Understanding Student Fees: Southworth v. The Board of Regents of the University of Wisconsin System

On March 22, 2000, the U.S. Supreme Court delivered an important free speech victory for students when they unanimously overturned a 7th Circuit ruling declaring mandatory student fees unconstitutional. The Court's ruling in Board of Regents of the University of Wisconsin System v. Southworth (Case #98-1189) reinforces the historic role of college campuses as a marketplace of ideas. Mandatory student fees currently fund a diverse array of activities ranging from lecture series to health services to the student newspaper.

The case was filed by three students at the University of Wisconsin who argued that it was unconstitutional for portions of their student fee to fund political or ideological activities with which they disagreed. The offended students were particularly concerned with multi-cultural groups, environmental groups, and lesbian, gay, bisexual and transgendered groups. The University of Wisconsin appealed the case to the Supreme Court, arguing that the marketplace of ideas created by student fees is an appropriate and important part of the school's educational mission.

The Supreme Court's ruling provides the foundation for a legal framework for a student fee system that engages students on issues ranging all over the political, social, and activist spectrum.

Summary of the Ruling

The opinion of the Supreme Court, written by Justice Kennedy, made these key points:

1. It is constitutional for campuses to collect and allocate mandatory fees to a wide-variety of student groups.
"We decline to impose a system of that sort as a constitutional requirement, however. The restriction could be so disruptive and expensive that the program to support extracurricular speech would be ineffective."

2. Mandatory student fees can fund student groups that address any issue or activity.
"The speech the University seeks to encourage in the program 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."

3. Student organizations cannot be denied funding based on their viewpoint.
"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."

4. It makes no difference if the activities supported by the fee are conducted on or off campus.
"We make no distinction between campus activities and the off-campus expressive activities of objectionable [student groups]. 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."

'Viewpoint Neutrality' and the First Amendment

When the Court states that funds must be allocated in a viewpoint neutral manner, they mean that funding decisions cannot be based on a particular group or activity's point of view. Thus, the decision to fund or not to fund an organization cannot be contingent on the content of the group's message. This method of allocating funds protects students' free speech rights by ensuring that all viewpoints, including those that are controversial, have an equal chance to receive student fee funding. Unfortunately, the concept of viewpoint neutrality has been subject to misinterpretation:

• Viewpoint neutrality does not mean that all groups should receive the same amount of money. If this were true, than the chess club would receive the same amount of funding as the student newspaper, which would result in either excessively extravagant chess sets or a student paper unable to publish and distribute its work.

• Viewpoint neutrality does not mean that by funding one point of view, you must automatically fund an "opposite" point of view. First, most organizations and activities do not have an opposite point of view. Second, even in a situation where a pro-life group and a pro-choice group apply for funding, it is not necessary to fund both groups at the same level, or even to fund both at all. Chances are strong that one of the two groups provides a greater level of services to the student body and thus deserves more funding. The level of services provided and other objective criteria should direct the funding decision, not the viewpoint of either group.

The most important thing to remember is that viewpoint neutral funding pertains to the process, not the outcome. Different groups will receive greater or less amounts of money based on their needs and the service they provide to students. What matters is that discrepancies in funding are not a result of an activity or organization's point of view or message.

Southworth and the Marketplace of Ideas

The beauty of the Southworth decision is that it protects the First Amendment rights of students, while at the same time promotes an infinitely wide variety of speech on and off-campus - "The speech the University seeks to encourage in the program before us is distinguished not by discernable limits but by its vast, unexplored bounds." The Court makes "no distinction between the on and off-campus activities" of student organizations and states that "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."

What does Southworth mean for you?

University administrators and student government leaders are now free to fund all student activities that have significant educational value for the university community. Thus, when the student government is deciding which organizations to fund, rather than asking, "Are we allowed to fund this organization?," they will ask, "How should we fund this organization?" It no longer matters whether or not the organization or activity in question is considered political, religious, or ideological in nature - Southworth gives students and administrators the power to create a diverse and vibrant marketplace of ideas, thereby facilitating an active culture of debate and a student body engaged in the civic process.