Civil libertarians hope high court won’t silence campus debate

Tuesday, March 30, 1999

Universities are supposed to be caldrons of strong speech and conflicting ideas.

But some civil liberties groups fear that universities will be producing a far weaker broth if the Supreme Court rules against mandatory student fees in a case it agreed yesterday to hear.

In Board of Regents, University of Wisconsin v. Southworth, the case before the justices, a lower court said students could not be forced to subsidize, through their student fees, campus groups whose views they dislike.

But the concern among student groups — not just in Wisconsin but on dozens of other campuses where the same issue has been raised — is that if students are allowed to “opt out” of fees, student activity funds will dry up and controversial campus voices will be stilled.

“The ruling strikes at the heart of what a university is all about and should be overturned,” said Robin Hubbard of the Washington, D.C.-based Center for Campus Free Speech. “College campuses are the place where we want vigorous debate to thrive.”

But the conservative students who have challenged the fees say that campus debate will be unaffected because most student groups can — and should — thrive without student fee subsidy.

“Seventy-five percent of the student groups on campus raise their own funds, and they learn something in the process,” said Amy Schoepke, one of the Wisconsin students who challenged the fee.

She and the others in the lawsuit claim they are the ones fighting for First Amendment values, which include the right not to be forced to speak, as well as the right to speak freely. Schoepke said she joined the suit when she realized that her student fee money was going to groups that lobbied legislators to take positions that were diametrically opposed to her own views. “We should not be forced to fund speech we disagree with.”

That argument is being made across the country in challenges to student fees at state universities, where, because they are government-funded, First Amendment claims can be made. The Arizona-based conservative Alliance Defense Fund has supported several of the challenges, and they have produced mixed results. While the fees in Wisconsin were struck down, they were upheld in appeals court rulings on challenges mounted in New York and Oregon. The conflicting decisions set the stage for the high court review.

The conservative challengers are convinced they have the law and Supreme Court precedents on their side.

The high court has not ruled on the student fee issue before, but it has dealt with analogous cases in which, for example, union members or lawyers in a state bar association have challenged the use of their dues to advance political causes with which they disagree.

In that line of cases, which includes Abood v. Detroit Board of Education, Keller v. State Bar of California and Lehnert v. Ferris Faculty Association, the court established the principle that individuals cannot be compelled to subsidize the speech of others. But to prevent the problem of “free-riders” — those who refuse to pay dues but benefit from the union or association’s other activities — the court said unions could collect fees that support collective bargaining or other activities that are “germane” to their purpose and do not conflict with First Amendment rights.

Under that test, the 7th U.S. Circuit Court of Appeals found that using portions of the Wisconsin student fee of $165.75 per semester to support groups like the International Socialist Organization and the Lesbian, Gay, Bisexual and Transgender Campus Center was not “germane” and could not be justified under the First Amendment. The large portion of the student fee that goes toward student health services and athletic programs and other activities was not challenged.

Supporters of the student fees hope they can convince the high court that in fact supporting campus groups is germane to the purpose of the university and its fees.

The University of Wisconsin said that supporting political and ideological activities through student fees can be viewed as part of its educational purpose, and thereby meets the germaneness test. Promoting self-governance by students by giving them a role in distributing the fee money is also an educational value, the university says.

Groups that support the fee also advance a more abstract argument: that the student fee money goes to support the platform or the forum that the student groups use to espouse their views, not the views themselves. Under that theory, they argue that the student fee scheme is like paying for an auditorium or a park. Once the forum is built, the argument goes, taxpayers cannot object to individual groups that use it.

“Just like we must pay for a public park, no matter who sets up a soap box there, students can be required to contribute to a university fee system for all student groups, regardless of the recipients,” said Kevin Cathcart of Lambda Legal Defense and Education Fund. Lambda filed a brief in the Wisconsin case on behalf of the gay center. “Today, the target is our client,” said Ruth Harlow, also of Lambda. “Tomorrow, every student group with detractors could lose funding.”

According to Jordan Lorence, lead lawyer for the Wisconsin students challenging the fee, the forum argument is weak, because the university is not completely neutral in handing out the fees. “It’s not like paying for an auditorium,” said Lorence. “The dollars are finite, and the student government is involved extensively in a process of choosing who will receive those dollars.”

The case will be argued in the fall, with a decision unlikely before next year.