THE SUPREME COURT recently heard arguments in a challenge to the University of Wisconsin's mandatory student activity fee. Wisconsin, like many public universities, requires students to pay into funds that are then distributed among a diverse group of campus organizations. While the system funds conservative and liberal groups alike, some conservative students challenged the scheme because they objected to seeing their money go to left-oriented organizations. To compel them to fund such groups, they convinced the 7th Circuit Court of Appeals, was to coerce speech in a manner that violated the First Amendment.
At one level, this is an easy call. Fostering a robust campus dialogue seems central to the mission of any university. In a healthy institution, it infuses the entire university. The First Amendment should not be read to require that individual students be allowed to opt out of funding campus speech with which they disagree. As long as the funding is truly viewpoint neutral, a state university should be entitled to create the same type of forum that a private university creates. The worst thing the court could do would be to affirm the 7th Circuit's holding that the entire funding scheme is unconstitutional.
The case, however, gets complicated, because some of the funded groups appear to have been doing more than just campus speech. The 7th Circuit found that some were lobbying state governments, and one was sending part of the activity fee money to its parent organization for lobbying Congress. Moreover, the funding does not seem wholly viewpoint neutral either. Groups can receive funding, among the other means, by a campus referendum -- which seems like precisely the sort of popularity contest that should undermine any claim of neutrality. All of this heightens the First Amendment problem. While it seems reasonable to require that students fund the debate on their own campus, it also seems wrong to require them to pay for political activity off campus that offends their consciences.
The line here is almost impossible to draw rigorously in practical terms. But the standard should be in some sense tied to the educational function of the university. To the extent that student activity fees are being spent in a manner wholly divorced from the institution's educational mission, the plaintiffs have a legitimate point. The key is that the university must be entitled to view its educational function broadly. In the vast overlap between political activity and campus dialogue, in other words, the university must be given latitude.