Oregon (1999)
On February 23rd, the 9th
Circuit Court of Appeals upheld the University of Oregon's use of mandatory
student fees. This decision affirms
a 1996 District Court ruling in Rounds v. Oregon State Board of Higher Education.
Both courts found that the mandatory student activity fee creates a marketplace
of ideas that enhances the educational mission of the University, while rejecting
the claim that such funding violates the first amendment rights of dissenting
students.
The original suit was brought by current and former students at
the University of Oregon. They objected to the funding of the Oregon
Student Public Interest Research Group, a campus organization which
offers students leadership skills, hands-on experience in public
policy, and opportunities to participate in community service. The
case was filed by the conservative Individual Rights Foundation.
The unanimous opinion, written
by Circuit Judge Sidney Thomas, makes the following significant points:
- Funding
of a student organization that neither claims all students as members nor
purports to speak on behalf of all students amounts neither to "compelled
speech" nor to "compelled association" under first amendment
principles.
- The
marketplace of ideas created by student fees is both unique and constitutional.
It is of the utmost significance that the organizational
speech at issue occurs in an academic setting, for "[i]t is the business
of a university to provide that atmosphere which is most conducive to
speculation, experiment and creation."
The goals of the university are much broader than the goals of
a labor union or a state bar, and they are inextricably connected with
the underlying policies of the First Amendment.
- The
activities of OSPIRG funded by mandatory student fees are germane to the mission
of the university.
(Their) purpose is consistent with a university "atmosphere"
in which extracurricular activities constitute "a critical part of
campus life."
- Public
universities play an important role in preparing students to be citizens.
Under the control of the Board of Higher Education, the
University performs the central governmental function of providing opportunities
for "deserving and qualified citizens to realize their aspirations
for higher education," thereby meeting Oregon's need for "wise
and effective leadership and an informed citizenry."
Decisions from the 2nd,
4th, and 8th Circuits have previously protected the forum for expression created
by student fees. The 9th Circuit
ruling strengthens this already rich history of cases. "It's the first case that says when you have a neutral
funding mechanism like student fees, there is no compelled speech.
That is a triumph and beats back the rhetoric of the other side about
what's really going on on campus," says David Vladeck, who represented
the student organization in the case.
Attorneys involved with the case also point out that even though this
ruling sets up a good framework for defending student fees, the facts of the
case focus solely on the funding for OSPIRG.
The 9th Circuit Court opinion
does critique one recent ruling - the 7th Circuit's decision against the University
of Wisconsin in Southworth v. Grebe (1998). "To the extent that Southworth holds that a public university
may not constitutionally establish and fund a limited public forum for the expression
of diverse viewpoints, we respectfully disagree...," wrote Thomas.
So does the University of Wisconsin, which filed a petition for certiorari
with the Supreme Court last month.
Attorneys for the plaintiffs
in the Rounds case have not expressed any intent to appeal the case further.
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