Amicus Curiae Brief — Board of Regents of Univ. of Wis. System v. Southworth

IN THE

Supreme Court of the United

THE BOARD OF REGENTS OF THE UNIVERSITY

OF WISCONSIN SYSTEM, et al.,

Petitioners,

v.

ScoTT HAROLD SOUTHWORTH, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF AMICI CURIAE AMERICAN COUNCIL ON

EDUCATION, AMERICAN ASSOCIATION OF

COMMUNITY COLLEGES, AMERICAN ASSOCIATION

OF STATE COLLEGES AND UNIVERSITIES,

AMERICAN COLLEGE PERSONNEL ASSOCIATION,

ASSOCIATION OF AMERICAN COLLEGES AND

UNIVERSITIES, ASSOCIATION OF AMERICAN

UNIVERSITIES, NATIONAL ASSOCIATION OF

STATE UNIVERSITIES AND LAND-GRANT

COLLEGES, NATIONAL ASSOCIATION OF STUDENT

FINANCIAL AID ADMINISTRATORS, NAWE:

ADVANCING WOMEN IN HIGHER EDUCATION, AND

THE COLLEGE BOARD IN SUPPORT OF PETITIONERS

Of Counsel: STEPHEN S. DUNHAM *

SHELDON E. STEINBACH RENATA K. BAUMAN

AMERICAN COUNCIL ON MORRISON & FOERSTER LLP

EDUCATION 370 17th Street, #5200

One Dupont Circle Denver, Colorado 80202

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* Counsel of Record Counsel for Amici Curiae

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aoe?

.

TABLE OF CONTENTS

QUESTION PRESENTED 0.20. ..........-cccccceceeceseeensenesenees

TABLE OF AUTHORITIES ..00........cccccccccceceeseeeees

INTERESTS OF AMICI CURIAE 2000s

I. A UNIVERSITY'S USE OF COMPULSORY

FEES TO CREATE A STUDENT ACTIVITY

FUND SHOULD BE ANALYZED AS THE

CREATION OF A FORUM, RATHER THAN

AS COMPELLED SPEECH AND ASSOCIA-

TION . ee

A. A University, as a Marketplace of Ideas, Has a

Compelling Interest in Promoting the Presence

of a Diversity of Viewpoints 0...

B. Consistent with the First Amendment, a Uni-

versity Can Use Mandatory Fees to Fund a

Neutral Forum that Helps Support a Diverse

Variety of Organizations 1 a ao

C. The Cases Cited By the Court Below Do Not

Support the Proposition that this Case Should

Be Analyzed Under the Standards of Abood-

Keller Rather Than Under the Standards of

Forum Creation .

Il. EVEN IF A UNIVERSITY'S USE OF MAN-

DATORY FEES TO FUND STUDENT GOV-

ERNMENT AND ORGANIZATIONS IS ANA-

LYZED UNDER ABOOD-KELLER AS COM-

PELLED SPEECH AND ASSOCIATION,

RATHER THAN AS THE CREATION OF A

NEUTRAL FORUM, SUCH A USE OF FEES

DOES NOT VIOLATE THE FIRST AMEND-

MENT

(iii)

iv

TABLE OF CONTENTS—Continued

A. The Challenged Use of Mandatory Fees Is Ger-

mane to a University’s Broad Educational Mis-

sion, Including Its Interests in Promoting Di-

verse a email and in sete a Market-

place of Ideas .. lide

B. Courts Should Afford Universiiics Wide Latitude

Ill.

to Determine Whether the Use of Student Fees

Is Germane to Their Educational Mission..........

FORCING THE UNIVERSITY TO DISTIN-

GUISH BETWEEN “EDUCATIONAL” ORGA-

NIZATIONS AND “POLITICAL” OR “IDEO-

LOGICAL” ORGANIZATIONS RISKS VIO-

LATING STUDENTS’ FIRST AMENDMENT

RIGHTS ........... ~aesenmntimnanceatzenteemnananetisapennsianmnines .

