Higher education officials seek Supreme Court review of student fees case

Wednesday, November 11, 1998

Expressing support for a wide array of student speech, the Board of Regents of the University of Wisconsin System voted last week to ask the U.S. Supreme Court to overturn a lower-court decision ordering the university to cease funding certain campus organizations.

In August, a three-judge panel of the 7th U.S. Circuit Court of Appeals upheld a district court ruling in favor of three Christian students at the University of Wisconsin-Madison who claimed they should be allowed to withhold their student fees from campus groups of which they disapprove. The students had sued the Board of Regents, arguing the funding plan subverted their free-speech and free exercise of religion rights.

The appellate court panel concluded in Southworth v. Grebe that “allowing the compelled funding in this case would undermine any right to 'freedom of belief,' and therefore “the Regents cannot use the allocable portion of objecting students' mandatory activity fees to fund organizations which engage in political or ideological activities, advocacy, or speech.”

In late October, the full 7th Circuit refused to reconsider the three-judge panel's decision. However, several of the 7th Circuit judges dissented, arguing that the case merited consideration of the full court.

Late last Friday, the Board of Regents on voice-vote decided to continue the legal battle.

Toby Marcovich, a regent, said that the board saw the case as an important First Amendment issue for university officials and students.

“I'm afraid that if the appellate court decision is upheld by the U.S. Supreme Court, [then] only the wealthiest student groups would continue to have free-speech protection,” Marcovich said. “The smaller groups with much less popular ideas would ultimately have less financial support.”

The three Christian students, represented by the Northstar Legal Center, a conservative public interest group based in Virginia, cited more than a dozen campus groups that they said they should not be compelled to fund. Some of those groups are the Campus Women's Center, the Madison AIDS Support Network, the International Socialist Organization, the Progressive Student Network and Amnesty International.

Lambda Legal Defense and Education Fund, a national gay-rights group, filed an amicus or friend-of-the-court brief with the 7th Circuit. Lambda argued that forcing the university to deny student funding to some groups because of their political or ideological positions was “an affront to the First Amendment.”

Lambda's brief said that by permitting “funding for all private speech except that from a political or ideological perspective, the court converts [the University of Wisconsin-Madison] into an unwilling censor.”

Jordan Lorence, general counsel for Northstar, said that the current funding system was inherently unfair to students opposed to funding speech that runs counter to their personal and religious beliefs.

“I think the Board of Regents made a wise decision to appeal the case to the Supreme Court, in that it wants to bring closure to this issue,” Lorence said. “But if the high court takes the case, I believe it will favor the students, not the Board of Regents.”

Lorence said the current funding system at the University of Wisconsin — which allows student government to allocate student fees to registered campus groups — is actually a “subsidy propping up certain groups.” Free speech on campus is not advanced by “forcing students to pay for speech they don't want to,” he said.

Susan Ullman, the state's assistant attorney general who is representing the university, said that students can be compelled to fund a “forum that furthers the First Amendment.” However, if the high court refuses to take the case, she said the state would have to alter its methods for funding campus groups and that “hopefully student speech” would continue.

Lorence said he was not confident that the high court would agree to review the lower- court decisions.

“To me, it seems the University of Wisconsin situation presents a clean case, with no procedural problems, a forceful panel decision with four dissenting opinions, and other federal court decisions from around the country that are in conflict,” Lorence said. “Normally that is a recipe for the high court to grant cert., but the court has been denying review in lot of important cases.”