- The Washington Times - Thursday, March 23, 2000

A unanimous Supreme Court said yesterday that public universities do not violate First Amendment rights by using mandatory student fees to finance campus organizations that students find offensive or politically antagonistic.

"It is not for the court to say what is or is not germane to the ideas to be pursued in an institution of higher learning," Justice Anthony M. Kennedy wrote.

The ruling came in a lawsuit by conservatives against the University of Wisconsin at Madison, with 40,000 students one of the largest in the nation and among the most liberal. Had it gone the other way, the decision could have forced abandonment of a funding system used nationwide.

"Today's ruling is a total victory for the First Amendment. It is clearly desirable for students on university campuses to have the opportunity to hear from many different viewpoints and to be able to express the views that they hold important," Wisconsin Attorney General James E. Doyle said.

An extraordinary 29 friend-of-the-court briefs were filed representing hundreds of groups, with 15 supporting school policy and 14 backing former student Scott H. Southworth. A single brief included many of the 623 groups whose extracurricular activities are financed by the $331.50 yearly fee on the Madison campus, ranging from the East Timor Action Network to the Calvary Lutheran Student Association, the Knitting and Craft Guild, and the campus chapter of the American Civil Liberties Union.

"As a conservative and a Christian, it was frustrating to see the money going to organizations I personally disagree with," said Mr. Southworth, now a lawyer, whose list of 18 groups he didn't support included the Lesbian, Gay, Bisexual and Transgender Campus Center.

"We must begin by recognizing that the complaining students are being required to pay fees which are subsidies for speech they find objectionable, even offensive," Justice Kennedy wrote.

The court splintered 6-3 over portions of the ruling that hinged on stipulations by lawyers for both sides that no group was excluded from the program because of its beliefs in legal terms, the program was "content neutral."

The losing lawyer, Jordan Lorence of Northstar Legal Center in Fairfax, Va., said justices overinterpreted his limited stipulation on content neutrality and apparently failed to recognize a lopsided left tilt among groups getting student-activity money.

"What I thought we were stipulating to is that the university enforced no formal policies that excluded people from applying for money, but we made it clear the money all seemed to go to left-wing groups, so there's something inherently unfair about it," Mr. Lorence said.

"Even if everything is scrupulously neutral, I think people have a right to remain silent and not enter into a debate. These issues should be left to a student's conscience," he said in an interview.

"I agree that the university's scheme is permissible, but [I] do not believe that the court should take the occasion to impose a cast-iron viewpoint-neutrality protection," Justice David H. Souter wrote in a concurring opinion joined by Justices John Paul Stevens and Stephen G. Breyer.

The three agreed with the final decision, but not the reasoning of an opinion they said recognized "a new category of First Amendment interests."

"This is a common-sense adjustment of the court's thinking, based on what they all knew, because they're all familiar with college campuses and they all get fees for speaking on campus," said Thomas E. Baker, a constitutional law professor at Drake University who analyzed the case for the American Bar Association. He said he expected the decision to be a much closer call.

"The case was not so much about student fees as it was about the free exchange of ideas," said Peter Koneazny, ACLU legal director in Wisconsin, who called the outcome a significant victory.

While stressing the court's hesitancy to interfere with academic freedom, Justice Kennedy warned of possible First Amendment violations in Madison's practice of allowing students to vote on some funding or defunding. The Supreme Court sent the case back to the 7th U.S. Circuit Court of Appeals to deal with that practice and reversed it on the main finding.

Justice Kennedy noted that past high court decisions forbid labor unions and bar associations from using member funds for political purposes not "germane" to the organization. But he said this case is different.

"Recognition must be given as well to the important and substantial purposes of the university, which seeks to facilitate a wide range of speech," Justice Kennedy wrote.

He said students may insist upon safeguards regarding activist groups they are required to support, but he did not spell out what they might be.

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