Supreme Court to Examine ‘Fee Speech’ at University

College campuses are a haven for free speech, and nowhere more so than at the University of Wisconsin.

Students can join myriad groups, and the traditionally liberal campus even has two independent student newspapers, including one with a conservative bent.

While many revel in this marketplace of ideas, some young conservatives say that campus activism is less a tribute to free speech than to a bureaucratic system of “fee speech.” Many of the activist groups on campus are funded largely by mandatory student fees.

Now the future of the fee-speech system--a feature of most university campuses today--is in doubt, thanks to a free-speech challenge coming before the Supreme Court this month.

Scott Southworth, a UW law student who believes that students should have the right to “opt out” of funding groups and causes they oppose, argues that mandatory fees are unconstitutional.

He predicts that the Supreme Court will agree and force student groups nationwide to rely on voluntary support.

At UW, about two-thirds of the annual fees--assessed at $331 per student in 1995, when Southworth first challenged them--go to the health clinic and the student union. The balance goes to more than 100 campus groups, with some getting a few hundred dollars for a speaker or a newsletter and others receiving more than $30,000 a year to pay for offices and staff.

Among the groups receiving university funds are the Internationalist Socialist Organization, the Militant Student Union, the Progressive Student Network, the UW Greens and the Ten Percent Society, the more militant of two gay rights groups.

“As a conservative Christian, I don’t think I should have to fund these violently partisan, anti-Christian hate groups,” Southworth said. He characterized the university’s response as: “You either pay for these groups or we will kick you out.”

The University of Wisconsin has defended the subsidies for student groups steadfastly and says that the array of advocates enriches campus life.

“The groups bring speakers to campus. They show films. They hold debates. They make the campus interesting,” said Wisconsin Assistant Atty. Gen. Susan Ullman, who is representing the board of regents.

“This is not compelled speech,” she added, since dissenting students like Southworth are not forced to say anything or endorse a viewpoint. The university’s 40,610 students simply pay a fee, which is used by a committee of students to fund campus organizations, she added.

But Southworth believes that a series of Supreme Court precedents supports his position.

During World War II, the high court ruled that students--in this case, children of Jehovah’s Witnesses--could not be forced to salute the American flag. In the wake of the Communist scares of the 1950s, the justices ruled that state university professors cannot be forced to sign loyalty oaths. The 1st Amendment includes a right “not to speak,” they said.

In 1977, the court extended this idea to mandatory dues. Dissident teachers cannot be forced to pay for their union’s lobbying and political contributions, the court ruled. And in 1990, the justices applied the same principle to the California state bar, ruling that lawyers cannot be forced to pay for lobbying in Sacramento.

Citing these precedents, Southworth and his attorney wrote a mildly worded letter to the UW Board of Regents in 1995, asking if he could “opt out” of paying some fees. He wanted to avoid subsidizing certain groups, specifically the Lesbian, Gay, Bisexual and Transgender Center. For one semester, he was seeking a refund of $7.99.

The university did not respond, and a few months later Southworth sued. He had enlisted the support of the Alliance Defense Fund, a conservative legal group based in Scottsdale, Ariz., whose mission is to “defund the left.”

Southworth found a friendly forum in the federal courts, where in recent years the biggest 1st Amendment victories have been won by conservatives.

A judge in Madison and then the U.S. Court of Appeals in Chicago ruled that students cannot be forced to subsidize campus groups that engage in “political or ideological advocacy.”

The appeals court went beyond a similar ruling issued six years ago by the California Supreme Court. It ruled that University of California students may seek a refund for fees that go to political groups, an option that few exercise. The U.S. appeals court said in the Wisconsin case headed for the Supreme Court that it is unconstitutional for the university even to collect such fees.

On the activist Madison campus--where last week it was the issue of school sweatshirts being made in sweatshops that mobilized a crowd of students outside the library--the Southworth case is the subject of vigorous debate.

“Christian Right Invades UW-Madison,” declared the Daily Cardinal in an editorial denouncing Southworth.

By contrast, the other student newspaper, the Badger Herald, praised Southworth and his allies for “standing up for their rights.”

Student government leaders support the fee system. They said that Southworth’s lawsuit is targeted at racial minorities and gays and that groups serving these students could not survive without the support of fees.

“This is part of a larger strategy to shut down the voices the Christian right disagrees with,” said Adam Klaus, who chairs the Associated Students of Madison, which distributes the funds.

Among the largest grants were those for the Campus Women’s Center and the Lesbian, Gay, Bisexual and Transgender Center, which gets its entire $30,000 budget from student fees.

Dave O’Brien, director of the center for gay students, said that his is a “service group, not an advocacy group. We’re here to create a safe space for LGBT students.”

“Scott Southworth may call us a political, ideological group, but we are not. Each year, we host the Coming Out Week and the Out and About Week. We publish a newsletter, and our activities are open to every student regardless of sexual orientation.”

Southworth accuses his opponents of being bigoted toward Christians on campus. His brief to the high court says that in April 1995 more than 400 demonstrators tried to disrupt a church service in Madison because it featured two speakers who opposed homosexuality. The protesters chanted “Two, four, six, eight! We don’t want your Christian hate!” his brief says.

Last year, former UC Regent Ward Connerly, who led the campaign against affirmative action, came to Madison but was shouted down by angry students and was unable to deliver an address.

“The left doesn’t care much about our freedom of speech,” Southworth said. “I’m tolerant of what they have to say. I just don’t think I should have to subsidize them.”

While conservatives are hoisting the banner of the individual’s right to free speech, liberal lawyers are touting the importance of campus community.

The American Civil Liberties Union, People for the American Way and the Brennan Center for Justice, named for the late liberal Justice William J. Brennan, filed briefs urging the court to reject Southworth’s claim and to uphold the mandatory fees.

The fees create a “public forum,” like a band shell in a park, which all can use to speak, they say. “The right to opt out of financially supporting a public forum . . . could rend the common fabric [of the campus community] and transform it into a voluntary assembly of individuals,” the Brennan Center brief says.

What’s wrong with a voluntary assembly of individuals? Ask Southworth and his lawyer, Jordan Lorence of Fairfax, Va.

“If the context were different, they would agree with us,” Lorence said. “If there were a campus KKK chapter, I don’t believe they would tell black students you must support it as a condition of being at a public university.”

But Southworth’s goals for his case and for the cause of optional fees extend far beyond the university level. He believes that a high court ruling in his favor will lead to constitutional attacks on government-funded art.

“If we win this case, the NEA [National Endowment for the Arts] is done for,” he said.

The justices will hear the case (Board of Regents of the University of Wisconsin vs. Southworth, 98-1189) on Nov. 9.