High Court Listens to Debate on Mandatory Student Fees

Lawyers for the University of Wisconsin went before the Supreme Court on Tuesday hoping to save the now-standard funding systems in which student fees support activist groups on campus.

“The students choose which groups are funded,” said Susan K. Ullman, a Wisconsin assistant attorney general, and the result is a “diversity of voices” that enrich campus life.

But the line-up of left-leaning groups at Madison, ranging from the International Socialists to the Lesbian, Gay and Bisexual Center, has been challenged by a conservative law student who says he resents paying for activism he opposes.

Dissenting students should have “a right to opt out . . . , to stand back and not be part of the debate,” said Jordan W. Lorence, an attorney for Scott Southworth, the young conservative.

The justices struggled with the free speech issue during the hourlong argument and sounded closely divided. Both attorneys claimed that the 1st Amendment is on their side.

According to Ullman, students benefit from a campus that includes a variety of speakers and causes. Last year, for example, the fee-financed student lecture group brought to campus both Patricia Ireland, president of the National Organization for Women, and Republican consultant Ralph Reed, formerly head of the Christian Coalition.

Lorence, however, noted that the 1st Amendment is usually viewed as an individual right, not a group benefit.

In past rulings involving teachers’ unions and state bars, the high court has said that dissident educators and lawyers cannot be forced to pay dues that are used for politics or lobbying. Relying on those rulings, the U.S. appeals court in Chicago declared unconstitutional Wisconsin’s system of doling out mandatory fees.

If the justices agree, the outcome will affect most public colleges and universities.

The university’s lawyer insisted that the fee system is fair to all. Regardless of their views, campus groups can receive funding, Ullman said.

“What if there is a student chapter of the KKK?” asked Justice Antonin Scalia.

“That group would get funding,” she replied.

“Automatically?” Scalia asked.

Yes, she said, so long as the group complied with the university’s policies, including a nondiscrimination pledge.

“Under this approach,” argued the dissenting student’s lawyer, “African American students can be compelled to fund the campus KKK.”

Of course, the University of Wisconsin has no KKK chapter. Instead, it has an abundance of liberal groups, a point noted by Justice Stephen G. Breyer.

“The 1st Amendment is supposed to protect views that are unpopular. Yet under this mechanism, the money could go to only liberal groups, which are popular on campus, but not to the conservative organizations that are not popular,” Breyer said.

Chief Justice William H. Rehnquist also sounded skeptical.

“You call these ‘service’ organizations, but they are mostly interested in propagating their views,” Rehnquist said.

But if a student could challenge the funding of a campus group he opposes, why not a professor whose views he finds offensive, asked Justice John Paul Stevens. “Or suppose the school newspaper has been taken over by communists, which always seemed to happened when I was in school,” said the 79-year-old Stevens.

Lorence replied that government speech, such as that of a professor hired by a state university, is protected. It is another matter, he argued, to force students to pay fees that are given to “private organizations” to say whatever they please.

The justices will meet later this week to consider that argument and to vote on the outcome. A ruling in the case (Board of Regents of the University of Wisconsin vs. Southworth, 98-1189) will be handed down in several months.