Justices debate history of free speech on campus in student-fee case

Wednesday, November 10, 1999

Scott Southwort...
Scott Southworth

Justice John Paul Stevens recalled his college days 60 years ago at the University of Chicago, when campus newspapers tended to espouse communist views.

Justice Anthony Kennedy went back even further, noting that “since ancient times,” universities had fostered wide-ranging debate.

But in spite of these observations about free speech in academia, it was not clear yesterday that the Supreme Court will rule in favor of the University of Wisconsin in its battle to retain the ability to distribute student-activity fees to campus groups that some students object to. Three conservative students went to court to keep their fee money from going to certain gay rights, environmental and political groups on campus.

Hearing debate in the case of Board of Regents of the University of Wisconsin System v. Southworth, the court seemed unimpressed with predictions that without student-fee money, free speech on campuses would wither and die.

That was the implication of the arguments of Assistant Wisconsin Attorney General Susan Ullman, the lawyer for the University of Wisconsin, who asserted that the student-fee system “encourages a wide range of student activities … through a viewpoint-neutral forum for student groups.”

But Justice David Souter noted that some 70% of student organizations do without any student-fee money at all, and in a personal aside added, “Lots of people invite us to speak and come up with their own money” to pay for justices’ appearances.

And Justice Antonin Scalia, sarcastically responding to Kennedy’s historical observation, asked whether student fees had supported campus groups “from the Middle Ages.”

Jordan Lorence, representing Scott Southworth and the other conservative Christian students before the court, replied that in fact, the use of student-activity fees to support political campus groups was “a very recent innovation,” dating back to the Vietnam War era.

Lorence repeatedly urged the court to rule against “compelled speech” and in favor of students’ “right to conscience,” adding, “You have a constitutional right to stand back and say, ‘I’m not going to participate in this debate.’”

Lorence is hoping that the court’s line of cases articulating a “right not to speak” will prevail in the court’s deliberations. In those cases, involving union dues and bar association fees, the court has said individuals ought to be able to prevent their money from funding speech with which they disagree.

But Souter and other justices seemed to distinguish the student-fee dispute, in which the fees are received by the university and then distributed to a wide range of groups, from those past cases, in which the unions and the bar associations receiving the fees espoused positions themselves.

Wisconsin is hoping the court will view the case through the lens of its doctrine on public forums, in which government would be obliged to distribute funds to campus groups on a viewpoint-neutral basis. Asked if a student chapter of the Ku Klux Klan would get activity-fee money at the University of Wisconsin, Ullman said yes — so long as it agreed to minimal standards including a pledge not to discriminate in its membership. She said the main restriction in the distribution of fee money is that groups receiving it may not engage in lobbying or partisan political campaigns. Some justices, noting that those activities are at the core of the First Amendment, wondered how that restriction squared with Wisconsin’s public forum argument. Ullman said the university “wants to avoid the appearance of being partisan.”

On one aspect of the case, the justices appeared to be in agreement. One $40,000 segment of the student-fee money at the University of Wisconsin was given to the Wisconsin Public Interest Research Group as the result of a student referendum. Justice Stephen Breyer, noting that the First Amendment protects minority views, said the referendum method would tend to favor popular, majority viewpoints. Other justices asked whether that part of the program could be separated from the rest, suggesting they might be inclined to strike down the referendum mechanism while possibly dealing with the rest of the student fee in a different way.

A decision in the case could come anytime before the end of the court’s term next summer.