State lawyers: Revised student fees process is constitutional

Recent modifications to the university’s segregated fee distribution system ensure that funds are given to student groups regardless of their views, according to lawyers representing the UW System.

If a federal judge does not agree, the UW System Board of Regents will appeal to a higher court, says Wisconsin Attorney General James E. Doyle and Assistant Attorney General Peter C. Anderson.

Doyle and Anderson represent the regents in the case commonly known as “Southworth,” named after former law student Scott Southworth. He sued the university in 1996, saying payment of mandatory student fees forced him to support groups with which he disagreed, in violation of the First Amendment.

The U.S. Supreme Court ruled last March that UW–Madison’s segregated fee system does not compromise First Amendment freedoms, because the funds are distributed to groups on a “viewpoint neutral basis.”

Based on that ruling, Southworth and other plaintiffs then challenged the viewpoint neutrality of the funding system — a point they previously agreed to when they filed their original lawsuit.

U.S. District Court Judge John Shabaz ruled in their favor in December. He said the fee distribution process does not guarantee viewpoint neutrality, because decisions are left to the discretion of student government leaders. He gave the UW System 60 days to devise a new fee distribution system.

Shabaz also ruled against the university in the original case, which prompted the regents to eventually appeal to the U.S. Supreme Court.

Since Shabaz’s ruling, Associated Students of Madison has worked with university administrators and UW System legal staff to modify how student fee decisions are made.

ASM’s changes include required tape recordings of all meetings that include financial decisions. ASM has also set up eligibility criteria for groups that apply for funding to guarantee viewpoint neutrality and instituted an appeals process.

“The changes to the system for distributing student fees are sufficient to protect the plaintiffs’ First Amendment interests against compelled speech,” write Doyle and Anderson in their brief to Shabaz.

In addition, the UW System has updated policies regarding “student discretion” in segregated fees allocation based on Shabaz’s December ruling.

“The changes … require student governments at each UW System institution, in consultation with the chancellors, to develop policies and procedures that set criteria for the allocation of student fees, create records of the allocation deliberations, avoid conflicts of interest, and establish an appeals process where funding decisions are alleged not to have been viewpoint neutral,” UW System President Katharine Lyall wrote in a recent memo.

Lyall’s changes require UW System schools to permit appeals from groups who contend that funding decisions were not made in viewpoint-neutral fashion. UW–Madison has already created that process.

The plaintiffs in the case, meanwhile, recommend that UW–Madison scrap the current process of distributing student fee money and make university administrators responsible for such decisions. The plaintiffs filed documents this week indicating that they believe the university’s proposed remedy is inadequate.

Shabaz is expected to rule on the case after he reviews additional briefs presented by both sides. Should he rule against the UW System, Anderson and Doyle say the regents will appeal. That appeal would be made to the 7th U.S. Circuit Court of Appeals, which previously ruled against the university in the original case.