Key Legal Principles and Background
There are just a handful of key legal principles that, once understood, make it easy to operate a student fee system that complies with the law. Below, we will discuss the basis of the legal challenges to student fees, the legal requirements for mandatory fee systems that arise out of this litigation, and practical principles to implement in a fee allocation system that meets those requirements.
Prior to Southworth, the most common claim in legal challenges to student activity fees was that student activity fees amounted to ‘compelled speech’ and were therefore a First Amendment violation. These legal challenges involved students who were subject to a mandatory fee, but objected to the positions taken by one or more of the student organizations funded through the mandatory fee system. Advocates of this position were fond of quoting Thomas Jefferson – “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.”
Initially, many courts agreed with the objecting students that the First Amendment protected their right of association --- in these cases, their right not to have their funds support political speech they disagreed with. These courts found that the mandatory exaction of student fees was analytically no different than fees charged by labor unions that, by law, represented all of the employees who worked for a given employer. In many states, labor laws require employees to pay dues to the labor union authorized to represent workers even if the employees were not members of the union. Courts had upheld the exaction of these dues to prevent the “free rider” problem --- that is, that non-union members would reap the benefit of union representation without paying their fair share. But the Supreme Court, in a landmark case (Abood v. Detroit Board of Education) held that union dues exacted from non-members could be used only for activities “germane” to the central mission of the union --- to press the employer for better pay, benefits and working conditions, and could not be used to engage in unrelated political activities.
Applying the logic of Abood to student fee cases, lower federal courts held that the mandatory exaction of student fees implicated the right of objecting students to be free of compelled association. But the courts also found that state colleges and universities had a powerful interest in establishing mandatory fee programs to pay for a broad array of student activities that were “germane” to the school’s mission to provide a rich educational environment for its students. As a result, the courts were then called on to decide which student programs met the “germaneness” test, with the courts taking two divergent approaches to answering that question. Some courts, like the United States Court of Appeals for the Ninth Circuit, ruled that the appropriate inquiry was whether the forum created by the student fee system was germane to the school’s educational mission. These courts ruled that most programs --- even those that engaged in advocacy, along with other activities --- survived germaneness review (Rounds v. Oregon State Bd. Of Higher Ed., 1999). Other courts, including the California Supreme Court, found that the appropriate inquiry was whether each group that participated in the forum survived germaneness review (Smith v. Board of Regents, 1993).
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.
In the context of collecting and allocating student fees, “viewpoint neutrality” means ensuring that there is no bias toward any particular viewpoint. Because student fee funded activities involve a wide range of projects and programs that can require vastly different levels of funding, “neutrality” is not measured by the particular outcome of funding allocations, but by the process by which those decisions are made. The goal is to have a process that is neutral and bias-free, not to create an artificial ‘balance’ of views and activities.
It is easier to describe the elements an allocation system may not have in order to prevent bias rather than to design a bias-free system. The key elements are:
- Funding decisions may not have any relationship to the particular viewpoint of the group or activity. Requests for funding based on criteria that are neutral toward the views of the organization.
- Funding may not be contingent on a particular level of support or popularity of an organization, although the amount of funds to be allocated to an organization may take into account student involvement in the organization.
- Criteria used to evaluate funding proposals must be consistently applied.
While the system for allocating student fee funds at UW-Madison was not at issue in the U.S. Supreme Court’s decision, follow-up litigation in 2002 before the United States Court of Appeals for the Seventh Circuit did specifically address the UW-Madison allocation process and found it to be constitutional, with minor exceptions not relevant here. The case, Fry v. Board of Regents (commonly known as Southworth II) only strictly applies to campuses in the Seventh Circuit (Wisconsin, Illinois and Indiana). Nonetheless, the decision did identify some sound principles that any allocation system should incorporate:
- The allocation system should require that decisions are made without regard to viewpoint;
- The allocation system should have a process for removing fee allocation committee members that violate viewpoint neutrality;
- The allocation decisions should be made based on specific, content-neutral criteria;
- The allocation system should have a clear appeals process.
