High court: Public colleges may use student fees to fund controversial groups

Thursday, March 23, 2000

The Supreme Court yesterday honored the role of state colleges and universities as First Amendment hotbeds and said they may use student fee money to fund a range of controversial student organizations.

Ruling with surprising unanimity in Board of Regents of the University of Wisconsin System v. Southworth, the court said that student funds can go to diverse groups, even over the objection of individual students who disagree with some of the groups they are funding. A majority of the justices said that a student-fee program is constitutional as long as it is applied with “viewpoint neutrality.”

The decision written by Justice Anthony Kennedy recognized that a core element of a university’s mission is to “to facilitate a wide range of speech.” He distinguished universities from labor unions and bar associations, in which a line of Supreme Court cases has held that objecting members must not be forced to fund speech or political activities they dislike.

Kennedy, who frequently teaches in law school classes, said it would not be unconstitutional for universities to develop checkoff or refund schemes to enable objecting students to keep their money from certain organizations. But that is not required by the First Amendment either, Kennedy said.

The ruling came in a case brought by Scott Southworth and other conservative Wisconsin students who objected to the use of their annual $331 student-fee money for gay rights and other organizations.

“The decision is very sensitive to what state universities are doing when they collect these fees,” said Robert O’Neil of the Thomas Jefferson Center for the Protection of Free Expression and former president of the University of Wisconsin. “It’s a pat on the back for state universities.”

The decision is a victory for First Amendment values on campus, says Thomas Baker of Drake University law school. “To this court, the marketplace of ideas is on the Internet and on university campuses,” Baker said.

“The court recognized that it’s perfectly consistent with the First Amendment for a public university to establish a public forum where student groups with all kinds of views — conservative, liberal and in between — receive funding,” said Ralph Neas, president of the People for the American Way Foundation.

Three justices, led by David Souter, would have gone even further in giving university speech broad First Amendment protection. They would not have imposed a “cast-iron” requirement of viewpoint neutrality in the distribution of student-fee money. Souter was joined by Justices John Paul Stevens and Stephen Breyer.

Mark Goodman of the Student Press Law Center echoed Souter’s concerns, suggesting the court’s emphasis on viewpoint neutrality could permit a university, for example, to refuse to fund all groups that speak out on abortion. “It would be viewpoint neutrality, but it would also be content discrimination,” Goodman said.

First Amendment advocates were also heartened by the decision because the court rejected one feature of the university’s student-fee system allowing student groups to be funded or “defunded” based on a student referendum. Kennedy said that would substitute majority rule for viewpoint neutrality and violate the First Amendment.

“If the university lost this case, the ability to form student groups and have robust debate on campuses would have been subject to majority whim,” said Matthew Coles of the American Civil Liberties Union.

Beatrice Dohrn of Lambda Legal Defense and Education Fund also said, “It’s a great day for freedom of expression when attempts to impose an ideological veto on some speech are defeated.” Lambda represented gay-student rights groups in the case.

Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.