Christian students claim student fees are unconstitutional

Tuesday, November 2, 1999

The Supreme Court is preparing to weigh arguments concerning whether several conservative Christian students at the University of Wisconsin-Madison have any constitutional rights to demand a refund from the school of a small amount of their student fees used to support liberal student groups.

The students, represented by several socially conservative and evangelical nonprofit groups, will argue before the high court on Nov. 9 that the mandatory student-fee system at the University of Wisconsin-Madison, which helps fund all university-recognized student groups, subverts their free-speech and religious-liberty rights.

Supporters of the University of Wisconsin fee system, which include the American Civil Liberties Union and the Student Press Law Center, will claim that the Christian students and the groups representing them are trying to stifle ideas that conflict with Christian dogma and, if allowed to, will end up curtailing academic expression and thought.

In August 1998, a three-judge panel of the 7th U.S. Circuit Court of Appeals ruled in Southworth v. Grebe that the Christian students should be allowed to withhold their student fees from campus organizations they find morally reprehensible. The appellate court said the fee system unconstitutionally undermined the students’ “freedom of belief.”

Wisconsin officials want the Supreme Court to nullify the 7th Circuit ruling. The state’s attorney general argues, in a brief before the high court, that the 7th Circuit’s decision “undermines the traditional role of universities as centers of free speech and the tradition of student-run activities.” The attorney general also notes that the 7th Circuit decision conflicts with other circuits, such as the 5th Circuit, which ruled in 1992 that a mandatory student-fee system “creates a forum for public discussion of university-related issues that can stimulate uninhibited and vigorous discussion on matters of campus and public concern.”

The Alliance Defense Fund, which is paying most of the Wisconsin Christian students’ legal costs and has encouraged Christian college students nationwide to challenge mandatory fees on speech and religious-liberty grounds, says public universities have undermined the teachings of the New Testament.

The founders of the Alliance Defense Fund include the fundamentalists James Dobson, founder of Focus on the Family, and Don Wildmon, founder of the Mississippi-based American Family Association. The Alliance Defense Fund’s Web site states that its reason for challenging mandatory fees is to “eliminate millions of dollars from those who oppose biblical values, religious freedom and the spread of the gospel.”

Supporting the Alliance’s cause are the Liberty Counsel and the National Legal Foundation, both evangelical groups which frequently argue that government tries to keep Christianity out of the public square.

The National Legal Foundation’s Web site states the group’s mission “is to prayerfully create and implement innovative strategies that, through decisive action, will cause America’s public policy and legal system to support and facilitate God’s purpose for her.”

The group’s president, Steven W. Fitschen, also regularly calls for federal judges he deems hostile to Christianity to be impeached. Recently Fitschen denounced U.S. District Judge Ira DeMent as a “tyrant” who “is no longer worthy of holding judicial office.” According to Fitschen, DeMent had “struck down a popular Alabama law that allowed voluntary student prayer.” In reality, DeMent, a Republican appointed to the federal bench by former President George Bush, invalidated an Alabama law that allowed public school teachers and administrators to encourage and sponsor student prayer during school.

In their friend-of-the-court briefs before the high court, the National Legal Foundation and the Liberty Counsel argue that Christian students at public universities have rights under the religious-liberty clauses of the First Amendment to control how their student fees are used.

“At the heart of this case is a proposition that was settled long ago by those who founded this nation: government cannot compel individuals to endorse or pay for ideas that violate their freedom of conscience,” the National Legal Foundation argues. “Here, the UW-Madison student fees program does just that. Under the political theory upon which this nation was founded and under the precedents of this court, the mandatory funding of political and ideological speech with which individual students disagree is clearly an unconstitutional compulsion.”

An array of national education and civil rights groups agrees with University of Wisconsin officials that the 7th Circuit ruling undermines free speech on campus. They argue that the challenges to student-fee systems have emanated from socially conservative Christian groups that are seeking to squelch the airing of diverse ideas on college campuses.

The Student Press Law Center, a nonprofit group that advocates free-expression rights of student journalists, argues in its friend-of-the-court brief that numerous federal courts have ruled that student fees are necessary to support student news media and are germane to a university’s educational mission. Citing many studies, the group argues that most student publications rely on some funding from student fees. If the 7th Circuit’s ruling is upheld, the group argues, student media will suffer.

“Elimination of student fee support for the student press would destroy most campus publications,” the Student Press Law Center argues. “The simple fact is that virtually all student publications provide some political or ideological commentary or opinion. Those opinions frequently offend, anger or tantalize someone, and often launch vibrant debate on campuses.”

Citing the U.S. Supreme Court’s 1995 decision in Rosenberger v. Rector, the Student Press Law Center maintains that student groups receiving funds from student fees should not be regulated as long as there is a neutral process for handing out the fees.

In Rosenberger, the high court ruled that where funds from student fees are given to campus groups, school officials couldn’t withhold funds from campus groups simply because of ideas espoused by those groups. The funds must be disseminated in a neutral manner, the court concluded. “The quality and creative power of student intellectual life to this day remains a vital measure of a school’s influence and attainment,” Justice Anthony Kennedy wrote for the majority. “For the university, by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the nation’s intellectual life, its college and university campuses.”

The American Civil Liberties Union and the People for the American Way, a liberal advocacy group, also argue in briefs before the high court that the officials at the University of Wisconsin could not constitutionally withhold student fees from groups simply because the groups’ ideas might offend some Christians.

The Christian students “have no right to a rebate on whatever relatively small portion of their mandatory fee is actually used to support the political and ideological groups they have identified as objectionable,” the ACLU argues. “In the factual context of this case, [the Christian students] are in the same position as taxpayers who object to the use of a municipal park for a controversial rally. They can certainly make their objection known, and even use the forum as their vehicle for doing so, but they may not express their displeasure by withholding taxes.”