Mandatory Student Fees and Freedom of Speech

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In March 22 the U.S. Supreme Court ruled, in Southworth v. University of Wisconsin Board of Regents, that requiring students to pay fees to support campus groups, a common practice at many colleges and universities, is not unconstitutional. The Court has spoken-but did it speak wisely? Let's consider the case and the issues it raises.

Scott H. Southworth is a student at the University of Wisconsin in Madison. A selfdescribed conservative Christian, he objected to the university's use of mandatory student fees to fund campus groups that he found offensive. Relying on Supreme Court precedents in union settings, where the Court has ruled that dissenters from the union's political stances cannot be compelled to pay for them through mandatory dues and fees, Southworth argued that his First Amendment right to refrain from subsidizing the speech of others had been violated. Although the fee was only $330, Southworth maintained on principle that he should not be required to help finance even one cent of the budget for the many statist campus groups for which Wisconsin is famous.

Persuaded by Southworth's analogy to the union dues cases, the trial court invalidated the university's mandatory fee scheme. The university appealed to the Seventh Circuit Court of Appeals and there suffered a severe rebuke. The Seventh Circuit rejected Wisconsin's proposed refund mechanism for objecting students and trounced its argument that subsidizing an array of student groups was a vital part of a university's educational mission.

The university appealed to the U.S. Supreme Court. In a 9-0 decision, the Supreme Court reversed the lower courts. Justice Anthony Kennedy's opinion gave Wisconsin nearly all that it had hoped for.

First, the Court distinguished the case from union-dues cases by arguing that while speech that is outside the ambit of the union's core function is not "germane" to it and not a chargeable expense, all speech is "germane" to a university's "mission" to foster "dynamic discussions of philosophical, religious, scientific, social, and political subjects." Therefore, ruled the Court, if a university chooses to impose mandatory fees to "facilitate a wide range of speech," it may do so.

The Court added a qualification, however. The university must be "viewpoint neutral" with respect to the subsidies it dispenses. Justice Kennedy failed to explain precisely what "viewpoint neutrality" requires, but what apparently he has in mind is that there cannot be an unwritten rule that "only leftists need apply." There will certainly be future litigation over the "viewpoint neutrality" issue. Will Behemoth State U. be able to say that it is "viewpoint neutral" if it gives some money to College Republicans, lots to a bevy of statist organizations, but nothing to (just to make something up) the Lysander Spooner Campus Association? Will a token conservative or free-market presence suffice to satisfy the Court that the university's policy is "viewpoint neutral"? By saying "yes, but . . ." to mandatory student activity fees, the Court has opened up the federal courts to a tremendous wave of new litigation.

The part of Wisconsin's program that the Court questioned in this regard was its student referendum method of funding or defending campus groups. Decisions to give money or not are usually made by the student government, but those decisions can be overridden by student referendum. The Court was troubled by the possibility that putting financial support for possibly unpopular groups to majority vote would be inconsistent with its "viewpoint neutrality" requirement, and for that reason remanded the case for further proceedings.

Does Southworth Make Sense?

The Court acknowledges that there is a First Amendment problem when students are compelled to subsidize "speech which some students find objectionable and offensive to their personal beliefs." (This is a constitutional matter only with tax-supported institutions. …