A conflict between a conservative Christian law student and a public university famous for its liberalism arrives at the Supreme Court this week, in a free speech controversy that could affect campuses nationwide and possibly impact government funding of political or artistic expression.
The dispute concerns whether the University of Wisconsin at Madison--or any other state school--can force students to pay "activity fees" that go, in part, to groups engaging in political advocacy the students may oppose, on topics such as abortion or environmentalism. Provoking dozens of "friend of the court" briefs, the case is significant mostly for America's campuses, where ideas are exchanged and society's dilemmas debated. But an eventual ruling could touch on recurring controversies over government funding at all levels for free expression and the arts.
The case before the court began when law student Scott Southworth objected that his student activity fees were indirectly supporting several liberal University of Wisconsin student groups, including the UW Greens, Amnesty International, the Campus Women's Center and the Lesbian, Gay, Bisexual and Transgender Campus Center. "It was a gut-level thing," Southworth said, explaining that he opposed "being forced to support the propagation of opinions that I disagree with--on an ideological basis, a political basis and especially a religious basis."
Many public universities collect student activity fees that are funneled to campus organizations for their various projects and pursuits, and as a result, several other states have joined the case. One "friend of the court" brief, signed by 15 states including Maryland, defended student funding for campus groups by arguing that "these programs further educational goals by fostering 'a marketplace of ideas' . . . [and] exposing students to a variety of viewpoints."
Scores of other education, labor, and political groups have also jumped in with amicus briefs. The Virginia-based American Center for Law and Justice asserts that forcing someone to pay fees for political advocacy he opposes "is a fundamental violation of virtually every right in the First Amendment." The American Civil Liberties Union, on the other hand, contends that Southworth and his fellow protesters "are in the same position as taxpayers who object to the use of a municipal park for a controversial political rally. They can certainly make their objection known, and even use the forum as their vehicle for doing so, but they may not express their displeasure by withholding taxes."
Southworth, a native of Wisconsin and the first in his family to go to the state's flagship university, said he first tried to avoid paying the 1995-96 annual student fees of $331.50 by writing a letter to the school administration. When he received no response, Southworth sued along with two other students, alleging that their First Amendment rights of free speech, association and religion had been violated. They won in lower courts.
The U.S. Court of Appeals for the 7th Circuit, whose ruling the justices will review this week, traced Southworth's right to avoid paying the fees to a line of cases upholding the "right not to speak." The court relied, for example, on two past Supreme Court decisions, one that stopped a government employees' union from spending dues on ideological causes its members opposed and another that prohibited a state bar association from using mandatory dues to pay for political activities with which some members disagreed.
In its appeal, the University of Wisconsin argues that it is not forcing anyone to "speak" through the activity fees, but rather ensuring a public forum for all students. Officials at the university, a hub for political opposition to the war in Vietnam and an enduring bastion of liberalism, argue that the regents long ago determined that to encourage debate and the expression of diverse viewpoints, they should subsidize a variety of student groups, including ones with liberal and conservative political agendas. The university contends that without its subsidies, some student voices wouldn't be heard and healthy debate would dry up.
As a result, the university says, students can't avoid paying the fees that support campus groups "any more than they enjoy the right not to pay tuition that results in courses being taught with whose content they disapprove."
University officials have urged the high court to rely on a separate line of cases for its decision, recommending that it take a page from a ruling involving the University of Virginia four years ago. In that case, the justices said the school breached the First Amendment by refusing to provide funds for a student Christian magazine even though it subsidized nonreligious student publications. The court ruled that when a university sets up a general policy for disbursing student activity funds, that fund becomes the equivalent of a public forum, and the university must subsidize secular and religious publications on the same basis.
Susan K. Ullman, the lead counsel for the university, told the court in her brief that it follows from that case that students cannot opt out of funding once the university has established a forum for broad debate. If students have complaints, she said, the answer isn't less speech, but more speech: "If [the students] do not like what the International Socialist Organization is saying, they should obtain funding for their own student group to advance their view of the truth."
Jordan W. Lorence, of Fairfax, who will represent Southworth at the court, counters that the university is forcing individuals to endorse ideologies with which they may disagree and pressed the court to affirm the 7th Circuit. Southworth, now 27 and a member of the bar, added, "The Constitution doesn't guarantee you a right to speak with anyone's else's money."
The Supreme Court will hear arguments on The Board of Regents of the University of Wisconsin v. Southworth on Tuesday.