CIR II aecesccscrcnscsecenssssnsccnsncttons

Page

14

16

17

21

v

TABLE OF AUTHORITIES

CASES Page

Abood v. Detroit Bd. of Educ., 481 U.S. 209

OO SSS Se eo 8, 12, 18, 14, 15

Board of Regents of the Univ. of Wis. v. South-

worth, 119 S. Ct. 1882 (1999) 4

Carroll v. Blinken, 957 F.2d 991 (2d Cir. 1992)_.7, 15, 17

Galda v. Rutgers, 772 F.2d 1060 (3d Cir. 1985)... 12

Healy v. James, 408 U.S. 169 (1972) 0... 5

Hollingsworth v. Lane Community College, No. 97-

35451, 1999 U.S. App. LEXIS 5891 (9th Cir.

| Gl ee ee ae a 15

Kania v. Fordham, 702 F.2d 475 (4th Cir. 1983)... 7

Keller v. State Bar of Cal., 496 U.S. 1 (1990) ...8, 12, 13,

14, 15

Keyishian v. Board of Regents of Univ. of N.Y.,

sf) ) §. aa aes ao 5, 16, 17

Lambs Chapel v. Center Moriches Union Free Sch.

Dist., 608 U.S. 384 (1908) 2.2... cece. 19

Lee v. Weisman, 505 U.S. 577 (1992) ......... initial a 5

Lehnert v. Ferris Faculty Ass'n., 500 U.S. 507

a en ee ee 13

Regents of the Univ. of Cal. v. Bakke, 438 U.S.

Fe ee ee ee 6

Regents of the Univ. of Mich. v. Ewing, 474 U.S.

eh SS fib. do crchicatatitaiachticncnininchatiniciinnaticieeiattlaitiinntiti 16

Rosenberger v. Rector & Visitors of the Univ. of

Va., 616 U.S. 819 (1906) .................................. 10, 12, 19

Rounds v. Oregon State Bd. of Higher Educ., 166

P.Od 1068 (Sth Cir. 1900) —......2..22.-cccenccceeees--. 9, 14,17

Smith v. Regents of the Univ. of Cal., 844 P.2d

Ey eee ae ee eee ee 7,18

Smith v. Regents of the Univ. of Cal., 65 Cal. Rptr.

94 S18 (Cal. Ct. App. 1987) .................................. 15

Southworth v. Grebe, 151 F.3d 717 (7th Cir. 1998).. 3, 12,

13, 16, 17, 19

Southworth v. Grebe, 157 F.3d 1124 (7th Cir.

EE a ae ee re 8, 9, 10, 11, 20

Sweezy v. New Hampshire, 354 U.S. 284 (1957) ..5, 8, 16,

17

vi

TABLE OF AUTHORITIES—Continued

Veed v. Schwartzkopf, 368 F. Supp. 149 (D. Neb.),

aff'd, 478 F.2d 1407 (8th Cir. 1978) .00000000...

Page

7

Widmar v. Vincent, 454 U.S. 268 (1981) .............. 6, 10, 11

STATUTES AND RULES

Higher Education Amendments of 1998, Pub. L.

No. 105, § 868, 112 Stat. 1681 .

Supreme Court Rule 87.3

Supreme Court Rule $7.6 ...............................-............

OTHER AUTHORITY

Carolyn Wiggin, Note, A Funny Thing Happens

When You Pay for a Forum: Mandatory Stu-

dent Fees to Support Political Speech at Public

Universities, 108 Yale L.J. 2009 (1994)...

Derek C. Bok, Higher Learning (1986) .................

Frederick Rudolph, The American College & Uni-

versity: A History (1990) 00000

Kari Thoe, Note, A Learning Experience: Discov-

ering the Balance Between Fees-Funded Public

Fora and Compelled-Speech Rights at American

Universities, 82 Minn. L. Rev. 1425 (1998) _......

Robert M. O'Neil, Student Fees and Student

Rights: Evolving Constitutional Principles, 25

| eye 11, 15, 20

William Walsh, Comment, Smith v. Regents of the

University of California: The Marketplace is

Closed, 21 J.C & U.L. 405 (1994) 0...

In THE

Supreme Court of the United States

No, 98-1189

Tue BoarD OF REGENTS OF THE UNIVERSITY

OF WISCONSIN SYSTEM, ef al.,

Petitioners,

v.

Scott HAROLD SOUTHWORTH, ef al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF AMICI CURIAE AMERICAN COUNCIL ON

EDUCATION, AMERICAN ASSOCIATION OF

COMMUNITY COLLEGES, AMERICAN ASSOCIATION

OF STATE COLLEGES AND UNIVERSITIES,

AMERICAN COLLEGE PERSONNEL ASSOCIATION,

ASSOCIATION OF AMERICAN COLLEGES AND

UNIVERSITIES, ASSOCIATION OF AMERICAN

UNIVERSITIES, NATIONAL ASSOCIATION OF

STATE UNIVERSITIES AND LAND-GRANT

COLLEGES, NATIONAL ASSOCIATION OF STUDENT

FINANCIAL AID ADMINISTRATORS, NAWE:

ADVANCING WOMEN IN HIGHER EDUCATION, AND

THE COLLEGE BOARD IN SUPPURT OF PETITIONERS

2

INTEREST OF AMICI CURIAE

The American Council on Education (“ACE”) is a

non-profit national educational association founded in

1918. ACE’s membership includes approximately 1,800

public and private colleges, universities, and educational

organizations throughout the United States. As a leading

participant in higher education affairs, ACE seeks to pro-

mote the interests of all members of the academic com-

munity—students, faculty, administration, and the institu-

tions themselves. ACE participates as an amicus curiae

only on rare occasions when a case presents issues of

substantial importance to higher education in the United

States. This is such a case.

