[1]WASHINGTON (BP)–A state university violates the U.S. Constitution when it uses mandatory student fees to fund private organizations that some of those students object to on political or religious grounds, the Supreme Court was told in oral arguments Nov. 9.
The court’s decision, which will be announced before the end of its term next summer, could cause a dramatic upheaval in how public universities throughout the country administrate student activity fees. If the justices rule in favor of the students who sued a major Midwestern university, state schools apparently either would have to refrain from funding controversial groups or to offer objecting students an opportunity to opt out of having their fees go to such organizations.
The case began in 1996 when three University of Wisconsin-Madison law students sued the board of regents and the school system for violating their free speech and association rights by requiring them through their student activity fees to support groups whose positions were objectionable to them. The students, all conservative Christians, specified 18 of the about 120 organizations funded by the fees. Among the groups they objected to were pro-homosexual ones, such as the Lesbian, Gay, Bisexual and Transgender Campus Center and the Ten Percent Society; the pro-choice Campus Women’s Center; and the International Socialist Organization.
The students won in both the federal court and the Seventh U.S. Circuit Court of Appeals.
During the arguments before the justices, Jordan Lorence, the lawyer for the students, said people “cannot be compelled to pay for private speech.” Under the Wisconsin system, the students’ “money is converted into [the organizations’] message,” he said.
“Students have a First Amendment right” not to have private groups speak for them, Jordan told the justices. The university has a “constitutional duty to respect” the right of conscience of the students, he said.
Susan Ullman, assistant attorney general for the state of Wisconsin, told the justices the portion of the fees distributed by the student government provided a “viewpoint-neutral forum.” When asked by Associate Justice Antonin Scalia what would happen if a student chapter of the Ku Klux Klan applied for funding, Ullman said such a group would receive funding if it completed the application process correctly.
Some of the justices expressed particular concerns about one of the three ways student fees are allocated. Organizations can receive funding by being approved through a student-body referendum. The Wisconsin Student Public Interest Research Group gained a $49,500 grant during the 1995-96 school year through this method.
Associate Justice Stephen Breyer called it “quite a big problem.” Liberal organizations could get money because they are popular on campus and conservative organizations could not, Breyer said.
Some justices also questioned Ullman’s use of the term “service organization” to describe such groups as WISPIRG. It is “just propagating its views,” said Chief Justice William Rehnquist.
After the Nov. 9 arguments, Katharine Lyall, president of the University of Wisconsin system, told reporters the use of student fees to fund groups is “very important to the basic mission of the university to provide a forum for all kinds” of ideas.
“Without that kind of funding mechanism … it would not be possible, I think, to have nearly the multiplicity of viewpoints or the diversity of ideas that now flourish on the campus,” she said.
Lyall compared the lack of an opt-out policy for objecting students to the government’s decisions on spending. Students do not get to opt out “just as I don’t get a chance to not fund parts of the federal government that I don’t like with my taxes,” she said.
Scott Southworth, one of the three students who originally sued the school, said to reporters, “We really felt that the university engaged in an absolutely unconscionable and unconstitutional policy by forcing students regardless of their political, ideological or religious beliefs to fund the political, ideological, religious and even antireligious activities of private student organizations not directly associated with the university.”
While the university and most of the organizations receiving funding are “very liberal,” his colleagues and he “support the right of any objecting student regardless of their political, ideological or religious beliefs to decide for themselves when and if they are going to fund the political, ideological and religious activities of a private student organization.”
Lorence also told reporters, “We are not asking to censor the speech of any group on campus.”
Southworth and Lyall each were asked what would be the result if his or her side loses.
Southworth said, “I think it would be a significant blow to the First Amendment rights of not only students in this country but of all the citizens of the United States. … We would see the government of the United States forcing black students to fund a KKK organization, the government forcing Jewish students to fund a neo-Nazi organization, just like the government currently forces us, as conservative Christian evangelicals, to fund anti-Christian activities at the University of Wisconsin.”
Lyall said, “If we lose, I think we will then have to find other ways of funding this kind of diversity … but we will have more difficulty providing the kind of diversity of ideas that are now flourishing on campus.
“I think if we get into a check-off system it really does begin to erode the basis for that kind of student pool of funds.”
Though his colleagues and he would be OK about an opt-in system, they would prefer students raise support for the organizations they agree with, Southworth said. “Our preference in this case is to see the university get out of the regulation of the marketplace of ideas,” he said.
Southern Baptist ethics agency head Richard Land agreed with the students’ position that it is unconscionable for the university to force them to “support that which violates their deeply held religious and moral views.”
“Once again, it’s not a question of censorship. It’s a question of sponsorship,” said Land, president of the Ethics & Religious Liberty Commission. “Hopefully the Supreme Court will find students should not be compelled to subsidize that which they find abhorrent.”
The case is Board of Regents of the University of Wisconsin System v. Southworth.