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District Judge Strikes Down Mandatory Fees at UW
Eric Langborgh
When the United States Supreme Court sent down its ruling last year affirming the legality of mandatory student activity fees, it was taken as a defeat by many proponents of free speech rights. However, a balanced viewpoint condition attached to the decision has led to the University of Wisconsin's (UW) activity fee being declared unconstitutional by a lower court judge. At jeopardy are hundreds of thousands of dollars worth of funding slotted for left-wing groups on campus that depend on fees compelled from the student body. The University now has until February 6 to revamp its segregated fee system to ensure "viewpoint neutrality," or risk having the system dismantled.
On March 22, 2000, the Supreme Court voted 9-0 in favor of the legality of mandatory student fees in the case University of Wisconsin System Board of Regents v. Southworth. Justice Anthony Kennedy wrote in the court's ruling: "The First Amendment permits a public university to charge its students an activity fee used to fund a program to facilitate extracurricular student speech if the program is viewpoint-neutral."
U.S. District Judge John Shabaz then ruled UW's fee "unconstitutional" on December 8 for failing to meet this condition. "This court recognizes the University's interest in administrating an effective program promoting student speech," Shabaz declared from the bench. "While it does recognize that, the absence of express, objective standards rests unfettered and unbridled discretion on the program decision-makers in a manner inconsistent with viewpoint neutrality."
The University has yet to decide whether it will appeal the decision.
The court's ruling on the "unbridled discretion" of those who disburse the fee runs parallel to precedent set in cases involving parade permits, where even if the possibility existed that a government official or panel with total discretion could deny certain groups access to a parade permit based on viewpoint, the system would be declared unconstitutional. "You have to give it (fees or permits) out in a viewpoint-neutral manner without officials having total discretion as to who gets funding and who doesn't get funded," explained prosecuting attorney Jordan Lorence of the Northwest Legal Defense Fund. "The judge said this system functions like a legislature, and a legislature cannot vote to fund certain groups because of what they talk about or not talk about."
The school disagrees with this assessment, saying funds are being distributed in an even-handed fashion. "The process now being used by the various student allocation committees at UW-Madison is being done fairly and in a viewpoint-neutral way," said Roger Howard, the UW associate vice chancellor for student services. "That is, groups are not being turned away because of their viewpoints."
However, certain groups in the past have indeed been turned down for funding, including a Christian group, while "favorable" groups have been funded at enormous levels.
Lorence told Campus Report that the UW system is open to "immense political manipulation." "In the last two years, there has been a concerted effort by the College Republicans to get elected and defund certain groups" in response to the present left-wing control, he claimed.
In defense of the system, UW's attorneys had argued that any financial-allocation system requires discretion and, in this case, elected students should make those decisions. "Not only does the funding process involve the reasoning process, but the funding process is inherently discretionary," Pete Anderson, the University's attorney, argued. "The ability to come up with a system that did not involve discretion would be very hard, if not impossible. I believe it would be impossible."
Nevertheless, Shabaz found that the simple challenge of changing the system does not free UW from the necessity of protecting student's First Amendment rights.
Liberal Slush-Fund
In practice, the mandatory student fee system has been anything but viewpoint neutral. While funding of conservative and Christian groups has been piece-meal, the benefits liberal groups have received under the UW system have been enormous. The following is a list of some of the major recipients during the 2000-2001 school year:
WisPIRG: The Wisconsin Public Interest Group, received $72,200. Some of this money is then distributed to its parent organization USPIRG for use in lobbying Congress and developing voter guides in support of specific, left-wing candidates.
Campus Women's Center, which advocates abortion, received $54,000. In the past, these funds have financed a radical feminist newsletter and have lobbied against pro-life legislation, such as the Wisconsin Informed Consent Bill, which proposed a 24-hour waiting period before a woman could abort her unborn child.
Multi-Culture Student Center: $167,850.
MEChA, a Leftist Hispanic group that wants to return ethnic boundaries to their pre-1492 positions, received $33,885.
Lesbian, Gay, Bisexual and Transgender Campus Center: Received $34,900, using those funds to promote "gay positive university policies," its newsletter, and pro-homosexual religious groups. And, according to the original brief in the Southworth case, they have also in the past distributed sexually explicit materials on campus, including the screening of hard-core gay porn films.
Sex Out Loud, a "safe-sex" group, received $29,300.
UW-Greens, a Ralph Nader subsidiary, collected $23,700 to advance Green Party politics. They have also lobbied legislators to limit mining in the state of Wisconsin and have campaigned against Republican Governor Tommy Thompson's budget priorities.
The UW fee system operates on a dual-level basis, with a certain class of student groups on the top level receiving major contributions over $5,000, and most others getting smaller amounts of fee money, usually less than $1,000. Though both the left and the right are well-represented in this lower tier, the only organization that could even remotely be considered conservative at the major level is Vets for Vets, for those who have served in the armed services, which gets $17,372 this year. Most agree, though, that this group hardly meets the definition of a conservative group.
Campus advocates of the student fee argue that this funding disparity is needed to beef up the expression of "underrepresented voices" on campus. Said Ruth Harlow for the defense, "Today, the target is our client, the Lesbian, Gay, Bisexual and Transgender Campus Center, and other groups whose speech these extremists oppose. Tomorrow, every student group with detractors could lose funding."
Lorence dissents: "I think what is being funded is the ruling orthodoxies," he explained to Campus Report. "This becomes like a mandatory tithe to the church of the politically correct."
Jessica Miller, a University of Wisconsin-Madison junior on the student government board that distributes student-fee money, said Shabaz's decision to strike down the distribution system was disappointing. The current system helps create an open forum for students to express themselves, she offered.
"It allows for every idea to be debated and discussed," Miller explained. "Any system that wouldn't do that very strongly and have that as its main mission would not be a benefit to students at all."
Former UW-Madison student Scott Southworth, and other plaintiffs now involved in the suit, support an option for individuals to withhold funding the segregated fee. "It's a simple, straightforward mechanism that would end this case in February, when we come back to court," he said. "It's time for the Board of Regents to step up and do the right thing."
Lorence concurs: "They would be free of the restrictions on their allocations, to some extent, if they didn't require students to pay into the fund."
Lawyers for the University oppose this option, however, saying it would destroy the system.
"They suck down money from conservatives to fund their activities," concluded Lorence about the school's reluctance to make the student activity fee optional. "They are very leach-like in the way they do this."
Said UW student council chair Mike Dean, "Just because some people are unhappy with the outcome doesn't mean that we are not viewpoint neutral."
Proponents on both sides of the issue maintain that a return visit to the U.S. Supreme Court is a strong possibility.
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