint-neutral standard the Supreme Court establishedin its March decision.
The students’ previous argument centered on whether it was constitutionalfor public colleges and universities to force students to pay mandatorystudent fees to support groups they disagreed with on religious, politicalor ideological grounds. The case has been watched closely by studentpress advocates because many college newspapers rely on student fees forfunding.
In Board of Regents of the University of Wisconsin v. Southworth,529 U.S. 217 (2000), a unanimous Supreme Court said mandatory student feesystems are constitutional as long as the distribution mechanism is viewpoint-neutral.The justices said allowing students to opt out of funding groups they disagreewith “could be so disruptive and expensive that the program to supportextracurricular speech would be ineffective” and could put the programat risk.
The Court did not look at whether Wisconsin’s fee distribution systemfit the viewpoint-neutrality standard because, going into the case, thestudent plaintiffs agreed the system was viewpoint-neutral in an effortto focus the case on whether such systems are constitutional — no matterhow they are administered. The Court, however, did suggest that one ofthe school’s methods of distributing fees — through a referendum in whicha vote of the majority of the student body can fund or de-fund certaingroups — may not be viewpoint-neutral. The justices directed the U.S.Court of Appeals for the Seventh Circuit to rule on the constitutionalityof this method.
The Seventh Circuit remanded the case to district court Judge Shabazto resolve three issues: whether the referendum method is viewpoint-neutral,whether the students should be allowed to amend their complaint and whetherthe students should be relieved of their original stipulation that thesystem is viewpoint-neutral.
The question of whether the referendum method is viewpoint-neutral isno longer under consideration because the University of Wisconsin agreedto stop using referendums to determine the distribution of fees after theSupreme Courtís ruling.
Shabaz agreed to relieve the students of their original stipulationand allow them to amend their complaint, despite arguments from Universityof Wisconsin attorneys that the students intentionally relinquished a claimthat the system was not viewpoint-neutral four years ago and should beheld to that decision.
“Plaintiffs’ failure to allege a violation of viewpoint neutrality fouryears ago is indicative of their decision to challenge only the collectionof fees and not their distribution,” Shabaz said in his decision allowingthe students to amend their complaint. “Post-Southworth, however, a challengeto the collection of fees necessarily entails challenging their distributionto others.”
Shabaz further said, “It would be a manifest injustice to hold plaintiffsto the stipulation after it gained uncontemplated significance by an appellatedeparture from the existing law.”
Jordan Lorence, the attorney for the students, said he was pleased bythat ruling.
“We’re happy with it,” he said. “The judge basically totally agreedwith us and is allowing us to do what we want. … What we argued and thejudge agreed with was that the Supreme Court specifically referenced thereferendum, but also said that all aspects of the case could be lookedat because the Supreme Court expressed doubt about whether the stipulationon viewpoint neutrality reflected the reality of what was going on at theuniversity.”
In their proposed amended complaint, the students listed four specificaspects of Wisconsin’s fee-distribution system that they believe are notviewpoint-neutral. These include the university’s written policies forbiddingfee distribution to student organizations advocating religious or politicallypartisan ideas, program decision-makers who possess “unbridled discretion”that is inconsistent with viewpoint neutrality, the fact that eligiblestudent groups are not guaranteed a certain amount of funding, and thereality that certain student organizations dominate the “public forum”because they receive significant funding each year while other organizationsespousing conflicting views are not funded.
The University of Wisconsin countered that the students failed to invokea specific incident of viewpoint discrimination in the distribution offees, instead relying on perceived problematic aspects of the system. ButShabaz said the Supreme Court’s decision did not require that actual viewpointdiscrimination be alleged and proven.
Lorence said he decided to amend the complaint, rather than file anentirely new lawsuit, because he knew that Shabaz would be the judge hearingthe case. Shabaz also presided over the students’ original suit againstthe University of Wisconsin’s fee system in 1996 — and ruled in favorof the students. His verdict was upheld by the Seventh Circuit but overturnedby the Supreme Court.
“We have a favorable trial judge right now so we know who we’re gettingif we amend the complaint,” Lorence said. “If we refile, we would not besure which judge this would be assigned to.”
A similar case challenging the constitutionality of the University ofMinnesota’s mandatory student-fee system was dismissed Nov. 9 — the sameday Shabaz allowed the Wisconsin student plaintiffs to amend their complaint.U.S. District Judge Paul Magnuson ruled in Curry v. Regents of the Universityof Minnesota that the lawsuit filed by students against the Universityof Minnesota no longer has merit in light of the Supreme Court’s decisionin the Wisconsin case. Unlike Shabaz, Magnuson rejected an attempt by Lorence,who is also representing the Minnesota students, to amend his complaintto argue that Minnesota’s system is not viewpoint-neutral. Lorence saidthe students will not appeal the dismissal.