After years of confusion sown by inconsistent lower court decisions, the Supreme Court finally resolved the controversy over the constitutionality of mandatory student fees in. Board of Regents of the University of Wisconsin System v. Southworth. Scott Southworth was a conservative student at the University of Wisconsin-Madison. The University had a mandatory fee, which it collected to help fund hundreds of student organizations. Southworth disagreed with the views of a number of the more liberal organizations funded through the fee system, including groups ranging from the Campus Women’s Center to the International Socialist Organization. Southworth, along with several of his conservative colleagues, sued the University, arguing that forcing him to pay the fee was tantamount to compelling him to support speech that he abhorred, a violation of the First Amendment.
The Supreme Court ended the debate over the constitutionality of mandatory student activity fees in Southworth. Southworth rejected prior lower court decisions that applied a “germaneness” test for mandatory fees; under that test, fees could be exacted if, but only if, the university could prove that creating a forum for student debate was “germane” to the university’s educational mission. In Southworth, the Court concluded that promoting a “public forum” for student debate was integral to the university’s mission, and thus it made little sense to require universities to prove that fact again and again. As the Court put it:
"The University may determine that its mission is well served if students have the means to engage in dynamic discussions of philosophical, religious, scientific, social, and political subjects in their extracurricular campus life outside the lecture hall. If the University reaches this conclusion, it is entitled to impose a mandatory fee to sustain an open dialogue to these ends."
In so ruling, the Supreme Court ended the debate about the constitutionality of a university’s exaction of a mandatory fee. All the Constitution requires is a university’s determination that its students will be well served by the creation of a forum to discuss social, political, philosophical and economic issues. Once a university makes that determination, its decision to create a forum, and to use mandatory student fees to fund it is not subject to second-guessing by the courts.
The Court also made clear that the Constitution did not impose a limit on the kind of speech, or expressive activity, that could take place in the forum. Lower court decisions had suggested that there were activities that might not be germane to the university’s core educational mission, and that these activities could not be supported by mandatory student fees. But the Court made clear that those decisions as well were for the school to make, not the courts. As the Court put it:
"The speech the University seeks to encourage in the program[s] before us is distinguished not by discernable limits but by its vast, unexplored bounds. To insist upon asking what speech is germane would be contrary to the very goal the University seeks to pursue. It is not for the Court to say what is or is not germane to the ideas to be pursued in an institution of higher learning."
The Court also rejected lower court opinions that suggested that activities supported by student fees had to take place on the school’s campus. Objecting students had frequently argued that lobbying and service activities that took place off campus did not directly benefit the school’s students, and thus were not germane to the school’s mission. The Court rejected that argument. The Court ruled that education does not necessarily take place within the confines of a school’s campus and was not subject to geographic limitation. The Court said:
"We find no principled way, however, to impose upon the University, as a constitutional matter, a requirement to adopt geographic or spatial restrictions as a condition for [student groups’] entitlement to reimbursement. Universities possess significant interests in encouraging students to take advantage of the social, civic, cultural, and religious opportunities available in surrounding communities and throughout the country. Universities, like all of society, are finding that traditional conceptions of territorial boundaries are difficult to insist upon in an age marked by revolutionary changes in communications, information transfer, and the means of discourse.”
Having ruled that state colleges and universities were free to use mandatory student fees to create forums for expressive activity, and that the courts would not oversee these decisions, the Court turned to what it saw as the possible First Amendment problems.
The Supreme Court was not worried about the creation of student fee programs --- that decision, the Court thought, was up to the school. Rather, the Court was concerned that the fee system might be administered in a way that discriminated against minority views and favored views that were supported by a majority of students. The Court did not want to license the exclusion of certain voices from the forum simply because a majority of students might disagree with their message.
Accordingly, the Court drew an analogy to cases governing “public forums,” like parks and streets, where restrictions on speech must be imposed in accordance with principles of viewpoint neutrality. “If the rule of viewpoint neutrality is respected, our holding affords the University latitude to adjust its extracurricular student speech program to accommodate these advances and opportunities." Viewpoint neutrality is not a difficult concept to understand. Put simply, it requires the government, when it maintains a forum for expressive activities, to permit equal access by everyone who wants to participate. The government may not pick and choose which viewpoints may be expressed in that forum. This standard, that funding must be allocated without regard to the views of the group applying for funding, is the operational principal to ensure that the fee system is constitutional.