In a decision which may significantly impact the right of colleges and universities to assess mandatory student activity fees, the Seventh Circuit Court of Appeals has ruled that the University of Wisconsin-Madison's student activity fee policy, as applied to fund private groups which engage in "political and ideological activities, speech and advocacy," violated the First Amendment rights of objecting students. Southworth v. Grebe, F.3d (Nos. 97-3510 and -3548, 7th Cir. 1998).
Students enrolled full-time at UW must pay a student activity fee in order to receive their grades or graduate. The UW Board of Regents classifies part of the student fee revenue as "non-allocable" and uses that revenue to cover expenses such as debt service, fixed operating costs of auxiliary operations, and student health services. The Regents delegate distribution of "allocable" student fees to the Associated Students of Madison or ASM, as the official student government body, which uses allocable fees to fund its budget and the General Student Service Fund (GSSF). The ASM disburses GSSF monies to various qualified registered student organizations which apply for funding.
The plaintiff students in Southworth objected to GSSF funding 18 identified groups which, the evidence showed, engaged in political and ideological activities. The groups included WISPIRG, the Campus Women's Center, UW Greens, Madison AIDS Support Network, International Socialist Organization, Amnesty International, Students of National Organization for Women, and Madison Treaty Rights Support Group.
The Regents defended using mandatory fees to fund the activities of the objected-to groups, asserting that the First Amendment protects the rights of those organizations to engage in political speech. The court agreed that such organizations are free to engage in advocacy, but framed the issue as whether the Regents can compel objecting students to fund it.
The court analyzed the fee policy under a three-part test:
- Is the challenged activity germane to the Regents' asserted interest?
- Is the compelled fee justified by a vital policy interest? and
- Does using compelled fees to fund a private organization which engages in political/ideological activities significantly burden free speech?
As to the first part of the test, the Regents asserted an interest in education, and contended that funding the challenged organizations is germane to education because doing so promotes diverse expression which is "educational." The court held that "germaneness" cannot be read so broadly, stating that "mere incantation of the public "education" cannot overcome a tactic repugnant to the Constitution, of requiring objecting students to fund private political and ideological organizations."
The Regents did not satisfy the second prong of the test, either. While the Regents asserted a policy interest in allowing students to share in the running of the UW system, this interest did not justify compelling students to fund private advocacy organizations, according to the Seventh Circuit. The court noted that an important part of governance and education is the value of individualism and dissent: "Yet despite the objecting students' dissent, they must fund organizations promoting opposing views or they don't graduate."
Finally, the court held that the compelled funding greatly burdens the objecting students' freedom of speech, noting that the private organizations use the funds to garner public support for their endeavors and to attract adherents to an ideological point of view which the dissenting students find objectionable. UW's fee system means that even though students are free to believe what they wish, they still must fund organizations espousing beliefs they reject. The court also rejected as "irrelevant" the Regents' argument that there was no evidence that student fees were used to fund the actual political and ideological activities the organizations promoted, asserting that "the First Amendment is offended by the Regents' use of the objecting students' fees to subsidize such organizations."
Although it ruled in favor of the objecting students, the court vacated the district judge's injunction which established detailed administrative procedures for distributing mandatory student activity fees. The court held that the University should be allowed to devise a constitutionally-acceptable system. However, the court rejected the University's proposed refund system, clearly stating that "the University cannot even temporarily collect from objecting students the portion of the fees which would fund organizations which engage in political and ideological activities, speech or advocacy . . ."
At a minimum, this ruling will require colleges and universities to review their current student activity fee policies. Policies which are mandatory and which allow student fees to fund organizations which engage in "political and/or ideological speech and advocacy" may be successfully challenged by objecting students as violative of their First Amendment rights. Additionally, a college or university may not first collect mandatory student fees from objecting students and later refund them, but apparently must establish a mechanism whereby objectors can opt out of funding advocacy groups at the outset.