On March 22 the U.S. Supreme Court ruled, in Southworth v. University of Wisconsin Board of Regents, that requiring students to pay fees to support campus groups, a common practice at many colleges and universities, is not unconstitutional. The Court has spoken—but did it speak wisely? Let’s consider the case and the issues it raises.
Scott H. Southworth is a student at the University of Wisconsin in Madison. A self-described conservative Christian, he objected to the university’s use of mandatory student fees to fund campus groups that he found offensive. Relying on Supreme Court precedents in union settings, where the Court has ruled that dissenters from the union’s political stances cannot be compelled to pay for them through mandatory dues and fees, Southworth argued that his First Amendment right to refrain from subsidizing the speech of others had been violated. Although the fee was only $330, Southworth maintained on principle that he should not be required to help finance even one cent of the budget for the many statist campus groups for which Wisconsin is famous.
Persuaded by Southworth’s analogy to the union dues cases, the trial court invalidated the university’s mandatory fee scheme. The university appealed to the Seventh Circuit Court of Appeals and there suffered a severe rebuke. The Seventh Circuit rejected Wisconsin’s proposed refund mechanism for objecting students and trounced its argument that subsidizing an array of student groups was a vital part of a university’s educational mission.
The university appealed to the U.S. Supreme Court. In a 9-0 decision, the Supreme Court reversed the lower courts. Justice Anthony Kennedy’s opinion gave Wisconsin nearly all that it had hoped for.
First, the Court distinguished the case from union-dues cases by arguing that while speech that is outside the ambit of the union’s core function is not “germane” to it and not a chargeable expense, all speech is “germane” to a university’s “mission” to foster “dynamic discussions of philosophical, religious, scientific, social, and political subjects.” Therefore, ruled the Court, if a university chooses to impose mandatory fees to “facilitate a wide range of speech,” it may do so.
The Court added a qualification, however. The university must be “viewpoint neutral” with respect to the subsidies it dispenses. Justice Kennedy failed to explain precisely what “viewpoint neutrality” requires, but what apparently he has in mind is that there cannot be an unwritten rule that “only leftists need apply.” There will certainly be future litigation over the “viewpoint neutrality” issue. Will Behemoth State U. be able to say that it is “viewpoint neutral” if it gives some money to College Republicans, lots to a bevy of statist organizations, but nothing to (just to make something up) the Lysander Spooner Campus Association? Will a token conservative or free-market presence suffice to satisfy the Court that the university’s policy is “viewpoint neutral”? By saying “yes, but . . .” to mandatory student activity fees, the Court has opened up the federal courts to a tremendous wave of new litigation.
The part of Wisconsin’s program that the Court questioned in this regard was its student referendum method of funding or defunding campus groups. Decisions to give money or not are usually made by the student government, but those decisions can be overridden by student referendum. The Court was troubled by the possibility that putting financial support for possibly unpopular groups to majority vote would be inconsistent with its “viewpoint neutrality” requirement, and for that reason remanded the case for further proceedings.
Does Southworth Make Sense?
The Court acknowledges that there is a First Amendment problem when students are compelled to subsidize “speech which some students find objectionable and offensive to their personal beliefs.” (This is a constitutional matter only with tax-supported institutions.) The freedom not to have to give financial support to speech with which one disagrees (which is usually more a matter of action than writing or speaking) has been one of the Court’s consistent principles since the famous union dissident cases beginning with Abood v. Detroit Board of Education (1977). In Southworth, however, the Court takes the relaxed view that the First Amendment rights of students are “sufficiently protected” as long as the mandatory fees are allocated in accordance with its vague “viewpoint neutral” standard.
The Court’s position is indefensible.
Put yourself in the shoes of Mr. Southworth. You object to the fact that some of your money is being directed to student organizations that attempt to influence public opinion and policy in ways that you find repulsive. The Court says you must put up with it provided that the university retains a veneer of neutrality in its subsidy decisions. The Court says in effect: You may legitimately be forced to pay for the propagation of ideas you abhor because there is some chance that money will also be given to organizations you like. Does that make you feel better? Are you no longer aggrieved because “your side,” as viewed by some jurists, was not completely shut out in the rumble for money?
No. The harm you feel is not alleviated at all by the determination that the people who controlled the purse strings were “fair” or “unbiased.” Your right not to support speech and action to which you object is not redeemed by the fact that people who disagree with you are or might also be displeased over some of the funding decisions. Two wrongs don’t make a right whether we are talking about kids on a playground or the Constitution.
The Court’s notion that First Amendment rights are not infringed as long as some ostensibly “fair” procedure is involved is a novel and frightful idea. Maybe it won’t metastasize, but if it were to, would state or federal attempts to suppress free speech then be approved as long as the suppression were directed at dissidents “from both sides”? The fact that not one member of the Court wrote to question the thesis that constitutional rights are “protected” by “viewpoint neutral” procedures is unsettling.
