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Student Fees and the First Amendment

The University of Wisconsin at Madison was back in the news recently on the issue of student fees and whether or not their system for distributing the fees to campus groups violates compelled speech doctrine of the U.S. Constitution.

Last March, in Board of Regents v. Southworth, the Supreme Court unanimously rejected the argument of religious and conservative students at the University of Wisconsin that the university's fee system violated their free speech rights by compelling them to fund student groups they oppose on political, religious or ideological grounds. Writing for the majority, Justice Anthony M. Kennedy ruled that colleges and universities may use mandatory activity fees to finance student groups that engage in political speech, so long as the funding system is "viewpoint neutral."

In approving the fees, Kennedy cited the interest of the university to promote an open exchange of ideas. However, the Court sent the case back to the lower court to examine the universities' distribution method.

In February, U.S. District Judge John C. Shabaz ruled the university had given student government leaders too much leeway in determining which groups receive the fees and struck down the funding mechanism. Judge Shabaz asked the university to come back with a new system of collecting and distributing the fees that would pass Constitutional muster.

In response to Shabaz' ruling, the universities' student government developed new guidelines for avoiding conflicts of interest. The student bylaws were amended to require that a campus group provide a "specific and identifiable educational benefit and service to the students of the university" before receiving funding. Each University of Wisconsin campus would have an appeals process and be required to provide, when requested, a written statement as to why a group was denied funding. Each campus chancellor would also have the authority to veto decisions of the student government.

However, attorneys for students opposed to the fee system argued in District Court that the new process still violates the First Amendment by continuing to allow too much discretion in deciding which groups get student funds.

While the debate on student fees is far from over, a decision by Judge Shabaz is expected soon.


On March 15, Judge Shabaz ruled that the University of Wisconsin at Madison's student fee policy is still unconstitutional, despite changes to its fee distribution system.

"Differentials in funding amounts have no objective root, but reflect only the discretionary judgment of the student government. Admonishments to student government officials and an appeals process are not sufficient to cure this violation," wrote Shabaz. "The complications in this case relate to defendant's pursuit not only of its commitment to fund diverse student speech, but its competing commitment to empower student government to be the arbiter of that funding," ruled Shabaz.

Attorneys for the university plan to appeal the decision.

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