Regents: Fee appeal stands strong chance

Supreme Court may consider in spring

UW System regent Toby Marcovich sees a bright spot in the 7th U.S. Circuit Court of Appeals’ ruling last month against the UW–Madison student fee system.

In that decision, the court decided not to reconsider an earlier ruling that struck down the mandatory fees as unconstitutional. The decision supported the contention of three UW–Madison students, who sued the university in 1996 because student fees were used to fund several student groups they opposed on political, ideological or religious grounds. They said the mandatory fees violated their free speech rights.

Yet the Oct. 27 appeals court ruling includes two strongly worded dissenting opinions. Marcovich, an attorney, says those dissents could provide a strong foundation for the board’s appeal of the case to the U.S. Supreme Court. The regents voted to appeal Nov. 6.

“This decision has generated the best dissent in some time,” Marcovich told the regents before their vote. “I feel there is a good chance that this case will be reversed by the Supreme Court.”

The attorney for the students who filed suit against UW–Madison says the dissents articulate a defense of the current system that is better than any other he has seen in the courts.

“But I still think the analysis is wrong,” stressed Jordan Lorence, general counsel for the Northstar Legal Center in Fairfax, Va.

The dissenting opinions provide a succinct preview of the arguments that will likely be made in favor of the current fee system if the nation’s top court agrees to hear the case. The UW System has until late January to submit its appeal, and the high court could take up the case in its spring 1999 term.

In one dissent, Judge Ilana Rovner criticizes the comparison between the student fee system and Supreme Court cases involving dues paid to a teachers union and a state bar association.

In those cases, the dues were used for lobbying and to support political candidates. But student fees are paid to the UW–Madison student government, which then funds student groups regardless of viewpoint, Rovner wrote.

“Because the ‘speech’ of the individual groups cannot be attributed to the student government, it necessarily cannot be attributed to the students paying the fees to the student government,” she wrote.

Political and ideological speech by student groups is central to a university’s educational mission – a mission the Supreme Court supports concerning “robust debate and free expression in a university setting,” Rovner added.

“Our focus should be on the funding by the student government, and whether the expression of ideology by the student group promotes the educational mission, regardless of whether that was the intent of the group,” she wrote.

Judge Diane P. Wood argued in her dissent that the student fees support a neutral forum for speech, similar to if the student government used student fees to build an auditorium and opened it to anyone. She also wrote that the 7th Circuit’s ruling contradicts the 1995 Supreme Court decision in the Rosenberger-University of Virginia case.

That decision, Wood continued, “provides strong support for the characterization of the student activity fee as a forum for speech.” And access to that forum cannot be discriminatory, the Supreme Court ruled. In Rosenberger, the University of Virginia student government denied funds for a campus-based Christian student magazine.

Attorney Lorence takes issue with both dissents. He says Rovner’s dissent fails to note that many student groups don’t receive funding through the student government. Moreover, the university decides where some of the student fees are disbursed, such as for University Health Services.

He believes there is a fundamental difference between a forum for speech continuously supported by money and a physical forum, like an auditorium.

“The forum of money gets consumed,” Lorence says. “WisPIRG (Wisconsin Public Interest Research Group) gets $50,000, and it gets spent. When WisPIRG uses an auditorium, the auditorium is still there when they are done. I think of it much more like a direct subsidy than funding a platform for public speaking.”

And even if the forum for speech is viewpoint-neutral, Lorence says that students shouldn’t be compelled to support it.

“I think the question of how money is distributed is distinct from how money is collected,” he says.

Ironically, Lorence says the Rosenberger case was part of the impetus for the lawsuits around the country that are challenging the student fee systems at many universities. Lorence says he and other attorneys saw the decision as an opening to challenge mandatory student fees as a violation of free speech guaranteed in the First Amendment.