Attorney takes fee case to the high court

Background on the case

It’s the ultimate experience for a lawyer – arguing a case before the U.S, Supreme Court. Susan Ullman will achieve that career peak as she defends the university’s student fee system before the high court Nov. 9.

“For me, it sure is a highlight,” says Ullman, a Wisconsin assistant attorney general, who is making her first appearance before the Supreme Court.

Ullman is preparing for the exhilarating, yet grueling, experience by practicing her argument in what is known as moot court, where people pretend they are the nine Supreme Court justices and ask questions about the case.

“I’m trying to hear as many tough questions as I can so I will be prepared for them,” Ullman says.

Ullman has worked on the case since 1996, when it was filed in U.S. District Court. Assistant Attorney General Peter Anderson is co-counsel with Ullman on the case, referred to now as Board of Regents v. Southworth. As in all university litigation, the state Attorney General’s office represents the UW System Board of Regents.

Ullman is no stranger to UW–Madison. Since joining the Department of Justice in 1993, she has represented the university in cases involving academic misconduct, admissions decisions and residency determinations.

Moreover, her husband, Arik Levinson, teaches at UW–Madison. She and her husband moved to Madison in 1993 when he was offered an assistant professorship in the Department of Economics.

A Harvard grad, Ullman completed her law degree at Columbia University and clerked for Federal District Judge John R. Bartels of the Eastern District of New York before going into private practice. She specialized in antitrust law at the New York City law firm of Cravath, Swaine and Moore before coming to Madison.

Ullman says she prefers working in the public arena rather than the private sector.

“Here, my cases are my own, although I do have a co-counsel with this case,” she says. “At the firm, I would still be considered very junior, and I don’t think I would ever get the opportunity to go before the Supreme Court.”

The arguments before the Supreme Court are highly prescribed. Ullman will argue first, as she represents the side that appealed to the court. She will be allotted 30 minutes total, generally broken down as 25 minutes for the argument and five minutes for rebuttal. The attorney for the students suing the university will argue second and be allotted the same amount of time. But the arguments are almost always punctuated by questions from the justices, so attorneys need to be prepared to address a range of issues related to the case.

“There will probably be some hypothetical questions, so I’m trying to anticipate the big-picture items that may go beyond a university campus,” Ullman says. “Such as, what if the university had put the student fees directly into tuition, or can a person opt out of funding a forum anywhere?”

The students who filed the lawsuit claim mandatory fees force them to support student groups with which they disagree, violating their First Amendment rights of free speech and freedom of association. The university maintains the student fees create an educational forum for speech and are constitutional.

“My main points before the court will be that these fees fund all of the activity that makes a campus a lively, interesting, thought-provoking place, and that is furthering the First Amendment principle of free speech,” Ullman says.

The court is expected to issue its ruling sometime next spring.