The remaining amici on this brief are: the American

Association of Community Colleges, which represents

1,100 two-year institutions; the American Association of

State Colleges and Universities, which represents over 370

state colleges and universities, sponsors research, and pub-

lishes reports on higher education; the American College

Personnel Association, which represents over 6,500 col-

_lege and university student affairs professionals; the As-

sociation of American Colleges and Universities, which

represents over 650 public and private colleges and uni-

versities with the purpose of improving liberal education;

the Association of American Universities, which repre-

sents 62 major research universities; the National Associa-

tion of State Universities and Land-Grant Colleges, which

represents over 170 public research universities; the Na-

1 Pursuant to Supreme Court Rule 37.6, counsel for amici curiae

state that those attorneys listed on this brief authored the brief in

whole. No person or entity, other than amici curiae, their mem-

bers, or their counsel, made a monetary contribution to the prepara-

tion or submission of this brief. The parties have consented to the

filing of this brief amicus curiae. Letters of consent as required

by Supreme Court Rule 37.3 are appropriately filed with the Clerk

of this Court.

3

tional Association of Student Financial Aid Administra-

tors, which represents over 3,200 postsecondary institu-

tions, individuals, agencies and students and seeks to

promote effective administration of student financial aid;

NAWE: Advancing Women in Higher Education, which

serves administrators, faculty and students, plus leaders

from associations, business, and government agencies with

the purpose of advancing women in higher education and

related fields; and The College Board, which represents

over 3,300 colleges and universities, secondary schools,

university and school systems, and education associations

and agencies and seeks to maintain academic standards

and to broaden access to higher education.

The freedom of universities to define and pursue their

educational mission is of vital concern to amici. Funda-

mental to that mission is the ability of a university to

create on its campus a “marketplace of ideas”—exposing

students to diverse views, offering opportunities for robust

debate, and allowing presented truths to compete for

understanding and acceptance. This marketplace includes

not only the classroom but also many other aspects of

university life, including participation in student govern-

ment and student activity groups. By funding these groups

through student fees, universities create an on-campus

forum for the expression of a wide range of viewpoints

on a variety of issues.

This Court has granted certiorari to review the decision

of the United States Court of Appeals for the Seventh

Circuit in Southworth v. Grebe, 151 F.3d 717 (7th Cir.

1998) (“Southworth I’), and has certified as the ques-

tion before it “[w]hether the First Amendment is offended

by a policy or program under which public university

students must pay mandatory fees that are used in part

to support organizations that engage in political speech.”

4

Board of Regents of the Univ. of Wis. v. Southworth,

119 S. Ct. 1332, 1332 (1999). This issue is of great

concern to the many public universities that collect some

type of mandatory student fee and is therefore of great

concern to amici.

Amici request that this Court answer the question certi-

fied in the negative and reverse the decision below for the

following three reasons.

-

First, a university's use of mandatory fees to create a

fund that provides support on a neutral basis to a broad

array of different organizations does not offend the First

Amendment. This funding does not compel speech or

association connected with any particular viewpoint. In-

stead, the mandatory fees collected by the University of

Wisconsin merely create a forum for the expression of

diverse perspectives.

Second, even if this use of fees does rise to the level of

compelled speech or association, it does not run afoul of

the First Amendment. Support of a student activity fund,

and of the organizations that ultimately receive support

from the fund, is germane to a university's effort to fur-

ther its educational mission by fostering and sustaining

a marketplace of ideas.

Finally, requiring universities to distinguish “political”

from “non-political” or “ideological” from “non-

ideological” organizations, and to discriminate in funding

based upon these distinctions, would compel universities

to engage in conduct that is, at best, impracticable, and,

at worst, unconstitutional.

