Wisconsin student fees battle rages on

Judge says university has not done enough to make funding distribution fair

WISCONSIN -- The University of Wisconsin at Madison is appealing a federal court's ruling that its student-fee allocation system is still not viewpoint-neutral and therefore unconstitutional.

The case, Fry v. Board of Regents of the University of Wisconsin, 2001 U.S. Dist. LEXIS 3346 (W.D. Wis. March 15, 2001), now returns to the U.S. Court of Appeals for the Seventh Circuit, where it is likely the same three judges who heard the case in 1998 will listen to oral arguments, according to Jordan Lorence, the lawyer representing the three students who are suing the university over its student-fee system.

The appeal follows a March 16 decision by U.S. District Judge John Shabaz, who ruled that the fee system now in place at the university is not viewpoint-neutral because it allows student government members too much discretion in determining which groups are funded and which are not. This leaves student groups at the mercy of the student government for money, Lorence said.

"The point of this money was to enhance the spectrum of opinions expressed on campus," Lorence said. "If you have people doing this, they could skew the money to groups they like."

The U.S. Supreme Court ruled unanimously in March 2000 that public universities may require their students to pay mandatory student-activity fees as long as the system by which the fees are distributed is viewpoint-neutral. In the case before the Supreme Court, the student plaintiffs had argued that it was unconstitutional for the University of Wisconsin to force them to pay fees to fund groups they disagreed with on political, ideological or religious grounds. For the purposes of the case, the students agreed that the University of Wisconsin's fee-distribution system was viewpoint-neutral.

In its ruling, the Supreme Court sent the case back to Judge Shabaz to decide whether one of the methods the university used to distribute student fees-a referendum in which the entire student body voted to fund or de-fund certain groups-was viewpoint-neutral. On its face, the Court said, the referendum system appeared to be viewpoint-discriminatory.

The University of Wisconsin abolished the referendum system before Shabaz heard the case. But the student plaintiffs asked Shabaz to allow them to amend their case to argue that the university's student-fee allocation system was not viewpoint-neutral according to the standards established by the Supreme Court.

Shabaz granted their request and ruled in December that the university's student-fee system was unconstitutional because it gave student government leaders too much leeway in allocating funds to student groups.

Shabaz gave the university 60 days to reform the system or face the prospect of allowing individual students to opt out of funding groups with which they disagree. In his March decision, Shabaz ruled the changes made by the university-including the adoption of criteria for determining whether groups were eligible for student-fee funds, an appeals process for groups denied funds and a requirement that student government members take an oath to be viewpoint-neutral-still left too much power in the hands of the student government.

"Despite defendant's efforts, the measures undertaken fail to address the central constitutional defect in the segregated fee program," Shabaz said in his decision. "The level of the student government's discretion is unchanged. No proffered changes address the discretion held by the student government committees in making their eligibility and funding decisions. Determining funding eligibility remains a discretionary exercise."

The University of Wisconsin filed its appeal April 15 and is still early in the process of formulating its case, said Patricia Brady, deputy general counsel for the UW system. But she said she believes the system is constitutional.

"We think the system is viewpoint-neutral," she said. "We thought it was viewpoint-neutral before, and we made some additional changes during the course of this litigation, which I think made it even more securely viewpoint neutral."

Brady also noted that the student government's allocation decisions must be approved by both the university's board of regents and its chancellor.

The Supreme Court did decline to hear a somewhat-related case involving the University of Oregon's allocation of student fees. In that case, the U.S. Court of Appeals for the Ninth Circuit upheld the use of a referendum to determine the student-fee funding levels of the Oregon Student Public Interest Research Group.

Lorence said that decision should not affect the Wisconsin case.

"The Supreme Court has said in the past that denial of review of a case does not set any precedent," he said. "So the only precedent out there is the [Wisconsin] decision."

reports, Spring 2001