UW System asks Circuit Court to reconsider June 23 Southworth ruling

The Wisconsin Department of Justice, representing the University of Wisconsin System, filed a petition July 7 in the 7th Circuit Court of Appeals, questioning the Court’s June 23 ruling in the Southworth case on the use of student fees to fund student organizations.

In March, the US Supreme Court ruled unanimously, in Board of Regents v. Southworth, that the First Amendment permits a public university to charge students a mandatory activity fee to fund organizations if the process for reviewing and approving funds is done in a “viewpoint neutral fashion.”

Both parties in the case had agreed in a stipulation that student activity funds were distributed on a “viewpoint neutral” basis and that organizations holding a variety of viewpoints had been funded.

The Supreme Court, however, sent back to the lower court for consideration a part of the funding process that involves use of a student referendum to decide funding. A referendum, the Court stated, appears to violate the principle of viewpoint neutrality, since it relies on majority vote. The UW System has since determined that it will no longer use the referendum process to fund student organizations.

In a June 23 ruling, a three-judge panel of the 7th Circuit brought the issue of viewpoint neutrality back into play. Plaintiff Scott Southworth, a former UW–Madison law student, asked the Circuit Court to direct the U.S District Court in Madison to reopen the issue of viewpoint neutrality in the way student organizations are funded. The 7th Circuit said Southworth’s request to disregard the earlier agreement on viewpoint neutrality was “reasonable.”

“Scott Southworth and his attorneys had earlier agreed, and even affirmed in their oral argument before the Supreme Court, that funds were distributed without regard to the viewpoints expressed by student organizations receiving funding.” said Patricia Brady, deputy general counsel for the UW System. “They made a strategic legal decision in agreeing with us on that point, and now they want to undo it.”

The Justice Department’s brief called into question the fairness of the Court’s ruling. “The issue of whether this Court should make substantive rulings on issues to be decided or potentially to be decided in a given case, but without affording the parties an opportunity to be heard, raises an issue of exceptional importance,” the Justice Department stated in its brief.

While the University filed a statement with the 7th Circuit in May identifying the issues that needed to be decided on remand, it was not asked to brief any of the substantive issues addressed in the Court’s remand decision.

The Justice Department, which represents the UW System in litigation, is requesting that both the three-judge panel and the full 11 members of the Court rehear the case.