5

ARGUMENT

I. A UNIVERSITY’S USE OF COMPULSORY FEES

TO CREATE A STUDENT ACTIVITY FUND

SHOULD BE ANALYZED AS THE CREATION OF

A FORUM, RATHER THAN AS COMPELLED

SPEECH AND ASSOCIATION

A. A University, as a Marketplace of Ideas, Has a

Compelling Interest in Promoting the Presence of

a Diversity of Viewpoints

“It is the business of a university to provide that

atmosphere which is most conducive to speculation, ex-

periment and creation.’” Sweezy v. New Hampshire, 354

U.S. 234, 263 (1957) (Frankfurter, J., concurring)

(quotation omitted). A university can provide this atmos-

phere only by offering an environment in which a rich

diversity of ideas, values, and perspectives is championed

and challenged. In this sense, “[t]he college classroom

with its surrounding environs is peculiarly the ‘market-

place of ideas.” Healy v. James, 408 U.S. 169, 180

(1972) (quoting Keyishian v. Board of Regents of Univ.

of N.Y., 385 U.S. 589, 603 (1967)).

This marketplace trains future citizens and leaders by

providing “wide exposure to that robust exchange of ideas

which discovers truth ‘out of a multitude of tongues.”

Keyishian, 385 U.S. at 603 (quoting United States v.

Associated Press, 52 F. Supp. 362, 372 (D.N.Y. 1943)).

If a university is to provide such training, some members

of the academic community will inevitably encounter

speech that they find unfamiliar, even abhorrent. Fur-

thermore, learning to tolerate and respond to such speech

is an important part of the educational process. “To

endure the speech of false ideas or offensive content and

then to counter it is part of learning how to live in a

pluralistic society, a society which insists upon open dis-

6

course towards the end of a tolerant citizenry.” Lee v.

Weisman, 505 U.S. 577, 590 (1992).

The marketplace extends beyond the classroom to

extracurricular activities, which are “a critical aspect of

campus life.” Widmar v. Vincent, 454 U.S. 263, 279 n.2

(1981) (Stevens, J., concurring). Education involves

more than tests, textbooks, lectures, and libraries. Funda-

mentally, it is about the development of character. Con-

sequently, education does not end at the classroom door,

but permeates campus and university life. As this Court

recognizes, a “great deal of learning occurs informally.”

Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265,

313 n.48 (1978) (opinion of Powell, J.) (quoting Wil-

liam J. Bowen, Admissions and the Relevance of Race,

Princeton Alumni Weekly 7, 9 (Sept. 26, 1977)). In-

deed, since the nineteenth century, extracurricular activi-

ties have played an increasingly significant role in advanc-

ing the core mission of universities:

Over time . . . extracurricular programs have come

to be seen not merely as useful services but as an

integral part of the educational process itself. Edu-

cators point to the dangers of a college that stresses

only learning and cognitive skills while ignoring op-

portunities for students to engage in cooperative ac-

tivities in which each relies on the efforts of others

and is relied upon by others in return. . . . More

and more, [extracurricular activities] are regarded

not only as a source of enjoyment but as ideal ex-

periences for learning to cooperate and take responsi-

bility for the welfare of one’s peers.

2See Higher Education Amendments of 1998, Pub. L. No. 105-

244, § 863, 112 Stat. 1581, 1826 (Congress recognizes that “the

development of virtue and moral character, those habits of mind,

heart, and spirit that help young people to know, desire, and do

what is right, has historically been a primary mission of colleges

and universities ....”’).

7

. . The contemporary college or university does

not concentrate only on formal education; it assumes

the larger responsibility of promoting human develop-

ment in all its forms.

Derek C. Bok, Higher Learning 51-52 (1986); see also

Frederick Rudolph, The American College & University:

A History 136-55 (1990) (describing the increasing sig-

nificance of extracurricular activities in the history of

American colleges and universities). In sum, “[t]he work

of a university cannot . . . be measured strictly in terms

of courses, curricula, and examinations. Dewey wrote,

‘The only way to prepare for social life is to engage in

social life.” Smith v. Regents of the Univ. of Cal., 844

P.2d 500, 526 (Cal. 1993) (Arabian, J., dissenting)

(quotation omitted).

Numerous lower courts recognize that education ex-

tends beyond the classroom and that a university’s educa-

tional mission therefore includes the funding of campus

activities, such as student groups and newspapers. See,

e.g., Carroll v. Blinken, 957 F.2d 991, 1000 (2d Cir.

1992) (recognizing the “quite common vision of the uni-

versity as more than the sum of classes in its course

catalog—as a sort of sanctuary where young adults grow

in a myriad of ways,” and upholding the use of mandatory

fees to fund a public interest research organization);

Kania v. Fordham, 702 F.2d 475 (4th Cir. 1983) (up-

holding student funding of a university newspaper); Veed

v. Schwartzkopf, 353 F. Supp. 149 (D. Neb.) (upholding

the use of mandatory student fees to subsidize a school

newspaper), affd, 478 F.2d 1407 (8th Cir. 1973).

