University students mount challenges to mandatory fees

Friday, November 6, 1998

Christian students have sued several state universities claiming that their First Amendment rights are violated when their mandatory student fees help to fund campus groups with which they disagree.

In 1995 U.S. Supreme Court Justice Sandra Day O'Connor stated in a concurring opinion in Rosenberger v. University of Virginia that there exists “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.”

In Rosenberger, the high court ruled that the University of Virginia could provide funds to a Christian student publication without subverting the separation of church and state. The court reasoned that once the university decided to fund student publications, it could not exclude publications because of religious viewpoints.

Nonetheless, O'Connor noted that lower federal courts differ over whether students' constitutional rights are infringed when their fees help fund groups they find offensive. O'Connor also said that “the existence of such an opt-out possibility not available to citizens generally provides a potential basis for distinguishing proceeds of the student fees from proceeds of the general assessments in support of religion that lie at the core of the prohibition against religious funding, from government funds generally.”

Because of the split in the lower courts, many legal experts believe the high court will eventually review a mandatory-fee case to determine whether such fees present constitutional problems.

The 2nd U.S. Circuit Court of Appeals ruled in 1994 that students at the State University of New York in Albany could not order administrators to withhold fees from a public research group they disagreed with.

Last week, however, the full 7th U.S. Circuit Court of Appeals voted, albeit with several dissents, to let stand a three-judge appellate panel's decision in favor of three Christian students at the University of Wisconsin-Madison who objected to paying student fees to support groups that offended them, such as the Lesbian, Gay, Bisexual Campus Center.

The 7th Circuit panel ruled in Southworth v. Grebe that universities can constitutionally support student groups through mandatory contributions. The panel, however, concluded that when a group's speech advances political agendas, the university must have a compelling reason for forcing other students to pay for the speech.

In Southworth, the federal court panel decided the University of Wisconsin's educational concerns, such as providing an open and robust forum for debate, were not compelling enough. It therefore ruled the university must allow the Christian students to divert their fees from the groups they found objectionable.

“Here the burden on objecting students' speech is particularly great; the private organizations use the funds to garner support of the public in its endeavors, and as an instrument for fostering public adherence to an ideological point of view which the [students] find objectionable,” Judge Daniel Manion wrote for the panel. “In this case, the speech to which the plaintiffs object includes such emotionally charged issues as abortion, homosexuality, and the United States' democratic system. The source of the [students'] disagreement is their deeply held religious and personal beliefs.”

Manion wrote that “allowing the compelled funding in this case would undermine any right to freedom of belief. We would be saying that students like the plaintiffs are free to believe what they wish, but they still must fund organizations espousing beliefs they reject. Thus, while they have the right to believe what they choose, they nevertheless must fund what they don't believe. The First Amendment protects the right to free speech and the corresponding right not to be compelled to fund private speech.”

Lawyers for the Board of Regents of the University of Wisconsin then asked the entire 7th Circuit to reconsider the case. Last week, the appeals court denied the request. Three of the circuit judges, however, filed dissents.

Judge Ilana Diamond Rovner said the case merited the consideration of the full court. The judge wrote that the appellate panel had misunderstood federal court precedent and that the error would damage the marketplace of ideas on campuses in Wisconsin, Illinois and Indiana.

“Its effect is to impede the ability of public universities to fund student groups that represent a wide range of viewpoints,” Rovner wrote. “The resulting impact on the expression of ideas on campus would undermine the educational mission of those universities, and is not required by the First Amendment.”

Moreover Rovner said the Christian students were not funding speech and ideas of the groups they found offensive. The judge pointed out that it was ultimately student government that decided which groups would receive funds.

“Consider the payment of tuition which might support research or class topics with which a student might disagree,” Rovner wrote. “It is difficult to see how a student could successfully challenge funding to a socialist student group because it advocates socialism, but could not challenge the use of tuition to fund the salary of a professor who publishes articles touting the merits of socialism. Just as the university is not endorsing the views of its professors, so too the student government is not espousing any particular political or ideological speech.

