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Supreme Court hears student fees case

November 9, 1999

WASHINGTON-The nation turned its attention on UW–Madison Nov. 9, as the university defended its mandatory student fee system before the U.S. Supreme Court.

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Background on the case:
Student fees case press kit

The Southworth Project (courtesy The Daily Cardinal)

Rosenberger v. University of Va. (1995)

Abood v. Detroit Board of Education (1977)

The student fees case, Board of Regents v. Southworth, has been closely followed nationally in higher education. The court’s ruling, expected sometime next spring, could have a significant impact on how public colleges and universities collect and disburse student activity fees.

Arguing on the university’s behalf, Wisconsin Assistant Attorney General Susan Ullman told the justices that universities are special places and should be allowed to use student fees to create an educational forum for all kinds of speech to flourish.

“The University of Wisconsin, like public and private universities across the country, has long encouraged a wide range of activities, and some of those activities are supported by [student fees],” Ullman explained.

Because student organizations are funded on a viewpoint-neutral basis, “the First Amendment does not require students to support speech,” Ullman continued.

Jordan Lorence, attorney for the students who sued the university four years ago, argued that mandatory fees force students to support student groups they disagree with politically or ideologically. Lorence cited two Supreme Court decisions involving unions and a state bar association; in both cases, the court ruled that dues paid by members of those groups could not be used to support political speech.

“The university violates the principle against compelled speech,” he argued.

The justices peppered the attorneys with numerous questions during the hour-long arguments. Their questions touched on a range of issues, from how the fees are distributed to the specific activities of student groups and whether those activities constitute compelled speech.

The unique nature of universities was commented on by Justice Anthony Kennedy, who stated that since “ancient times,” institutions of higher education have been places that encouraged and fostered the robust debate of ideas. Justice Antonin Scalia countered by asking if universities “since the Middle Ages” had specifically used student fees to support student groups.

Justice John Paul Stevens asked whether a university’s official student newspaper that receives funds and is later taken over by students with communist views – “which happens all the time,” he said to laughs from the audience – would amount to compelled speech. Scalia asked if it made any difference that universities hire professors with communist views, “which also happens,” he added. And Lorence pointed out that UW–Madison has two student newspapers.

The university’s position that the fees create an educational forum for speech received considerable attention from the court. Justice David Souter questioned Ullman on that point, stressing that most student groups do not receive funding from fees but rather from membership dues. Yet when questioning Lorence, he also stated that “you can’t have dialogue of voices without a forum to speak.”

Justice Stephen Breyer took issue with Lorence’s position that the student fee system was analogous to union members’ dues being used to support partisan political activity. Both he and Souter said the cases were different, because student fees are distributed to a large number of organizations.

“Why doesn’t that difference make a difference?” Breyer asked. “Call it a public forum or not a forum – who cares?”

One of the groups objected to by the plaintiffs, the Wisconsin Public Interest Research Group, received considerable attention from Kennedy and Chief Justice William Rehnquist. They questioned the fact that WISPIRG had received funds through a student referendum and whether that amounted to viewpoint-neutral funding. They also questioned WISPIRG’s activities, which include political lobbying and the hiring of professional staff.

“It seems the funds were used for quintessential political activity,” Kennedy told Ullman, who responded that WISPIRG, like many student groups, is service-oriented.

Several of the questions, including some from Justices Sandra Day O’Connor and Ruth Bader Ginsburg, touched on possible remedies, including using tuition or state revenue to fund student groups and the creation of an opt-out provision, which would allow students to decide which groups to fund.

In a press conference following the arguments, UW System President Katharine Lyall defended the student fee system. She stressed that it is similar to citizens paying taxes to the federal government.

“The fees support the diversity of ideas on campuses,” she said.