Lower courts have acknowledged the important educa-

tional interests advanced by student groups, including

“the promotion of extracurricular life, the transmission

of skills and civic duty, and the stimulation of energetic

campus debate.” Carroll, 957 F.2d at 1001.

In sum, colleges and universities hold a unique posi-

tion in our society and pursue a correspondingly unique

mission. Their business is to provide “that atmosphere

which is most conducive to speculation, experiment and

creation.” Sweezy, 354 U.S. at 263 (Frankfurter, J., con-

curring). This mission can be achieved only by fostering

a marketplace of ideas on campus and by ensuring that

the resultant diversity of thoughts and perspectives in-

forms the full range of experiences—from course selec-

tions to lecture series to student organizations. If a uni-

versity is barred from this essential business, it cannot

prepare its students “to live in a pluralistic society, a

society which insists upon open discourse towards the end

of a tolerant citizenry.” Lee, 505 U.S. at 590.

B. Consistent with the First Amendment, a University

Can Use Mandatory Fees to Fund a Neutral Forum

that Helps Support a Diverse Variety of Organi-

zations

In holding that the University of Wisconsin violated

the First Amendment, the Seventh Circuit relies upon

cases such as Abood v. Detroit Board of Education, 431

U.S. 209 (1977), and Keller v. State Bar of California,

496 U.S. 1 (1990). Those cases, however, involve nei-

ther the special mission of higher education nor university

funding of a neutral forum. Rather, those cases address

direct and compulsory funding of specific organizations—

a union in Abood, and a state bar in Keller—that took

positions on political and ideological issues. For First

Amendment purposes, the distinction is critical. The im-

portance of this distinction was underscored by the three

judges who dissented from the denial of rehearing en banc

in this case. See Southworth v. Grebe, 157 F.3d 1124

(7th Cir. 1998) (“Southworth IT’) (Rovner, J., dissent-

ing). As the Southworth Il dissenters recognized, in

Abood and Keller the recipients of the funds themselves

engaged in the challenged speech. In those cases, “the

private groups were funded because of their political and

ideological positions, and for the purpose of furthering

those positions. Therefore, the speech presented by those

groups was attributable to the union and the bar associa-

tion.” Southworth II, 157 F.3d at 1126.

In contrast, students at the University of Wisconsin

(and many other colleges and universities) pay fees not

to particular groups but to the student government, which

then uses the money to fund a wide array of organiza-

tions in a viewpoint-neutral manner.’ “The speech of the

offending groups can hardly be attributed to the student

government, which funds groups of radically different

views.” Id. at 1125. “[T]he student government has not

aligned itself with any political or ideological viewpoint.

It does not fund the groups because of their political or

ideological speech, and no one even suggests that the

speech engaged in by those groups can be attributed to

the student government itself.” Jd. at 1126; see also

Rounds v. Oregon State Bd. of Higher Educ., 166 F.3d

1032, 1037-38 (9th Cir. 1999) (“[T]he challenge in this

case does not present an instance of compelled personal

speech, for no personal speech is compelled from anyone.

No student is required to ‘confess by word or act’ belief

in any message .. . .”) (quotation omitted); Kari Thoe,

Note, A Learning Experience: Discovering the Balance

Between Fees-Funded Public Fora and Compelled-Speech

Rights at American Universities, 82 Minn. L. Rev. 1425,

1445 (1998) (“While union and bar dues are used to

3 The only exception to this procedure may be Wisconsin PIRG,

for which funding is authorized by direct student referendum.

(Pet’r Pet. Writ Cert. at 6.) This brief does not address the

separate and different issue raised by this direct funding, although

the “germaneness” analysis discussed below would apply to this

funding as well.

10

fund the voice of one entity—the union or bar associa-

tion, respectively—the student fees are used to fund a

public forum.”).

The University of Wisconsin simply requires its stu-

dents to support a neutral forum, just as if it “built a

large auditorium and held it open for everyone.” South-

worth II, 157 F.3d at 1129 (Wood., J., dissenting). The

fact that this case concerns a fund, rather than a physical

space like an auditorium or an amphitheater, does not

mean that forum analysis does not apply. To the con-

trary, in Rosenberger v. Rector & Visitors of the Uni-

versity of Virginia, 515 U.S. 819 (1995), this Court

recognizes that, although a student activity fund “is a

forum more in a metaphysical than in a spatial or geo-

graphic sense,” nevertheless “the same principles are ap-

plicable.” Jd. at 830.

