Fees and the First Amendment
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.
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."
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.
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.
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.
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
While the debate
on student fees is far from over, a decision by Judge Shabaz is
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.
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,"
for the university plan to appeal the decision.
to Legal Archive 2001