Board of Regents Univ. Wisc. v. Southworth - Opinion Announcement

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 98-1189, the Board of Regents of the University of Wisconsin versus Southworth will be announced by Justice Kennedy.

Argument of Justice Kennedy

Mr. Kennedy: Like many other Universities throughout the country, the University of Wisconsin requires its students to pay a separate fee in addition to tuition.

The separate fee is called the student activities fee and for the years in question here it was $331 a year.

A portion of the fee is used by various student organizations, some of which promote causes and ideas objectionable to other students.

The objecting students in this case and in other cases around the country have claimed that this forced payment to support objectionable causes and ideas is a violation of their free speech and free association rights under the First and Fourteenth Amendments.

We granted certiorari in the case to address the question.

At the Madison campus of the University of Wisconsin -- again this is typical to many other Universities -- student groups displayed posters and circulate newsletters, they host campus debates, guest speakers and they engage in what is best described as political lobbying.

The University’s position is that the activity fee program stimulates advocacy and debate from diverse points of view and provides students with opportunities to develop their skills all consistent with the University’s mission.

The parties have stipulated in this case that the process for allocating the fees is administered in a viewpoint neutral manner.

The respondents each of whom attended or still attend the University’s Madison campus, filed suit against the University’s Board of Regents alleging the First Amendment violation.

The District Court ruled in favor of the objecting students.

It declared the fee program invalid under our decisions in Abood versus Detroit Board of Education and Keller versus State Bar of California.

Those were cases involving union dues or bar association fees, which were used in part to promote causes to which the union members or the bar members objected.

The United States Court of Appeals for the Seventh Circuit affirmed.

It concluded that the program was not germane to the University’s mission, it did not further a vital policy of the University and it imposed too much of a burden on the free speech rights of the objecting students.

We now reverse and remand for further proceedings.

The University exacts the fees to facilitate the free and open exchange of ideas among its students, since the University conditions the opportunity to receive a college education, an opportunity comparable in importance to joining a labor union or a bar association.

Since it conditions the opportunity to receive that education on payment of fees to support objectionable extracurricular expression by other students.

The First Amendment Rights acknowledged in Abood and Keller due we find become implicated.

Now, in those cases the constitutional rule limited the required subsidy to speech germane to the purpose of the union or the bar association.

The standard of germane speech as applied to student’s speech of the University is unworkable however.

It gives insufficient protection both to the objecting students and to the University program itself.

If as our president have illustrated it is difficult to germane speech with ease or precision where union or a bar association is the party, the standard becomes all the more unmanageable in the public university setting, particularly where the State undertakes to stimulate the whole universe of speech and ideas.

Since the standard of germane speech is inapplicable, it might be argued the remedy is to allow each student to list those causes which he or she will or will not support more or less of the check off system.

If a University decided that its students’ First Amendment interests were best protected by this type of system it would be free to adopt it.

We decline to impose the system as a constitutional requirement however.

The proper means by which the University can protect its students’ First Amendment Rights, we conclude as the requirement of viewpoint neutrality in the allocation of funding support.

Viewpoint neutrality is the obligation to which we gave substance in the earlier decision of Rosenberger versus University of Virginia.

There we held that a public university would not offend the Establishment Clause, if it adhere to viewpoint neutrality and funding student associations including those advancing religious messages.

There is symmetry in our hoarding here and in Rosenberger, viewpoint neutrality permits the University to require the students to pay the fee in first instance and ensures the integrity of the program operation once the funds have been collected.

Because the parties have stipulated the University’s program respects the principle of viewpoint neutrality, the program in its basic structure must be found consistent with the First Amendment.

There is one other aspect of the University’s program at issue in the case funding by student referendum although not well developed on the record before us.

It is unclear to us what protection if any there is for a viewpoint neutrality in the student referendum dimension of the University’s program to the extent the referendum substitutes majority determinations for a viewpoint neutrality, it would undermine the constitutional protection, the program requires.

The remand is necessary to resolve this point.

Justice Souter has filed an opinion concurring in the judgment in which Justices Stevens and Breyer have joined.