Application of these principles makes clear that a criti-

cal difference exists between (a) supporting a forum and

(b) supporting the speakers that ultimately use that

forum. Thus, in Widmar v. Vincent, 454 U.S. 263

(1981), this Court rejected a university’s argument that

if it were to allow religious groups to use its buildings it

would create an impression that it endorsed religion in

violation of the Establishment Clause: “[B]y creating a

forum the University does not thereby endorse or promote

any of the particular ideas aired there.” Jd. at 272 n.10.*

A student compelled to pay a restoration fee for a uni-

versity amphitheater can hardly complain that her First

4 See also Carolyn Wiggin, Note, A Funny Thing Happens When

You Pay fora Forum: Mandatory Student Fees to Support Politi-

cal Speech at Public Universities, 103 Yale L.J. 2009, 2017 (1994)

(“[T)he lack of content-based standards . . . enables the system

to support a legitimate campus forum, and this in turn creates a

distance between those who fund the forum and any particular

view expressed within it, thus avoiding unconstitutional forced

speech.”’).

Robert M. O'Neil, Student Fees and Student Rights:

Evolving Constitutional Principles, 25 J.C. & U.L. 569,

574 (1999) (“As for the funded groups .. . the in-

escapable variety—indeed cacophony—of their publicly

expressed views avoids any plausible inference or attribu-

tion of sponsorship on the part of any individual dues

payer.”). Neutral funding of student groups creates a

neutral forum; it does not constitute endorsement or pro-

motion. See Widmar, 454 U.S. at 272 n.10 (“Undoubtedly

many views are advocated in the forum with which the

University desires no association.” ).

It is true that the funds at issue here ultimately find

their way to organizations that engage in political and

ideological activities. As the Southworth II dissenters ob-

served, however, “[t]he chain of custody of the funds

cannot itself be enough to raise a constitutional issue.”

Southworth II, 157 F.3d at 1126 (Rovner, J., dissent-

ing). If the “chain of custody” were to suffice, endless

constitutional absurdities would follow. Students could

challenge tuition payments that supported research, faculty

appointments, class topics, or lectures with which they

philosophically disagreed. See id. at 1126, 1128. This

result would destroy public education and the use of

public fora of all kinds to support discussion of issues of

public interest and concern.

Southworth I, 151 F.3d at 722-23. In so holding, South-

worth I points to some dicta in Rosenberger that refers

to Abood and Keller. See Southworth I, 151 F.3d at

722. Amici respectfully submit that the court below at-

tached excessive significance to this passing reference and

too little to Rosenberger’s unequivocal declaration that it

was not addressing the question now presented.

The court below further stated that, “[nJot only does

Rosenberger direct us to Abood and Keller, but every

other circuit to have considered the constitutional uses

of mandatory student activity fees has applied [this] anal-

ysis (although the circuits are split on how exactly the

analysis applies).” Southworth I, 151 F.3d at 723. Al-

though the cases cited do refer to Abood and Keller,

unlike Southworth I, they also recognize the important

difference between mandatory funding of a neutral forum

and mandatory funding of an organization that itself en-

gages in political or ideological activity. For example,

Galda v. Rutgers, 772 F.2d 1060, 1067 (3d Cir. 1985),

strikes down a university’s use of mandatory fees to fund

a public interest group separately listed on students’ bills,

but distinguishes that situation from one in which student

groups compete for their fair share of contributions from

an “activity fund.”

In sum, because of the unique mission of universities

in our society, the particular nature and purpose of stu-

dent activity funds in assisting universities to achieve that

mission, and the neutral role of the student government

13

in distributing the fees, forum analysis rather than Abood-

Keller analysis applies here.

Il. EVEN IF A UNIVERSITY’S USE OF MANDATORY

FEES TO FUND STUDENT GOVERNMENT AND

ORGANIZATIONS IS ANALYZED UNDER ABOOD-

KELLER AS COMPELLED SPEECH AND ASSO-

CIATION, RATHER THAN AS THE CREATION OF

A NEUTRAL FORUM, SUCH A USE OF FEES

DOES NOT VIOLATE THE FIRST AMENDMENT

The court below holds that the question presented by

the use of fees is “whether the challenged activity is ger-

mane to the government’s asserted interest.” Southworth

I, 151 F.3d at 724.5 The court acknowledges the interest

articulated by the University. “{F]unding private organi-

zations which engage in political and ideological activities

is germane to education because the funding allows for

more diverse expression and this in turn is educational.”

