Scott Southworth, a graduate of the University of Wisconsin-Madison's law school, is suing his alma mater all the way to the Supreme Court. He has most public universities in the country nervous, because the high court may decide that the mandatory-fee system most schools use to fund student groups is illegal.
Southworth and two fellow Christian law students at the University of Wisconsin (UW) decided five years ago that they did not like their fees supporting groups like the International Socialists Organization and the Lesbian, Gay, Bisexual, and Transgender Campus Center.
When the UW administration did not respond to a letter of concern, the trio contacted the Alliance Defense Fund, a nonprofit legal foundation that supports cases on religious freedom, sanctity of life, and family values.
In 1996 Southworth and his classmates filed their case in federal court. They argued that the First Amendment's guarantees of free speech and free association protect them from subsidizing groups antithetical to Christianity.
"We want to see the university get out of regulating the marketplace of ideas," Southworth says now, after the case has climbed its way to the top of the appellate ladder. "Forced conformity was decried by the Founding Fathers."
The university's case also relies on the First Amendment. "The use of student fees enables the university to create a public forum for student speech," says UW Public Information Director Sharyn Wisniewski. The school believes the funding mechanism helps expose students to a diversity of issues and viewpoints represented by the student organizations.
Fighting For Funds
In 1995-96 UW students paid $331 each for health care and other services, including $26 for student organizations. This year the fees are up to $445 per student, with $34 going to student organizations.
Of about 700 organizations on the UW campus, only about 100 ask for financial support. The Wisconsin Student Public Interest Research Group (WISPIRG) gets one of the largest chunks of money: $49,500 per year when Southworth was a student there, and $74,700 for the current school year.
Mia Scampini, WISPIRG board chairwoman, does not like the handwriting on the wall. "It will have a major impact," she says. "There's nothing we can do about the Supreme Court now. We're trying to be optimistic."
Forced Association
The groups getting the larger donations all have the liberal orientation that so rankled Southworth and his fellow plaintiffs. The case gained plaintiffs as students finished their studies and new students signed on. Diversity is more discernible among groups receiving smaller grants, usually in the range of several hundred dollars. Their ranks include University Bible Fellowship, Wisconsin Christian Student Fellowship, Indonesian Christian Fellowship, and the Pro-Life Action League.
Carrie Hoffman of the Wisconsin Christian Student Fellowship says that group spent its $200 grant on office supplies. The group applied for the money because it was available, Hoffman says, and would not miss the money if Southworth were to win. "I support his argument," she says.
Pro-Life Action League copresident Jolene May says the $570 her group received was a lot more than members expected from Associated Students of Madison (ASM), the school's student government. But the group could live without the money if liberal groups got cut off as well. "We can still pray and educate people without ASM's money," May says.
Free Speech?
An inscription on campus walls says that "the great state University of Wisconsin should ever encourage that continual and fearless sifting and winnowing by which alone truth can be found." But the University of Wisconsin does not have a good record on the First Amendment, says UW political science professor Donald Downs, who teaches a course devoted to the Southworth case.
Controversial conservative figures who appear on campus do not always get to finish their speeches. Most recently shouted down was Ward Connerly, the former University of California regent who is trying to dismantle racial quotas.
Political correctness surfaced on campus a decade ago with speech codes, which prohibited students and faculty from demeaning others on the grounds of race, gender, and physical ability, but not religion. Downs says codes were eventually discarded after they became embarrassing. Sentiment on campus is largely against Southworth, at least among the students Downs teaches.
"But minds have been opened," he says. "They see the whole case law that has developed regarding compelled association and the constitutional tradition related to his claim. They have to give him grudging respect; he's made his case well."
Judicial Track Record
Many mandatory-fee cases have come before the courts in the last quarter-century. Rosenberger v. Rector is perhaps the most important for Southworth (CT, Jan. 9, 1995, p. 47, not available online).
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Ron Rosenberger sued the University of Virginia because other student publications received funds that were denied to the Christian newspaper he published. He won the case, thus opening an equal-access door for student religious groups on university campuses.
Writing in a concurring opinion in Rosenberger, Justice Sandra Day O'Connor suggested that another issue remained: Whether a student should "be compelled to pay for speech with which she disagrees."
That was in 1995. By then, says Southworth, his case was already being formulated. Rosenberger was in the audience when the Supreme Court heard the Southworth case. The two men have become friends and plan to write a book together.
In other recent cases, the Supreme Court has ruled that labor unions and bar associations could not use mandatory fees to support political activities opposed by individual members. During oral arguments on November 9, it was apparent the justices were looking closely at the political nature of many of the advocacy groups funded by UW student fees.
Fifteen states and numerous organizations have submitted briefs supporting the University of Wisconsin. Similar lawsuits have been filed in Minnesota and Oregon. A Supreme Court ruling is not expected until late spring.
Universities do not know what they will do if the justices decide against the fees. Southworth and UW officials both express confidence. But Wisniewski admits that the court may decide not to take either side. "It may come down in the middle," she says.
Federal Judge John Shabaz, who first heard the case, outlined a detailed system for the university based on cases affecting union dues. Justices on the Seventh Circuit Court of Appeals asserted that the university would have to make it possible for students to opt out of the fees. It could not collect the fees and then give them back.
The "United Way approach" has also been discussed. It would let the students pick the groups they want to support from a list provided by the university. "Administratively that would be very difficult," Wisniewski says.
Southworth does not accept the United Way approach. But he insists he is not trying to destroy the student groups, even the ones he dislikes. He just wants to make the system fair.
If Southworth wins, 70 percent of U.S. colleges—those that finance student groups through mandatory fees—will be affected. "It will be explosive if the court rules in his favor," says Downs.
Related Elsewhere
The most in-depth coverage of the case is at the University of Wisconsin's Southworth Project site, where students of the law school, the school of journalism and student newspaper file regular stories.
Read the United States Court of Appeals decision for Southworth here, among other places on the Web, and the Supreme Court's Rosenberger decision here.
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