Supreme Court Upholds Public University's Mandatory Student Activities Fees

Co-written by Micheal J. Frevola

As reported in the previous issue, the U.S. Supreme Court recently heard

arguments on whether the First Amendment prohibits a public university from

funding student groups by imposing upon every student a mandatory student

activity fee. In Southworth v. Grebe, 151 F.3d 717 (7th Cir. 1998), the U.S.

Court of Appeals for the Seventh Circuit held that the University of Wisconsin

was constitutionally prohibited from distributing student activity funds to

student groups that engaged in political advocacy or speech without providing a

right for objecting students to "opt out" of funding groups that

espoused ideas with which the dissenting students disagreed. On March 22, 2000,

the Supreme Court reversed, holding unanimously that the University's funding

scheme was constitutional under the First Amendment. The opinion can be found at

Board of Regents v. Southworth, 120 S. Ct. 1346 (2000).

The challenged funding program required each student to pay a mandatory

activity fee. A portion of that fee was placed in a general fund to be

distributed to a wide variety of student groups, some of which engaged in overt

political advocacy. Other students, objecting to the dissemination of

"their" fees to groups that voiced beliefs with which the objecting

students disagreed, demanded a pro rata rebate of their fees and commenced suit

in federal district court in Wisconsin. The objecting students argued, and both

the Wisconsin district court and the Seventh Circuit agreed, that the University's

funding program violated the First Amendment's prohibition against

"compelled speech," which first was recognized by the Supreme Court in

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

In Barnette, the State of West Virginia had enacted a "flag salute"

statute by which all public school students were required to salute the U.S.

flag. After several students challenged the statute when they were suspended

from school for refusing to salute the flag based on religious convictions, the

Supreme Court held that the statute was unconstitutional. The Court ruled that,

not only did the First Amendment's Free Speech Clause guarantee the right of

citizens to speak freely without fear of persecution, but also that the Free

Speech Clause prohibited the government from requiring a citizen to voice

support for ideas that the citizen found objectionable. Later, in Abood v.

Detroit Board of Education, 431 U.S. 209 (1977) and...