Id. Southworth I concludes, however, that “ ‘germane-

ness’ cannot be read so broadly as to justify the compelled

funding of private organizations which engage in political

and ideological advocacy, activities and speech.” Id.

Amici submit that this conclusion is flawed in two sig-

nificant respects. First, Southworth I wrongly assumes

that the breadth of a university's educational mission is

analogous to the breadth of a union’s interest in collective

bargaining (Abood) or a state bar’s interest in regulating

the legal profession (Keller). See Southworth I, 151

F.3d at 725. Second, the court fails to grant an appro-

priate level of deference to the University’s judgment

5 Southworth I goes beyond the germaneness test of Abood and

Keller to apply the three-prong test adopted by a plurality in

Lehnert v. Ferris Faculty Association, 500 U.S. 507 ( 1991). See

Southworth I, 151 F.3d 717, 724 (7th Cir. 1998). The reasons

stated here to distinguish Abood and Keller distinguish Lehnert

as well.

14

about the nature of its educational mission and the best

ways to advance that mission.

A. The Challenged Use of Mandatory Fees Is Ger-

mane to a University’s Broad Educational Mission,

Including Its Interests in Promoting Diverse Ex-

pression and in Providing a Marketplace of Ideas

Abood and Keller involve contexts very different from

colleges and universities. Keller holds that compulsory

state bar dues cannot be used to finance ideological activi-

ties unrelated to the purposes of the compelled associa-

tion—regulation of the legal profession and improvement

of legal services. Similarly, Abood holds that a union

may not use a dissenting individual’s dues to fund ideo-

logical activities not germane to collective bargaining.

The purposes of the State Bar in Keller, to supervise

attorney conduct, and of the union shop in Abood, to

negotiate contracts, are relatively narrow and definable.

The educational mission of a university is substantially

broader. See Rounds, 166 F.3d at 1039 (“The goals of

the university are much broader than the goals of a labor

union or a state bar, and they are inextricably connected

with the underlying policies of the First Amendment.”).*

It is the business of a university to create a market-

place of ideas, exposing its students to a broad range of

viewpoints on many issues, including the political and

the ideological. This happens in classrooms—in courses

in history, literature, political science, sociology, philos-

6 See also William Walsh, Comment, Smith v. Regents of the

University of California: The Marketplace is Closed, 21 J.C. &

U.L. 405, 423 (1994) (“[T)he organizations’ purposes in Keller

and Abood were much narrower than the university’s purpose. It

is much easier to see something as ‘political’ or ‘ideological,’ and

therefore ineligible for funding, because it is unrelated to collec-

tive bargaining, than it is to distinguish the same from an ‘educa-

tional mission.’ ”’).

a university may allocate student activity fees to a group

with whose speech some students disagree. See Carroll

v. Blinken, 957 F.2d 991, 992 (2d Cir. 1992). Carroll

tion of energetic campus debate.” Jd. at 1001; see also

Hollingsworth v. Lane Community College, No. 97-3545 1,

7 For a helpful discussion of the hi f

be istory of this case, see O'Neil,

16

Southworth I errs by construing narrowly the breadth of

a university’s educational mission.

B. Courts Should Afford Universities Wide Latitude

to Determine Whether the Use of Student Fees Is

Germane to Their Educational Mission

Amici respectfully submit that the court below failed

to give proper deference to the University of Wisconsin’s

decision that the use of mandatory fees advances its edu-

cational mission. Universities have interests in academic

freedom that are a special concern of the First Amend-

ment. This freedom is lost if courts do not afford uni-

versities discretion to define the contours of their educa-

tional mission and to determine the most effective means

of achieving it. Judicial intervention in academic decision-

making affects not only the academic freedom of the

university, but it results as well in a loss of the freedom

of the students, faculty, and other members of the

academic community, all of whom participate in and help

to create the marketplace of ideas.

For these reasons, this Court has recognized that gov-

ernment intervention in the intellectual life of a university

is to be avoided. See, e.g., Sweezy, 354 U.S. at 262

(Frankfurter, J., concurring). Universities are “charac-

terized by the spirit of free inquiry,” and academic free-

dom gives the university the ability “to determine for

itself on academic grounds who may teach, what may be

taught, how it sh; 'l be taught, and who may be admitted

to study.” Id. at 262-63; see also Keyishian, 385 U.S. at

602-03; Regents of the Univ. of Mich. v. Ewing, 474

U.S. 214, 225-26 (1985) (reaffirming the principle of

“restrained judicial review of the substance of academic

decisions” and noting judicial “reluctance to trench on

the prerogatives of state and local educational institu-

tions”). Lower courts follow this authority and stress

17

their reluctance to second-guess university judgments on

such matters. See, e.g., Carroll, 957 F.2d at 999

(“[A]cademic freedom . . . would not long survive in any

meaningful way if courts were to take upon the task of

micromanaging the everyday affairs of our nation’s col-

leges.”); Rounds, 166 F.3d at 1039 (“{A] university's

determination that an organization contributes to the uni-

versity community is presumptively valid.” ).

