Supreme Court should uphold fees as vehicle for free speech

The Supreme Court heard oral arguments Nov. 10 in a case that endangers the funding of student groups at public universities across the nation. Three conservative law students at the University of Wisconsin: Madison sued the school to recover fees they had paid to support campus student groups. They argued that the school was forcing them to pay for the activities of liberal groups whose messages they opposed. While a federal appeals court has found in their favor, the Supreme Court should reverse that decision and recognize the existence of active student groups as integral to the atmosphere and function of a university.

Currently, the University of Wisconsin charges a mandatory fee from each student, which is channeled to student groups through a general university fund as well as through the student government. The students who sued objected to the activities of groups such as Amnesty International, the Madison AIDS Support Network and the Campus Women's Center, and they have asked for the right to withhold their support. Several right-wing law organizations, such as the Washington Legal Foundation, have submitted amicus briefs urging the Court to end the University of Wisconsin's fee system.

The Supreme Court has already ruled that the funding of student organizations does represent a public forum for the purpose of distributing funds. In other words, a public university cannot discriminate among the groups that it funds and there is no evidence that the University of Wisconsin was selectively favoring liberal causes in its support of student groups. However, that earlier decision had expressly avoided the question of whether the school can legitimately compel students to pay for the forum.

The suing students argue that the First Amendment, which has long been interpreted to protect both free speech and the freedom not to speak, should prevent a public university from requiring that its students fund politically-oriented groups. They rely on a Supreme Court decision prohibiting a government-imposed union from requiring its members to contribute dues towards the union's political advocacy. However, the University of Wisconsin is not donating to the Gore campaign and sending the bill to its students. The student fee is a means of promoting an open forum on campus for groups of all kinds: religious, political, artistic and social. A union is allowed to gather dues to support collective bargaining and other activities central to its purpose and many universities see the existence of a well-used forum of student debate as central to their academic mission. As Justices David H. Souter '61 and Stephen G. Breyer observed during the oral arguments, a university supporting multiple--often contradictory--messages may not fall under the same scrutiny as a union supporting a particular candidate.

Furthermore, the principle that students should only have to pay for things they like might have some unwelcome consequences. The line between political, social or artistic activities is easily blurred--could a campus newspaper with a defined editorial position be considered political?--and conditioning the funding of groups on their political status might result in a chilling effect that would eliminate otherwise worthwhile activities. The lawyers for the students also argued that the university should not be allowed to sidestep the case by incorporating the fee as part of tuition, which Justice Ruth Bader Ginsburg observed might raise questions of whether a university can teach positions with which any students disagree.

The Supreme Court's decision is unlikely to have any effect on Harvard, since the University is private and the student fee that funds the council's disbursements is voluntary. If it loses the case, the University of Wisconsin is also likely to make the fee voluntary rather than create a logistical nightmare by giving students the opportunity to pick and choose which groups they would like to support.