Fee allocation systems should also be designed so that the decision-making process is transparent and may be reviewed by any member of the campus community. In addition, the system should be structured to ensure that all students can easily determine how organizations may apply for funding and how fee allocation decisions are made. The more open the process, the more likely it is that a system will survive judicial review. These additional safeguards will help to ensure that potentially problematic decisions are caught early in the process and that students involved with the process understand the mechanics well enough to appreciate why some requests for funding are denied. These steps can be met by requiring meetings to be open to members of the campus community, by keeping detailed records of meetings and making them available to members of the campus community, and by running training sessions and establishing other mechanisms for educating student organizations on the student fee allocation process.
One example of a system that works well is the University of Wisconsin-Madison General Student Services Fund (GSSF) allocation process. This process, run by the student government (the Associated Students of Madison) is not perfect, and we do not mean to suggest that it is. In fact, some would argue that in attempting to satisfy the lower court judges during the Southworth II litigation, the University adopted far more detailed procedures and criteria than are legally or practically necessary. Nonetheless, it is an example of a system that implements, and goes beyond, the principles described above.
From the Associated Students of Madison Bylaws at the time of the decision:
Criteria considered when deciding whether an organization is eligible for funding:
- The group must be an officially registered organization
- The group must have written governing documents
- The organization/program must provide a specific and identifiable educational benefit and/or service to the students of the University
- All students must be able to participate in the organization/program and/or access to the services they provide
- The group and/or activity must demonstrate how it contributes to the University’s mission
- The group must present a detailed plan about its mission, goals, and activities
- The group and/or activity must not duplicate current offerings
- The group’s proposal must be fiscally responsible
- The group must attend its hearing
Criteria considered when determining the amount of funding to allocate to eligible organizations:
- An eligible organization/program has demonstrated the ability to effectively spend the funds that the group was awarded in the manner proposed
- An eligible organization/program has demonstrated that it has accomplished the objectives that it had set out to accomplish in the past
- An eligible organization/program has demonstrated that the request for funds is reasonable within the objectives it has set
- An eligible organization/program has demonstrated a need for the request for funding to achieve its objectives
- An eligible organization/program has demonstrated that it has submitted accurate requests for funding in the past
- An eligible organization/program has not significantly changed since their eligibility hearing so as to violate the eligibility criteria
Procedures the UW system uses to ensure decisions are made in a viewpoint neutral manner:
- The student government document all hearings regarding a group’s request (both by note taker and audio tape);
- The student government has a clear timeline for voting and decisions spelled out in its bylaws;
- The student government has an appeals process spelled out in the bylaws. Appeals first go before the Student Judiciary and then before the campus administration. The appeals process has a specific timeline spelled out in the student government bylaws;
- The student government’s bylaws require that members of the finance committee make decisions in a viewpoint neutral manner and have a procedure to remove members that violate this requirement.
Although viewpoint neutrality is a relatively simple concept, in the years since the Supreme Court’s ruling some have misunderstood what viewpoint neutrality means in practice. For the most part, these misconceptions are caused by one central misunderstanding—that the outcomeof the allocation process must be neutral or balanced towards viewpoints rather than that the process for allocating funds needs to be neutral towards viewpoints. The following discussion highlights three of the more common ways this central misunderstanding comes up in practice:
Viewpoint neutrality means that fee allocation decisions cannot take into account the results of a student referendum.
Post Southworth, it is understood that requiring a showing of majority support, through a referendum or otherwise, as a condition for funding would be constitutionally suspect. The forum may not be open only to those organizations that command broad support. The essence of viewpoint neutrality is that all points of view --- even those espoused by small minorities --- must be given equal access to the forum.
However, nothing in Southworth holds that schools must turn a blind eye towards indications of student support, such as a referendum or petition. Indeed, a system that did not consider, at least to some extent, student support would likely violate the Constitution.
