THE CONTINUING CONTROVERSY OVER MANDATORY STUDENT FEES

Timothy M. Burke, Manley & Burke

As reported  in  Fraternal  Law in September  2000, the University of Wisconsin has unsuccessfully struggled attempting to defend the constitutionality of its mandatory student fee system. In 1996, a group of conservative students and alumni challenged the University’s method of distributing student fees to student organizations. Much of the allocation decision was left to student government and it was possible that the funding of specific groups could be subjected to a student referendum.

[The court determined that the University gave unbridled discretion to the elected student government and that discretion “inadequately  protected the principle of viewpoint neutrality and the constitutional rights of objecting students where student fees were compelled.”]

While generally the U.S. Supreme Court, in a unanimous decision,¹ found the University’s system to be constitutional, the existence of the student referendum possibility caused the Supreme Court to remand the case so that a lower court could determine whether or not the funding decisions were content neutral. That is, did the funding decisions depend on whether or not the decision-makers, members of student government, agreed or disagreed with what a student group might advocate?

Among the groups that had previously received funding were the college Democrats, the college Republicans, the campus ACLU Chapter and the International Socialist Organization. The diversity of these groups indicated a willingness to fund groups advocating a wide variety of political beliefs.

In December of 2000, after the case was remanded to the United States District Court for the Western District of Wisconsin, the court found that the then-existing University of Wisconsin program was violative of the First Amendment.² The court determined that the University gave unbridled discretion to the elected student government and that discretion “inadequately protected the principle of viewpoint neutrality and the constitutional rights of objecting students where student fees were compelled.”

The court gave the University one more chance. In the most recent decision this spring, the court noted that since its December decision, the University “made extensive efforts  to bring its segregated fee system into compliance with this court’s ruling.”³ The University created an appeals process for a Registered Student Organization (RSO). It  required that a record be kept for consideration on appeal and that standardized forms be used stating the rationale behind funding decisions. Ultimately, a denied organization could appeal all the way to the University Chancellor who would review decisions de nova. The court also favorably noted that the University had attempted to establish specific criteria for both funding and funding amounts.

Still, the court concluded that the University had not gone far enough to eliminate the possibility of discrimination based on the ideas espoused by the organization seeking funding. As the court put it:

“Despite defendants’ efforts, the measures undertaken fail to address the central constitutional defect in the segregated fee program. The level of 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. Only five of the 12 criteria utilized in such decisions can be labeled objective – the remainder are inherently subjective and malleable and provide for the use of expansive discretion.”

The court voiced a particular concern about organizations being required to “run the gauntlet of subjective criteria” and went on to criticize the university saying:

“Admonishments to student government officials and a de nova appeals process are not sufficient to cure this violation.”

As a result, the court granted injunctive relief to the plaintiffs enjoining the University from compelling plaintiffs to pay those portions of segregated University fees used to fund expressive RSO activities to which plaintiffs object.

The point sharply made by the trial court was that a University must aggressively ensure that decisions to fund student organizations which engage in expressive First Amendment activity must clearly be made in a neutral manner without consideration of the political, moral or social beliefs advocated by the organization seeking funding.

¹ Board of Regents v. Southworth, 529 U.S. 217 (2000).

² Fry v. Board of Regents, 132 F.Supp.2d 749 (W.D. Wis. 2000).

³ Fry v. Board of Regents, 2001 U.S. Dist. LEXIS 3346 (W.D. Wis. Mar. 15, 2001).