U.S. Supreme Court to reconsider University of Wisconsin student fee system

Monday, March 29, 1999

Officials at the University of Wisconsin-Madison have a final shot at defending a student fee system that a federal appeals court has ruled violates the First Amendment rights of several Christian students.

The U.S. Supreme Court announced today it would review the 7th U.S. Circuit Court of Appeals' 1998 ruling in Southworth v. Grebe. The appeals court ruled that three University of Wisconsin Christian students had a First Amendment interest in making sure their student fees are not used by groups they objected to on religious grounds.

The students, represented by the Northstar Legal Center, a conservative public-interest group based in Virginia, had sued the Board of Regents of the University of Wisconsin challenging the student funding system as a violation of their speech and religious-liberty rights.

All full-time university students pay a mandatory activity fee. The Board of Regents distributes the money to qualified student organizations. The Christian students maintained they should not be forced to fund student groups they found morally reprehensible.

The appellate court agreed that the Board of Regents did not have a compelling interest in forcing the objecting students to fund speech they found abhorrent. “In this case, the speech to which the plaintiffs object includes such emotionally charged issues as abortion, homosexuality, and the United States' democratic system,” Judge Daniel Manion wrote for the 7th Circuit. “The source of the plaintiffs' disagreement, as explained at length in their affidavits, is their deeply held religious and personal beliefs.”
Attorneys for Wisconsin, however, have asked the high court to overturn the 7th Circuit's ruling. In its brief urging the high court to reverse the appeals court ruling, the Wisconsin attorney general's office argues that the funding system permits a forum for a wide array of student expression and that all students are expected to fund that forum.

According to Wisconsin, the 7th Circuit “failed to apprehend the critical difference between being forced to support the speech of a particular group and being compelled to provide funding to create a forum for speech by a group, a fundamental distinction that is plainly at the heart of much First Amendment jurisprudence.

“The whole point a forum and its special First Amendment status is that anyone and everyone can use it no matter how offensive their speech may be to some,” the attorney general and two assistant attorneys general continued in their brief. “It then is difficult to see how the First Amendment is offended by requiring politically liberal homosexual students and conservative, Christian students alike to bear the costs of creating a forum for the expression of each other's and all other viewpoints at the University of Wisconsin.”

Susan K. Ullman, one of the Wisconsin attorneys general who helped author the brief before the high court, said she was pleased the Supreme Court had decided to review the situation.

“We hope the high court reverses the 7th Circuit,” Ullman said. “The university should be permitted to collect and distribute student fees the way it currently does. The university funds all student activities and does not intentionally exclude certain student organizations.”

Jordan Lorence, general counsel at Northstar and the attorney that will argue for the three Christian students before the high court, said that the mandatory-fee system did subvert free speech rights and failed to produce true diversity of speech.

“I believe it is a huge flaw for the university to argue that compulsory fees are necessary to promote the expression of diverse viewpoints on campus,” Lorence said. “The 7th Circuit noted that only 29 percent of the student organizations received funding and that there was about 71 percent of student groups that were able to flourish without school funding. The groups that received the big grants of money all had a definite liberal or leftist bent to their political advocacy. If there was an attempt by university officials to make sure speech on campus was diverse, this system was not it. The university has been funding environmental groups, gay and feminist groups.”

Lorence said he was not upset about the high court's decision to review the 7th Circuit ruling, although he did acknowledge a level of risk. Nonetheless, Lorence cited a 1995 U.S. Supreme Court ruling in which Justice Sandra Day O'Connor wrote that there existed “the possibility that the student fee is susceptible to a free speech clause challenge by an objecting student that she should not be compelled to pay for speech with which she disagrees.” The high court ruled in Rosenberger v. University of Virginia that the university could not exclude a Christian student publication from receiving financial support if the university had decided to fund all student publications.

According to Lorence, the high court hinted in Rosenberger that “it wanted a fee case where students are seeking to opt out” of mandatory student fee systems.

O'Connor also noted in Rosenberger that “the existence of such an opt-out possibility not available to citizens generally provides a potential basis for general assessments in support of religion that lie at the core of the prohibition against religious funding, from government funds generally.”