Southworth II Update

In the original decision, the Court unanimously voted to uphold the ability of mandatory student fees to fund all sorts of extracurricular activities, stating that the use of these fees to fund political and ideological student organizations does not violate objecting students' First Amendment rights, so long as organizations are funded in a viewpoint neutral manner. The Court, however, chose to remand the issue of whether or not referenda could be used in funding decisions back to the lower courts, citing insufficient evidence to make an informed ruling. The referenda question was quickly settled out of court by voluntary adjustments to the UW-Madison system. Despite these adjustments, the plaintiffs chose to file an appeal challenging the constitutionality of the UW-Madison fee system on new grounds. After having his decision already overturned once in the original Southworth litigation, the lower court judge granted this unusual motion to rehear the same case based on a new set of objections.

The plaintiffs claimed that the UW-Madison fee allocation system was not viewpoint neutral, because it granted decision makers "unbridled discretion." They made this accusation despite being unable to provide any evidence of viewpoint discrimination and having previously stipulated that the UW-Madison fee system was viewpoint neutral.

During this resumed litigation, the lower court asked the University to clarify the process by which fees are allocated. Despite the University's compliance with this request and the plaintiff's complete lack of evidence, the Judge ruled in favor of the plaintiffs, agreeing that the UW-Madison system gave students "unbridled discretion" in funding decisions. On appeal, however, the 7th Circuit Court overturned the lower court's decision citing the extensive system of checks and balances in place to ensure that funding decisions are made in a viewpoint neutral manner-"We agree with the University. The numerous and specific Funding Standards detailed above greatly limit the discretion of the ASM Finance Committee and the SSFC. First, the University has an expressed policy prohibiting viewpoint discrimination and requiring conformity with the constitutional requirements set forth in Southworth. The University seeks to assure compliance with this policy by requiring ASM officials to take an oath that they will abide by the principle of viewpoint neutrality. And, as noted, the Funding Standards provide for the removal of any ASM official who violates this constitutional mandate. As detailed above, the Funding Standards also set forth specific, narrowly drawn and clear criteria to guide the student government in their funding decisions as to GSSF grants and SGAF operations and event grants….Together, these Funding Standards greatly limit the student government's discretion."

Thus, the 7th Circuit Court reversed the lower court's misguided decision and affirmed the viewpoint neutrality of the UW-Madison fee allocation system, signifying the end of litigation in the Southworth case. The Courts' decisions taken in sum constitute a remarkable victory for campus free speech. In the end, Southworth not only affirmed the ability of mandatory student fees to fund all types of political organizations, but it also upheld the viewpoint neutrality of Madison's fee allocation system. The precedent set by these two decisions is clear and indisputable-student fees allocated in a viewpoint neutral manner facilitate the marketplace of ideas on campus by encouraging speech from a diverse array of student organizations.