Supreme Court Upholds Student Activity Fees

July 7, 2008 - 8:02 PM

(CNSNews.com) - Public colleges and universities can use money from mandatory student activities fees to finance campus groups that engage in political speech some students find objectionable, the Supreme Court ruled on Wednesday.

The court voted unanimously to uphold the University of Wisconsin's student-fee system that the justices said does not violate any student's free-speech rights.

Had the justices ruled the other way, public colleges and universities across America would have had to stop giving money to controversial student groups or figure out some way to give partial refunds to those students who wanted them.

"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," Justice Anthony M. Kennedy wrote.

"When a university requires it students to pay fees to support the extracurricular speech of other students, all in the interest of open discussion, it may not prefer some viewpoints to others," Kennedy added.

Wire services reported that three of the court's nine members joined in upholding Wisconsin's fees but refused to join the decision's language requiring viewpoint neutrality.

"I agree that the university's scheme is permissible but do not believe the court should take the occasion to impose a cast-iron viewpoint neutrality requirement to uphold it,'' Justice David H Souter wrote in an opinion joined by Justices John Paul Stevens and Stephen G Breyer.

When Wisconsin's student-fees system was challenged in 1996, about $15 of the $166.75 students paid in fees each semester was earmarked for distribution to campus groups by the student government. For a school with about 38,000 students, that created a total fund each semester of around $570,000.

Several law students objected to having some of their money funneled to extremist student organizations. Their lawsuit identified as objectionable 18 of the 125 subsidized campus groups, including the Lesbian, Gay, Bisexual and Transgender Center and International Socialist Organization.

Scott Southworth, the lead plaintiff and now an attorney, said in a recent interview, "As a conservative and a Christian, it was frustrating to see the money going to organizations I personally disagree with."

A federal judge and a federal appeals court ruled against the university, but the nation's highest court ruled in favor of public universities and colleges maintaining their student activities fees.

The ruling will not affect private schools because the Constitution's First Amendment, which guarantees freedom of speech, protects people against government actions only.

When the case was argued before the justices in November, Southworth's lawyer, Jordan Lorence, contended that "students have a First Amendment right not to speak."

But Susan Ullmann, a Wisconsin assistant attorney general, referred to the school's long tradition of providing a forum where many voices can be heard.

Kennedy cited previous Supreme Court rulings that lower courts relied on to rule that students cannot be forced to pay mandatory fees that go to campus groups they do not support.

In 1977, the court said unions cannot compel their members to subsidize political advocacy through mandatory dues. And in 1995, the justices prohibited bar groups from using portions of objecting lawyers' mandatory dues for political lobbying.

"Yet recognition must be given as well to the important and substantial purposes of the university, which seeks to facilitate a wide range of speech," Kennedy stated in his written decision on Wednesday.

In another 1995 decision, the court said public universities and colleges cannot create a "public forum" for students by supplying subsidies and then refuse to fund some groups because of their viewpoints. That ruling was relied on by Kennedy to impose the neutrality requirement.

One aspect of the Wisconsin fee system was not upheld -- one that appears to allow officials to "defund" a campus group if such action is approved by a majority vote of the student body. Allowing a majority vote of students to cancel out a university's commitment to neutrality when allocating student-fee funds would be unconstitutional, the court said.