The confusion about viewpoint neutrality and referenda is understandable since the Southworth Court did raise concerns about the use of a referendum as the sole determinant in deciding whether groups were eligible for funding. The Court suggested, but did not rule, that such a method of determining eligibility would not be viewpoint neutral.
“To the extent the referendum substitutes majority determinations for viewpoint neutrality it would undermine the constitutional protection the program requires. The whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views.”
If referenda are the sole means by which eligibility for funding is determined, then the majority could easily silence a minority view, violating the principle of viewpoint neutrality. If a funding allocation system is designed in that manner, it should be changed to allow both popular and unpopular views access to funding.
More recently, the use of an advisory referendum in determining how much funding to allocate an organization has been the subject of litigation. In Amidon, Brownlow, CALL-NY v. SUNY Student Association, NYPIRG (2007), the 2nd Circuit Court of Appeals held that an advisory referenda asking students if they supported funding an organization at a specific dollar amount violated viewpoint neutrality. The Court determined that the specific referendum in question “substantially captures one thing: the student body’s valuation of the RSO.” It also determined that that the other parts of the allocation process in question were insufficient to stop the student government from using the results of the referendum to reduce or deny funding to groups known to have unpopular viewpoints. As the Court put it, “here there are no effective safeguards to prevent a discriminatory advisory referendum from tainting the allocation process.”
Nonetheless, the 2nd Circuit’s decision in Amidon did not find all referenda to be inappropriate. The Court specifically allowed for allocation systems to take into account the level of student participation in an organization and the use of referenda that ascertain how many students would be likely to participate in an activity or organization.
“Our decision does not foreclose the use of advisory referenda that are reasonable in light of the forum’s purpose and viewpoint neutral. For example, we see no impediment to using an advisory referendum (or perhaps more aptly labeled, a survey) to ascertain how many students anticipate attending a specific event for which an RSO seeks funding as a means of assessing that RSO’s prospective costs.”
Though the constitutionality of using referenda in allocation decisions is not a settled question, there remains a strong argument that referenda and other tools to measure student involvement and interest can be useful in making allocation decisions provided they are used in the right way. A critical distinction exists between the use of referenda to determine a group's eligibility to receive funds and the use of referenda as a tool for gauging student interest in the group for use in determining the amount of funds allocated to a group that has already been deemed eligible.
When a referendum is used to inform the amount of an allocation for a group or activity, the referendum can serve as a useful measure of the amount of services provided by the group and future student interest/involvement. It is common sense that the amount of funds allocated should be, at least in part, a function of the number of students who benefit from the group's presence on campus. There is a strong argument that allocation decisions must be made, at least in part, by considering the level of student support in order to avoid running afoul of viewpoint neutrality principles.
Consider a concrete example. Suppose that Students for Choice had 5 active student members while Students for Life had 500. The University would have a very difficult time justifying giving Students for Choice $2500 and Students for Life $1500 without appearing to favor the speech of Students for Choice. By not taking into account the level of student support, the University artificially amplifies the voice of the minority organization, Students for Choice, at the expense of the expressive rights of the larger number of students who support Students for Life. On the other hand, if the fee allocation were $500 to Students for Choice and $5000 to Students for Life—because the University has a policy that student interest is a determining factor in allocation decisions—that allocation seems easy to defend on viewpoint neutrality grounds. If anything, the University has tipped the scale in favor of the minority organization to ensure it is heard in the forum, without unduly penalizing the interests of Students for Life.
Using referenda is simply one method of considering student interest in allocation decisions. Provided that referenda are employed as one of the criteria considered in setting allocation levels and do not harm an organization’s access to the forum in the first place, a measure of student interest and likely involvement can be useful.
Viewpoint neutrality means that all groups must be allocated the same amount of funding.
