The constitutional prohibition against unbridled discretion in distributing student fees accomplishes two First Amendment goals... Seventh Circuit Adds New Constitutional Requirement
for Student Fees

After six years of litigation, including four trips to the U.S. Court of Appeals for the Seventh Circuit and one trip to the U.S. Supreme Court, the University of Wisconsin-Madison has finally gotten a pass from the courts. In a ruling last week, the Seventh Circuit upheld the University’s mandatory student activity fee explaining that "numerous limits on the student government’s discretion for awarding funds" coupled with a "comprehensive appeals process," both added after previous constitutional rulings, "sufficiently limit the University’s discretion so as to satisfy the requirements of the First Amendment."

Nevertheless, while the University of Wisconsin can now move on, the decision exposes potential constitutional problems with mandatory student fees at other public universities across the country.

The case was brought by several University of Wisconsin students and challenged whether the First Amendment imposed any limitations on the distribution of student fee money. The University of Wisconsin, like many other public colleges and universities, collects a mandatory activity fee from all students. The money collected from these student fees is then "distributed to various … [s]tudent [o]rganizations which use[ ] the money to engage in a variety of extracurricular activities, ranging from displaying posters and circulating newsletters, to hosting campus debates and guest speakers, to political lobbying."

Because mandatory student fees compel students to pay for others’ speech, the U.S. Supreme Court has held that the distribution of the fees collected must not discriminate against disfavored viewpoints or subjects. Nevertheless, the Supreme Court did not specify the procedural protections necessary to ensure student fee money is distributed without regard to viewpoint or subject.

The students argued that decision-makers must not have unbridled discretion in doling out student fee money because constitutional limitations are necessary to ensure the funds are distributed in a viewpoint neutral manner. The University, on the other hand, maintained "that the only constitutional requirement for [a] mandatory fee system is that it actually operate in a viewpoint-neutral manner."

The Seventh Circuit held that public colleges and universities must establish and maintain procedural safeguards such as funding guidelines and avenues of prompt impartial review of student fee allocations. Moreover, the necessity of these safeguards is not only "a component of viewpoint neutrality" required by the First Amendment and identified by the U.S. Supreme Court, but is also "a separate constitutional mandate" of its own. Thus, it is not enough that a public university’s "mandatory fee system … actually operate[s] in a viewpoint-neutral manner." Instead, "[t]he First Amendment [also] prohibits the vesting of … unbridled discretion" in decision-makers who distribute mandatory student activity fees at public colleges and universities.

The constitutional prohibition against unbridled discretion in distributing student fees accomplishes two First Amendment goals: avoiding self-censorship and preventing discrimination on the basis of content or viewpoint.

Without constitutional protection from unbridled discretion, "students [may] self-sensor their activities and speech to avoid being denied access to the forum of money" provided by the student activity fees, worried the Seventh Circuit. "Moreover, if the student government lacks specific and concrete standards to guide its funding decisions, it could use [such] unbridled discretion to discriminate on the basis of viewpoint" or content, again running afoul of the First Amendment.

The decision of the Seventh Circuit means that, at least in that circuit if not nationwide, student fee systems at public universities are presumptively unconstitutional if they fail to limit decision-makers with viewpoint neutral funding standards and prompt impartial review. As a result, the decision actually kicks the door wide open to new legal challenges on numerous other campuses where student fee money is doled out wholly unchecked by any impartial criteria or oversight.

October 11, 2002
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