Justice Kennedy also makes much of the university’s “mission” to “foster vibrant campus debate among students.” But why do universities have any such “mission”? Vibrant debate is something that frequently occurs on a college campus, an inevitable consequence of bringing together a large number of intelligent people. Debate is a good thing. But it does not follow that universities have a “mission” to foster it, any more than they have a mission to foster conviviality, physical fitness, or any other good thing that could come from the human interactions on a university campus.
If universities have a mission, it is to provide educational services for those who desire them. Some students may be interested in vibrant debate on socioeconomic issues, but others just want to learn their accounting, chemistry, economics, and so forth with as few distractions as possible. That is what they pay for. Of course, it would be unconstitutional for a state university to take steps to suppress speech, but it does not follow that they have an obligation to subsidize it.
The Court’s “vibrant debate” is available, almost instantly if desired, on university campuses without the need for any subsidy from the pockets of uninterested students. Students who desire free expression and interchange of ideas can log onto the Internet, turn on a radio or television, open a newspaper or magazine, or personally attend any of the numerous meetings, lectures, symposia, rallies, and such that swirl around campuses. In the absence of university subsidies, campus organizations such as Madison’s Lesbian, Gay, Bisexual and Transgender Campus Center could still exist, but would have to subsist on funds voluntarily given to them without forcing students like Scott Southworth to help finance them.
Uninterested in Debate
And that observation leads to another: While the Court wraps the warm cloak of “speech” and “debate” around the campus organizations favored with distributions of the mandatory fee money, many of them are not the least bit interested in education, speech, and the marketplace of ideas. If a university were to invite Justice Clarence Thomas to give a talk on the importance of federalism, for example, his appearance would be protested and quite possibly disrupted by some of the same campus organizations that the Court says help to bring about “vibrant debate.” Intervention in the natural order always has unintended consequences; the effort to promote speech and debate by scattering money to an assortment of organizations that have no qualms about receiving funds taken by force is no exception.
The Court erected one more line of defense for its decision: that student tuition helps to pay for the salaries and classes of many professors who espouse ideas that some students find repugnant. It is too bad that students (and taxpayers) have to in any measure support the propagation of ideas they don’t believe. The only solution to that problem is to separate education from the power to tax. With government out of the picture (and it is worth noting that there were nongovernmental universities long before governments pushed their way into the education business), there would be no state action and therefore no constitutional problem.
But given that we have tax-supported universities, why is it a defense for the avoidable institution of mandatory student activity fees to say that there is an unavoidable problem with the employment of professors who will from time to time say things that some student or taxpayer will find objectionable? If the First Amendment protects not just our freedom of speech, but also freedom from having to support the speech of others, shouldn’t we minimize instances of the latter? Since it is possible to let students opt out of a fee system—exactly what Wisconsin proposed to the Seventh Circuit—why does the Court tolerate the attack on the rights of Mr. Southworth? It shouldn’t.
What’s a University to Do?
Southworth is not a convincing essay in constitutional law, but the Court has spoken. If a university wants to have a mandatory fee program to subsidize student organizations on campus, it may do so—as long as the funds are distributed in a “viewpoint neutral” manner.
Just because the practice is not constitutionally prohibited, however, does not mean that a university has to do it. For several reasons, the University of Wisconsin and other tax-supported universities should abandon mandatory student fees as a means of subsidizing selected campus groups.
First and foremost, as Jefferson wrote, “it is sinful and tyrannical to compel a man to furnish money for the propagation of ideas he disbelieves in.” Whether it is compulsory support for an “established” church (the subject of Jefferson’s comment) or compulsory support for a student group devoted to a political or philosophical cause, compulsory funding is inconsistent with individual choice. Universities can demonstrate that they are committed to the freedom of their students to make their own choices and speak for themselves by stopping the practice of mandatory activity fees.
Second, abandoning the mandatory fees program will spare the university the cost of litigation over its “viewpoint neutrality.” There can no more be a definition of or infallible test for “viewpoint neutrality” than there can be one for “pornography.” Any allocation of mandatory fees can be challenged as tending to favor some viewpoints over others, and legal challenges are likely. The Southworth case was in the courts for nearly four years. What a waste of money!
Third, universities that do not resort to mandatory fees can use that fact as a competitive weapon. These days, institutions of higher learning use almost every imaginable tool to persuade students to enroll at their campuses. To know that there will be no compulsory fees given to any group is not just a monetary savings for a student. It’s also a way of saying that the university will respect the student’s autonomy. That may make the difference between getting or not getting a student.
Finally, universities would do the world a favor if they ended the mandatory fee policy that encourages students to look to the political methods of taxation and lobbying to accomplish their objectives and instead required them to adopt the marketplace methods of voluntary exchange and peaceful cooperation. We have quite enough of the former as it is without universities teaching students that the way you get things done is through the use of coercion.
It’s too long for a bumper sticker, but university administrators would be well advised to “Just Say No to Mandatory Fees for Student Organizations!”