A related misconception is that the only way to allocate fees in a viewpoint neutral manner is to give every group the exact same amount of funding—again, arguing that the outcome of allocation decisions must be neutral rather than focusing on the process by which funds are allocated. There are three problems with this misconception. First, different types of groups have very different resource needs. A chess club requires different resources than a student legal services program. Second, groups with different levels of student involvement on campus would also need different levels of resources. If a campus group has a large number of participants, they will use more resources to meet that demand than one that has a small number of participants. Third, there is a serious viewpoint neutrality problem in treating dissimilar groups alike. To build on the prior illustration, there is a strong argument that giving equal funding for Students for Choice and Students for Life both unfairly amplifies the voice of the smaller group and unfairly suppresses the voice of the larger group. While strict proportionality is not required, a strict equality rule is unlikely to survive First Amendment attack.
Viewpoint neutrality means that a group cannot be funded unless a group that advocates the “opposite” view also receives funding.
While there is no coherent legal basis for this concern, it is a point that is made frequently by opponents of student fee programs. The typical argument is that groups working of a “liberal” side of an issue --- for example, tolerance for gays --- may not be funded unless the school is equally willing to fund an organization that takes the opposite position, say an organization of formerly gay individuals who believe that homosexuality is a personal life choice that one is free to change. The problem with this argument is that it is not an equality argument. If such an organization existed, principles of viewpoint neutrality would require the school to permit it to seek funds on an equal footing with the tolerance for gays organization. Nor is it a viewpoint neutrality argument. The objection does not go to the criteria used to determine eligibility --- it is an objection based solely on the orientation or viewpoint of the group receiving funding. Rather, it is the classic sore-loser argument that seeks to defund organizations --- not because an opposition group is not receiving funds, but because an opposition group simply does not exist. UnderSouthworth, this argument is without merit because it has nothing to do with the viewpoint neutral tools used to determine funding eligibility.
In the early 1990s, a group of students from the University of Virginia formed “Wide Awake Productions” to produce a magazine designed to facilitate discussion of Christian theology and philosophy. The organization was recognized as an official Contracted Independent Organization by the student council, a status which allows the organization to submit bills from outside contractors for payment by the Student Activities Fund.
The organization soon printed its first issue, which had articles about prayer, racism, stress, C.S. Lewis' ideas about free will and evil, and reviews of religious music. WAP then requested that the SAF pay its printer $5,862 for the cost of publication. The funding committee of the student council denied this allocation claiming that the newspaper was a "religious activity" and therefore ineligible for funding by the SAF. WAP appealed this decision to both the entire student council body as well as the Dean of Students: both rejected the appeal and sustained the denial of funding.
WAP then took the issue to District Court, claiming the University had violated their rights to freedom of expression and to freely exercise their religious beliefs. After multiple appeals, the case appeared before the Supreme Court. The University of Virginia argued that any affiliation with a primarily religious publication would violate the Establishment Clause. The Supreme Court ruled that no such violation could take place so long as funds were distributed without regard to an organization's point of view—thus facilitating an educational forum where all viewpoints were welcome to participate. Thus, the Court ruled that WAP's publication costs should be paid for by the Student Activities Fund.
"Symmetry" in the Rosenberger and Southworth decision:
From the Southworth decision:
"While Rosenberger was concerned with the rights a student has to use an extracurricular speech program already in place, today's case considers the antecedent question, acknowledged but unresolved in Rosenberger: whether a public university may require its students to pay a fee which creates the mechanism for the extracurricular speech in the first instance. When a university requires its students to pay fees to support the extracurricular speech of other students, all in the interest of open discussion, it may not prefer some viewpoints to others. There is symmetry then in our holding here and in Rosenberger: Viewpoint neutrality is the justification for requiring the student to pay the fee in the first instance and for ensuring the integrity of the program's operation once the funds have been collected. We conclude that the University of Wisconsin may sustain the extracurricular dimensions of its programs by using mandatory student fees with viewpoint neutrality as the operational principle."