Second Quarter 2000

Supreme Court Upholds Public University's Mandatory Student Activities Fees

Holland & Knight Newsletter
Michael J. Frevola

As reported in the previous issue, the U.S. Supreme Court recently heard arguments on whether the First Amendment prohibits a public university from funding student groups by imposing upon every student a mandatory student activity fee. In Southworth v. Grebe, 151 F.3d 717 (7th Cir. 1998), the U.S. Court of Appeals for the Seventh Circuit held that the University of Wisconsin was constitutionally prohibited from distributing student activity funds to student groups that engaged in political advocacy or speech without providing a right for objecting students to "opt out" of funding groups that espoused ideas with which the dissenting students disagreed. On March 22, 2000, the Supreme Court reversed, holding unanimously that the University’s funding scheme was constitutional under the First Amendment. The opinion can be found at Board of Regents v. Southworth, 120 S. Ct. 1346 (2000).

The challenged funding program required each student to pay a mandatory activity fee. A portion of that fee was placed in a general fund to be distributed to a wide variety of student groups, some of which engaged in overt political advocacy. Other students, objecting to the dissemination of "their" fees to groups that voiced beliefs with which the objecting students disagreed, demanded a pro rata rebate of their fees and commenced suit in federal district court in Wisconsin. The objecting students argued, and both the Wisconsin district court and the Seventh Circuit agreed, that the University’s funding program violated the First Amendment’s prohibition against "compelled speech," which first was recognized by the Supreme Court in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

In Barnette, the State of West Virginia had enacted a "flag salute" statute by which all public school students were required to salute the U.S. flag. After several students challenged the statute when they were suspended from school for refusing to salute the flag based on religious convictions, the Supreme Court held that the statute was unconstitutional. The Court ruled that, not only did the First Amendment’s Free Speech Clause guarantee the right of citizens to speak freely without fear of persecution, but also that the Free Speech Clause prohibited the government from requiring a citizen to voice support for ideas that the citizen found objectionable. Later, in Abood v. Detroit Board of Education, 431 U.S. 209 (1977) and Keller v. State Bar of California, 496 U.S. 1 (1990), the Supreme Court expanded the "compelled speech" protection to include dissenting members of labor unions and bar associations, respectively, where dissenting members were required to contribute fees to the group entity that espoused ideas with which the dissenting members disagreed. Citing the First Amendment’s proscription against "compelled speech," the Court held that the dissenting members were entitled to a pro rata rebate of their fees where the group had taken positions on issues not "germane" to the purpose for which the group was created.

Holland & Knight submitted a brief amicus curiae to the Court on behalf of the Brennan Center for Justice, a public interest organization affiliated with the New York University School of Law. On behalf of the Brennan Center, Holland & Knight argued that the objecting students’ "compelled speech" claim was not valid under the First Amendment because a representative body distributed the student activity fees in a content-neutral and viewpoint-neutral manner. The University did not take a partisan viewpoint on issues supported by student groups, but merely created a limited public forum to encourage discourse among the student body. By permitting some students to "opt out," the integrity of that public forum would be jeopardized because less popular viewpoints would lose funding. Because free speech is not an issue of majority rule, Holland & Knight argued that the objecting students’ remedy was to form their own groups to promote viewpoints contrary to the ideas with which they objected. In fact, some of the objecting students had done exactly that.

While the Supreme Court recognized that the University’s funding scheme infringed upon the objecting students’ First Amendment rights, the Court also recognized the "important and substantial purposes of the University" served by a program facilitating a wide range of speech. The Court observed that the "germaneness" test, previously employed in Abood and Keller, would be "unworkable" in the University context because it would intrude upon the First Amendment rights of both the objecting students and the University and would result in the imposition of a system "so disruptive and expensive that the program to support extracurricular speech would be ineffective." As part of that conclusion, the Court refused to adopt spatial or geographical boundaries outside which a public university could not fund activities, noting that activities occurring off-campus well may present educational opportunities that the university might deem important to its educational mission. Finally, in concluding that the University’s fee program was constitutional, the Court noted that the objecting students’ interests were protected by the University’s viewpoint-neutral allocation of the student activity fee funds.

One issue remains. A student group – the Wisconsin Public Interest Research Group – was funded by mandatory student activity fees through a separate, distinct account. The creation and maintenance of that account was approved by a student referendum, on which point the Court noted: "[t]o the extent the referendum substitutes majority determinations for viewpoint neutrality it would undermine the constitutional protection the [student activity fee] program requires." Although the Court did not officially rule on this issue, it seems clear from the Court’s opinion that funding student groups out of a fund created by student activity fees will be deemed constitutionally impermissible when the funding decision is based solely on a majority vote.

The University’s brief to the Supreme Court can be found at 1999 Westlaw 393355, and Holland & Knight’s brief amicus curiae on behalf of the Brennan Center can be found at 1999 Westlaw 393287.

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