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Student fees may be used to fund objectionable groups, justices say

WASHINGTON (BP)–Public colleges and universities may use mandatory student activity fees to fund organizations Christian and other students object to on ideological or political grounds, the U.S. Supreme Court ruled March 22.

The unanimous decision by the justices overturned opinions by both a federal court and a U.S. court of appeals that the free-speech and association rights of three law students had been violated by the University of Wisconsin-Madison. The students, all conservative Christians, had specified 18 student-funded organizations they objected to, including 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.

In an opinion written by Associate Justice Anthony Kennedy, the high court acknowledged the students were required to subsidize “speech they find objectionable, even offensive,” but it said the lower federal courts based their rulings on Supreme Court precedents that did not apply in the university setting.

The university “may determine that its mission is well served if students have the means to engage in dynamic discussions of philosophical, religious, scientific, social and political subjects in their extracurricular campus life outside the lecture hall,” Kennedy wrote. “If the university reaches this conclusion, it is entitled to impose a mandatory fee to sustain an open dialogue to these ends.

“The university must provide some protection to its students’ First Amendment interests, however. The proper measure, and the principal standard of protection for objecting students, we conclude, is the requirement of viewpoint neutrality in the allocation of funding support,” Kennedy wrote.

Both parties, the university and the students, agreed the program “respects the principle of viewpoint neutrality,” the court said.

Jordan Lorence, the lawyer representing the students, said the justices apparently did not discern the imbalance in funding.

“What I thought we were stipulating to is that the university enforced no formal policies that excluded people from applying for money, but we made it clear the money all seemed to go to left-wing groups, so there’s something inherently unfair about it,” Lorence told The Washington Times.

“Even if everything is scrupulously neutral, I think people have a right to remain silent and not enter into a debate. These issues should be left to a student’s conscience.”

In his opinion, Kennedy said if the school “decided that its students’ First Amendment interests were better protected by some type of optional or refund system it would be free to do so. We decline to impose a system of that sort as a constitutional requirement, however.”

When the case was argued before the high court in November, Scott Southworth, one of the students who brought suit, told reporters his colleagues and he would be OK about an opt-in system but would prefer students raise support for the organizations they agree with. “Our preference in this case is to see the university get out of the regulation of the marketplace of ideas,” he said.

“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,” Southworth said.

Southern Baptist ethics agency head Richard Land had expressed support for the students’ position, agreeing it was wrong 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.

A lawyer for the American Family Association expressed hope the justices may have left an opening for the students to have the stipulation their side agreed to removed.

The high court “was crystal clear in its pronouncement that if the program was not viewpoint neutral it would be struck as unconstitutional,” said AFA’s Brian Fahling in a written statement. “If that stipulation is withdrawn and does not continue to control the case, then the university loses.”

If the justices had ruled in favor of the students, it could have caused a dramatic upheaval in how public universities throughout the country administrate student activity fees. State schools apparently either would have had 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 high court did not affirm one of the three ways student fees are allocated. Organizations apparently can be approved or rejected for funding by a majority vote of the student body. “To the extent the referendum substitutes majority determinations for viewpoint neutrality it would undermine the constitutional protection the program requires,” Kennedy wrote. The court sent back that portion to the Seventh U.S. Circuit Court of Appeals.

In overruling the lower courts, the Supreme Court said they had misapplied decisions that found required fees from nonunion members and lawyers could not be used by unions and bar associations, respectively, to fund political advocacy. Those activities would not be “germane” to the association’s mission, the high court ruled in the latter case.

“To insist upon asking what speech is germane would be contrary to the very goal the university seeks to pursue,” Kennedy wrote. “It is not for the court to say what is or is not germane to the ideas to be pursued in an institution of higher learning.”

Three associate justices — John Paul Stevens, David Souter and Stephen Breyer — agreed with the decision but, in a concurring opinion by Souter, disagreed the high court should “impose a cast-iron viewpoint neutrality requirement to uphold” the activity-fee program.

The case is Board of Regents of the University of Wisconsin System v. Southworth.