Student Fees and Free Speech

Not all important and original ideas are born in a university environment, but enough are that there is a strong public interest in maintaining universities as islands open to the freest possible inquiry. The ethos of a university must be a commitment to civil, respectful, and open discourse and exchange. Certainly, there are many half-baked ideas cooked up on campus, but that is how the kilns of student minds are made. Hence, there is every reason to be intensely concerned about the inability of certain people to speak on campus without being shouted down, university speech codes which protect the current campus orthodoxies, or other potential threats to free speech on campus.

The recent case of the University of Wisconsin v. Southworth et al. poses an interesting problem. Scott Southworth was a Christian law school student at the University of Wisconsin when he complained about the use of his mandatory student activities fee to support groups he profoundly disagreed with. The University of Wisconsin claimed that funding "registered student organizations" encouraged debate, advocacy, and the introduction of a diversity of ideas on campus. These functions are a part of the mission of the University.

The lower courts agreed with Southworth. The Federal District Court granted Southworth a summary judgment and enjoined the University of Wisconsin from funding any student organizations involved in political or ideological advocacy. This month the US Supreme Court reversed the lower federal court and ruled unanimously in favor of the University. However, the victory may still profoundly affect the way student activities fees are distributed and actually encourage future litigation.

Representing the Court, Justice Anthony Kennedy wrote that:

"The University may determine that its mission is well served if students have the means to engage in dynamic discussion of philosophical, religious, scientific, social, and political subjects in their extracurricular life."

Nonetheless, the Court did acknowledge the significant First Amendment claim of objecting students. The granting of funds to advocacy organizations by a public university would violate the Free Speech rights of students if done unfairly. Specifically, Kennedy wrote, "the principal standard of protection for objecting students, we conclude, is the requirement of viewpoint neutrality in allocating funding support." Hence, if a state university used mandatory student activities fees to systematically propagate a certain set of ideas, the First Amendment rights of objecting students may be violated.

In this particular case, the Court refrained from ruling on whether the University of Wisconsin distributed funds in a viewpoint-neutral way. They assumed for the purpose of this decision that the funds were distributed in this way. They also remanded this case "for further proceedings consistent with this opinion." The question of whether the University of Wisconsin's particular implementation of student activities fees meets constitutional muster is still an open question. Southworth et al. may choose to argue that the University was not viewpoint-neutral in its distribution of funds to student organizations. Indeed, what "viewpoint neutrality" means in this context is still subject to interpretation. Does it mean that all student groups must receive equal funds? Does it mean that there is some test on the number of Liberal or Conservative groups funded? Can students vote on the distribution of funds or does this violate viewpoint neutrality by preferentially granting funds to popular organizations?

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