“Rather it is supporting a forum for a wide range of expression,” Rovner said. “Therefore, there is no issue of 'compelled speech' here because the funds are not used by the student government to engage in the speech.”

John Grabel, president of the United Council for the University of Wisconsin, which represents student governments at all UW campuses, said that the 7th Circuit panel's decision was erroneous and that he hoped the Board of Regents would appeal to the U.S. Supreme Court.

“The 7th Circuit erroneously claimed that students are forced to fund other student speech with which they disagree,” Grabel said. “Such a decision misrepresents what student fees are used for. The fees fulfill the universities' educational mission of providing a forum of debate for students to engage in. Students do not subsidize one form of speech, they subsidize an arena for all forms of speech.”

Grabel added that “the ruling is a serious threat to diversity of ideas on campus and the ability to learn.” He also said the 7th Circuit's order to implement a plan to allow students to yank funds from groups they dislike is proving difficult to follow.

“The 7th Circuit is essentially telling the student government to discriminate against some groups based on content of their speech,” he said.

Robin Hubbard, a spokesman for the Center for Campus Free Speech, echoed Grabel's concerns about some of the possible effects of the 7th Circuit ruling.

“The university is not the place where you go to opt out of hearing certain ideas,” Hubbard said. “Student fees create a marketplace of ideas that contribute to the mission of the university by promoting debate and the exchange of new ideas. They're trying to make this case about religious freedom, when in fact their true agenda is to dismantle support for groups on campus and to dismantle debate.”

Jordan Lorence, general counsel at Northstar Legal Center, a conservative public interest group based in Fairfax, Va., is representing the Wisconsin students as well as a group of students at the University of Minnesota.

Like the Wisconsin students, five University of Minnesota students sued the regents of the University of Minnesota in federal court earlier this year claiming the use of mandatory-student fees to fund groups they find offensive, such as the Queer Student Cultural Center, violates their rights to freedom of speech, association and free exercise of religion.

Lorence said the dissenting judges in the 7th Circuit were “simply wrong” to suggest that the objecting Wisconsin students were not directly funding other student groups they found offensive.

“Essentially, the university system is forcing students to give money to private organizations so they can finance advocacy,” Lorence said. “The Supreme Court has indicated in Rosenberger that the mandatory student-fee issue could be solved by granting students the right to opt out.”

Lorence said he understood the University of Wisconsin board of regents' interest in providing for an array of viewpoints on campus but said its mandatory student-fee program was not helping their interests.

“The evidence showed that the groups receiving funding were tilted heavily to liberal or left-wing groups,” Lorence said. “There was no ideological affirmative action taking place; the groups being funded were not underrepresented viewpoints on campus. In fact, the groups receiving the funds were those groups echoing the prevailing orthodoxies at the university.”

According to Lorence, the Wisconsin and Minnesota students are being forced by their universities to fund groups that run counter to their religious convictions. He said this also raises free exercise of religion problems.

“The students object to funding advocacy of ideas they find abhorrent to their religious convictions, such as homosexual advocacy groups,” he said. “Often their religious beliefs require them to go out and preach against these things and yet they are being forced to fund these things.”

Lambda Legal Defense and Education Fund, a national gay rights group, is attempting to intervene in the Minnesota case. A hearing is set for Nov. 20 before the 8th U.S. Circuit to determine whether Lambda Legal Defense will be allowed to defend the student groups.

Patricia Logue, managing attorney for Lambda Legal Defense, said speech of a wide-range of student groups would be chilled if students are permitted to control use of student fees.

“Students are funding a neutral public forum,” Logue said. “And that forum is for all students from all sides of the political spectrum to speak their minds. The purpose is educational and it is a sad commentary if people believe that students can be educated by hearing only those viewpoints with which they already agree. It would be a gay group that loses funding at the University of Wisconsin and a conservative groups that loses funding at another campus.”

The Board of Regents for the University of Wisconsin voted today to appeal the 7th Circuit ruling to the U.S. Supreme Court.