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A Big Fight Over $3

Student fee ruling could affect laws on bar assocations and unions

David Cole
Fulton County Daily Report
November 3, 1999

If ever there was a case for reviving the amount-in-controversy requirement for federal question jurisdiction, Board of Regents v. Southworth is it.

At issue in Southworth, No. 98-1189, which the Supreme Court hears Nov. 9, is less than $3 per person. That pittance reflects the portion of a mandatory student activity fee that-according to objecting conservative students-supports liberal and progressive student groups at the University of Wisconsin each semester.

The U.S. Seventh Circuit Court of Appeals found that exaction of the fee for use by "political and ideological" student groups violated the objecting students' First Amendment right not to speak. As a result, the university must set up a system to permit all students to reduce their student activity fees by the amount that goes to fund groups with which they disagree.

What is really at issue, of course, is not the two pints of beer that those three dollars might buy the objecting student at the next happy hour, but a conflict of basic First Amendment values.

Southworth pits the ability of a public university, and indeed of government generally, to support a public forum for a diverse range of views against the right of a citizen not to be compelled to support speech with which he disagrees. The 7th Circuit's decision, focusing almost entirely on the latter value, eviscerated the former.

Southworth is one in a long line of cases in which (always conservative) students have objected to the fact that part of the money they are required to pay to attend a public university has supported a student group with which they disagree.

University of Wisconsin students complained that part of their student activities fee went to support such groups as the Wisconsin Student Public Interest Research Group; the Campus Women's Center; the Madison AIDS Support Network; Amnesty International; and the Lesbian, Gay, and Bisexual Campus Center. The fees did not directly support such groups; rather, they went to a student government organization, which then allocated funds to eligible student groups on a viewpoint-neutral basis. But the students argued that their First Amendment right not to speak meant that their fees could not be directed to any "political or ideological" groups to which they objected.

The 7th Circuit agreed. The court reasoned that the student activity fee was like compulsory dues paid to a union or bar association, and followed a line of cases imposing limits on the use of such dues. See, e.g., Abood v. Detroit Board of Education, 431 U.S. 209 (1977); Keller v. State Bar, 496 U.S. 1 (1990).

Abood and Keller hold that a union or bar association may not spend compulsory dues of objecting members on political or ideological advocacy unrelated to the purposes for which the union or bar association was formed. The 7th Circuit reasoned that "political and ideological" student groups are unrelated to a university's educational purpose, and therefore cannot be funded with objecting students' fees.

Transaction costs being what they are, upholding the 7th Circuit might well signal the end of the public forum on state university campuses. No doubt, each student will have a growing list of those groups whose views he'd rather not support, and the cost of managing the rebate system would make collecting the fee pointless. More broadly, the 7th Circuit's principle would make virtually any government support of speech constitutionally impossible, by effectively creating a heckler's veto for objecting taxpayers.

This result can't be right. The First Amendment is designed to protect a robust and wide-open public debate, and it affirmatively requires the government to support speech of all views through access to public forums. Millions of taxpayers' dollars are spent on maintaining public forums every year and each time a public forum is used for a demonstration the state incurs increased security and maintenance expenses. Yet in Southworth, the 7th Circuit effectively ruled that the First Amendment's right not to speak means that those who disagree with the views of speakers in a generally supported public forum may demand a rebate. If that's right, it's not just students who will be lining up to get their money back.

Even if the implications of the 7th Circuit's Southworth decision could be limited to public universities, they would be astounding. There is no meaningful distinction between the use of student activity fees to support a student group and the use of tuition dollars to support a faculty member, a visiting speaker, or a publication. Should universities be required to permit objecting students to demand pro rata rebates for all funds used to support "offensive" speakers, professors, and publications?

The 7th Circuit's error was in treating compelled support for a neutral public forum as indistinguishable from compelled support for a union or bar association expressing particular political viewpoints. Unions and bar associations speak for their members, and accordingly, it is reasonable for a member to be concerned when the union, speaking for him with compulsory funds, espouses a view with which he disagrees. But neither the University of Wisconsin nor its student government, nor the student groups that eventually receive support from student activities fees, even purport to speak for the objecting students. Indeed, the objecting students conceded that no one would think that these organizations were speaking for them.

PROTECTING THE PUBLIC FORUM
The students also conceded that the funds were distributed on a viewpoint-neutral basis. Thus, while the International Socialist Organization received support, so too did the College Republicans. The University of Wisconsin is constitutionally required to allocate the funds on a viewpoint-neutral basis, because the student activities fee funds a public forum for student groups. See Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995).

As a result, if the Wisconsin program is constitutionally infirm, so too is the exaction of taxes to support a public forum. The First Amendment compels the government to spend some of its general revenues on public forums open to all speakers on a viewpoint-neutral basis. Thus, the mostly Jewish taxpayers of Skokie, Ill., were required to support the Nazi march through their hometown, pro-choice taxpayers are required to support pro-life rallies on the Washington Mall, and vice versa. No one would seriously contend that the objectors should receive tax refunds. The exaction is not unconstitutionally compelled speech because the taxpayer is not forced to associate with any particular viewpoint, but merely compelled to support a viewpoint-neutral program that serves the public interest.

The point is exemplified by Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980). There the Supreme Court upheld against a "compelled speech" challenge to a California law that required private shopping mall owners to grant access to their malls for canvassing and speech.

The court rejected the owner's claim that he should not have to support speakers with whom he disagreed by noting that the shopping center was generally open to the public, the state was not requiring the owner to support any specific message, and the owner could expressly disavow association with any particular views expressed.

If a citizen can be required to open his own private property to speakers with whom he disagrees, as long as the requirement is neutral and no one would confuse the speaker's message with the property owner's, then surely students can be required to pay a trivial amount to support a public forum within a state university.

Thus, the 7th Circuit's principal error was to confuse support for a forum with support for a particular point of view expressed therein. The court then compounded that error by finding that support for "ideological and political" student groups as part of a neutral public forum is not "germane" to the university's educational mission.

A union, after all, is constitutionally permitted to spend compulsory dues on nonneutral political speech as long as the speech is "germane" to the union's purpose. Supporting a public forum for students is plainly germane to the educational mission of a university, which is to prepare young people to be informed and responsible citizens.

In the 7th Circuit's view, however, the offending student organizations were primarily political and ideological, and only "incidentally" educational. But this is the wrong inquiry. Even assuming one could neatly divide the world into "ideological" and "educational" speakers, the relevant question is not whether any particular organization is itself political, but whether the university's support for a diverse array of groups, including political organizations, serves an educational function. A speaker series that invited the Republican and Democratic candidates for president to speak on campus would be undoubtedly educational, even though the speakers' motives would be undoubtedly political.

In Rosenberger, the Supreme Court expressly left open the precise question posed by Southworth. But if the court is to remain true to the principle it espoused in Rosenberger -- namely, the constitutional imperative of preserving a public forum in the university setting-it must reverse the 7th Circuit. To rule otherwise would turn the First Amendment on its head and compel silence in the name of avoiding compelled speech.

David Cole is a professor at Georgetown University Law Center and a volunteer staff attorney with the Center for Constitutional Rights.

Copyright ©1999 NLP IP Company -- American Lawyer Media. All rights reserved.

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