Judge orders U. Wisconsin to revise student fee system to meet Supreme Court standard

School officials have 60 days to create viewpoint-neutral funding method

WISCONSIN -- Almost nine months after the U.S. Supreme Court issued a decision affirming the constitutionality of mandatory student activity fee systems at the University of Wisconsin, a district court judge ruled that the universityís method of allocating fees does not meet the viewpoint-neutral standard imposed by the Court.

U.S. District Judge John C. Shabaz gave the University of Wisconsin 60 days to revise the way it distributes activity fees to student groups. If the university does not meet this deadline, Shabaz said he would dismantle the school's mandatory fee system.

In an oral opinion delivered on Dec. 8, Shabaz said the University of Wisconsin's guidelines do not guarantee that the decisions about who gets the money derived from student fees are viewpoint-neutral. Fry v. Board of 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 Wisconsin System, said the school had not yet decided whether to appeal Shabaz's ruling.

In November, Shabaz permitted students suing the University of Wisconsin over its mandatory student-fee distribution system to amend their complaint to argue that the university's method for allocating student fees to campus groups does not meet the viewpoint-neutral standard the Supreme Court established in its March decision.

The students' previous argument centered on whether it was constitutional for public colleges and universities to force students to pay mandatory student fees to support groups they disagreed with on religious, political or ideological grounds.  The case has been watched closely by student press advocates because many college newspapers rely on student fees for funding.

In Board of Regents of the University of Wisconsin v. Southworth, 529 U.S. 217 (2000), a unanimous Supreme Court said mandatory student fee systems are constitutional as long as the distribution mechanism is viewpoint-neutral. The justices said allowing students to opt out of funding groups they disagree with "could be so disruptive and expensive that the program to support extracurricular speech would be ineffective" and could put the program at risk.

The Court did not look at whether Wisconsin's fee distribution system fit the viewpoint-neutrality standard because, going into the case, the student plaintiffs agreed the system was viewpoint-neutral in an effort to focus the case on whether such systems are constitutional -- no matter how they are administered. The Court, however, did suggest that one of the school's methods of distributing fees -- through a referendum in which a vote of the majority of the student body can fund or de-fund certain groups -- may not be viewpoint-neutral. The justices directed the U.S. Court of Appeals for the Seventh Circuit to rule on the constitutionality of this method.

The Seventh Circuit remanded the case to district court Judge Shabaz to resolve three issues: whether the referendum method is viewpoint-neutral, whether the students should be allowed to amend their complaint and whether the students should be relieved of their original stipulation that the system is viewpoint-neutral.

The question of whether the referendum method is viewpoint-neutral is no longer under consideration because the University of Wisconsin agreed to stop using referendums to determine the distribution of fees after the Supreme Courtís ruling.

Shabaz agreed to relieve the students of their original stipulation and allow them to amend their complaint, despite arguments from University of Wisconsin attorneys that the students intentionally relinquished a claim that the system was not viewpoint-neutral four years ago and should be held to that decision.

"Plaintiffs' failure to allege a violation of viewpoint neutrality four years ago is indicative of their decision to challenge only the collection of fees and not their distribution," Shabaz said in his decision allowing the students to amend their complaint. "Post-Southworth, however, a challenge to the collection of fees necessarily entails challenging their distribution to others."

Shabaz further said, "It would be a manifest injustice to hold plaintiffs to the stipulation after it gained uncontemplated significance by an appellate departure from the existing law."

Jordan Lorence, the attorney for the students, said he was pleased by that ruling.

"We're happy with it," he said. "The judge basically totally agreed with us and is allowing us to do what we want. ... What we argued and the judge agreed with was that the Supreme Court specifically referenced the referendum, but also said that all aspects of the case could be looked at because the Supreme Court expressed doubt about whether the stipulation on viewpoint neutrality reflected the reality of what was going on at the university."

In their proposed amended complaint, the students listed four specific aspects of Wisconsin's fee-distribution system that they believe are not viewpoint-neutral. These include the university's written policies forbidding fee distribution to student organizations advocating religious or politically partisan ideas, program decision-makers who possess "unbridled discretion" that is inconsistent with viewpoint neutrality, the fact that eligible student groups are not guaranteed a certain amount of funding, and the reality that certain student organizations dominate the "public forum" because they receive significant funding each year while other organizations espousing conflicting views are not funded.

The University of Wisconsin countered that the students failed to invoke a specific incident of viewpoint discrimination in the distribution of fees, instead relying on perceived problematic aspects of the system. But Shabaz said the Supreme Court's decision did not require that actual viewpoint discrimination be alleged and proven.

Lorence said he decided to amend the complaint, rather than file an entirely new lawsuit, because he knew that Shabaz would be the judge hearing the case. Shabaz also presided over the students' original suit against the University of Wisconsin's fee system in 1996 -- and ruled in favor of the students. His verdict was upheld by the Seventh Circuit but overturned by the Supreme Court.

"We have a favorable trial judge right now so we know who we're getting if we amend the complaint," Lorence said. "If we refile, we would not be sure which judge this would be assigned to."

A similar case challenging the constitutionality of the University of Minnesota's mandatory student-fee system was dismissed Nov. 9 -- the same day Shabaz allowed the Wisconsin student plaintiffs to amend their complaint. U.S. District Judge Paul Magnuson ruled in Curry v. Regents of the University of Minnesota that the lawsuit filed by students against the University of Minnesota no longer has merit in light of the Supreme Court's decision in the Wisconsin case. Unlike Shabaz, Magnuson rejected an attempt by Lorence, who is also representing the Minnesota students, to amend his complaint to argue that Minnesota's system is not viewpoint-neutral. Lorence said the students will not appeal the dismissal.

reports, Winter 2000-01