U.S. SUPREME COURT RULES ON MANDATORY STUDENT FEES

Timothy M. Burke, Manley & Burke

In March, the Supreme Court of the United States¹ ruled unanimously that public universities may charge a mandatory student activities fee and use those fees to support a wide variety of advocacy student organizations even though some students may oppose the  positions  advocated by some of the university-funded groups.

In 1996, a group of University of Wisconsin students filed suit, contending that the University could not require them to help fund student organizations that engage in political and ideologic expression which was offensive to their personal beliefs. That argument was successful in the trial court and in the United States Court of Appeals, but the Supreme Court had no difficulty in reaching a different conclusion. The majority opinion in which six justices joined, held clearly that “the First Amendment permits a public university to charge its students an activity fee used to fund a program to facilitate extracurricular student speech if the program is viewpoint  neutral.” Three of the justices, joining  in a concurring opinion, would have gone even further, indicating that a “cast-iron viewpoint neutrality requirement” was not necessary.

[The Supreme Court of the United States ruled unanimously that public universities may charge a mandatory student activities fee and use those fees to support a wide variety of advocacy student organizations even though some students may oppose the positions advocated by some of the university-funded groups]

At issue in this case was only about 20% of the activity fees which were generally left to the student government of the university to allocate (80% went to the student union facilities, health services, intramural sports and so on). A wide variety of organizations received funding, including the College Democrats, the College Republicans, the campus chapter of the American Civil Liberties Union and the International Socialist Organization. Whether or not the principal portion of the student government determined allocation was viewpoint neutral was not at issue since the parties entered into a stipulation in the trial court that the administration of the program was viewpoint neutral. However, since viewpoint neutrality was a clearly articulated condition in the court’s majority decision, the obvious implication is that if it could be established that the administration of the funding for student advocacy groups depended on what particular positions a group advocated, such a program would be a violation of the First Amendment.

The decision is a ringing endorsement for academic freedom. It encourages a wide variety of speech and expression on public campuses, noting:

“The speech the university seeks to encourage in the program before us is distinguished not by discernible limits, but by its vast, unexplored bounds. To insist upon asking what speech is germane would be contrary to the very goal the university seeks to pursue. 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.”

Thus, Justice Kennedy, writing for the court, refused to limit the topics or types of speech that could be engaged in by groups receiving university funding, stating:

“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. If the university reaches this conclusion, it is entitled to impose a mandatory fee to sustain an open dialogue to these ends.”

In the concurring opinion written by Justice Suter, the viewpoint neutrality requirement is criticized, with a comment suggesting that the University should be allowed to exercise some judgment:

“Least of all, does anyone claim that the University is somehow required to offer a spectrum of courses to satisfy a viewpoint neutrality requirement…. The university need not provide junior years abroad in North Korea as well as France, instruct in the theory of plutocracy, as well as democracy, or teach Nietzsche, as well as St. Thomas. Since uses of tuition payments (not optional for anyone who wishes to stay in college) may fund offensive speech far more obviously than the student activity fee does, it is difficult to see how the activity fee could present a stronger argument for a refund.”

The court was troubled by one aspect of the university’s allocation of fees to student advocacy groups. For reasons not clearly explained in the court’s decision, the student government followed a practice of subjecting the funding of certain student groups to a student referendum. As the court noted, that potentially left the question of funding to be decided by majority rule, which could call into question the viewpoint neutrality aspect of the program since only the views of those groups approved by a majority of students might be funded. That aspect of the Wisconsin system was returned to the lower courts for further review.

This decision’s support of viewpoint neutrality and its skepticism of the constitutionality of majority rule student referendum approval of selected student groups once again upholds the First Amendment freedoms of student organization. While not specifically dealing with the right to recognition, the rationale of the Wisconsin decision can, by extension, be used to support the freedom of association, as well  as free speech rights of student groups.

While fraternities and sororities may not generally be viewed as advocacy organizations, their members have freedom of association rights which can be protected. Just as the court implied that funding for an advocacy group not supported by a majority of the students cannot be taken away, it is unlikely that fraternities and sororities could be constitutionally removed from a campus simply because the university or a majority of its students or its faculty do not  like  their membership selection policies or the groups programming, advocacy, purpose or choice of philanthropies. The decision in Wisconsin’s student fee case, particularly when combined with the decision in the Boy Scouts of America v. Dale (reported elsewhere in this edition of Fraternal Law), provides strong support for the First Amendment protection available to fraternities and sororities, at least those on public campuses.

¹ Board of Regents of the University of Wisconsin System v. Southworth, _____ U.S. ______, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000)