In this case, the University »f Wisconsin—a campus

with a rich history of the “robust exchange of ideas,”

Keyishian, 385 U.S. at 603—made a judgment that fund-

ing a forum that supports a wide variety of student groups,

including some engaged in political and ideological activi-

ties, plays an important role in its educational mission.

This decision deserves respect, “breathing room,” and

some significant measure of deference. Southworth I im-

properly limited the University’s academic freedom to de-

cide how its students “shall be taught,” Sweezy, 354 U.S.

at 263 (Frankfurter, J., concurring), to decide how “to

provide that atmosphere which is most conducive to spec-

ulation, experiment and creation,” id., and to decide how

to provide the “wide exposure to that robust exchange

of ideas which discovers truth ‘out of a multitude of

tongues.” Keyishian, 385 U.S. at 603 (quotation

omitted).

III. FORCING THE UNIVERSITY TO DISTINGUISH

BETWEEN “EDUCATIONAL” ORGANIZATIONS

AND “POLITICAL” OR “IDEOLOGICAL” ORGANI-

ZATIONS RISKS VIOLATING STUDENTS’ FIRST

AMENDMENT RIGHTS

The court below effectively requires universities to dis-

tinguish political from non-political, and ideological from

non-ideological organizations, and then to grant or with-

hold funding based upon these distinctions. Such distinc-

18

tions may be constitutionally workable in the context of

the activities of a union or a state bar, where the govern-

ment has a narrower interest and where that interest does

not include exposure to a diverse marketplace of ideas.

Such distinctions emphatically do not work in the con-

text of a university, however, where the government has

a broad interest, and where that interest includes exposure

to various political and ideological perspectives. Further,

in the context of university campus activities, such distinc-

tions not only fail to work, but they actually create signifi-

cant constitutional mischief.

Consider a student debate club that sponsors a public

forum on presidential impeachment; or a student economic

society that hosts a series of speakers on tax reform; or

a student group that distributes leaflets asserting that a

university discriminates because it hires too few minority

professors; or a film society that sponsors a film concern-

ing the events at Tiananmen Square; or an environmental

organization that presents a series of lectures on the im-

pact of logging; or a literary studies club that funds a

panel discussion of alternative theories of literary criticism,

including Marxist, feminist, deconstructionist, and Freu-

dian approaches. At some point it simply becomes im-

possible to separate the ideological and political from

the educational and informative. See Smith, 844 P.2d

at 524-25 (Arabian, J., dissenting).

Furthermore, a university that attempts to make such

distinctions, and then to make funding decisions based

upon them, may run afoul of First Amendment prohibi-

tions against content- and viewpoint-based discrimination.

In other words, forcing universities to draw these lines

does not avoid constitutional difficulties; it compounds

them. The University of Wisconsin uses the mandatory

activity fee to create a public forum that distributes fees

on a content-neutral basis. (Pet. App. 106a, 412.) By

19

supporting groups without regard to the content or view-

point of their speech, the forum detaches funding deci-

sions from endorsement or condemnation of the political

or ideological positions of the different organizations. In

contrast, the holding of the Southworth I court, which

would require the University to refuse funding for groups

that are too ideological or political, violates the rule

against content and viewpoint discrimination in a public

forum.

Viewpoint discrimination is obvious when a university

treats organizations differently because of their specific

orientation or message, for example by electing to fund

the Young Republicans but not the Young Democrats.

But constitutional problems also may arise when a uni-

versity treats organizations differently because they ap-

proach issues from a political viewpoint. For example,

in Lamb’s Chapel v. Center Moriches Union Free School

District, 508 U.S. 384 (1993), this Court holds that it

“discriminates on the basis of viewpoint to permit school

property to be used for the presentation of all views about

family issues and child-rearing except for those dealing

with the subject from a religious standpoint.” Jd. at 384-

85. A speaker may not be denied access to a forum “to

suppress the point of view he espouses on an otherwise

includible subject.” Jd. at 385; see also Rosenberger,

515 US. at 893-94.

Just as a university cannot provide less favorable treat-

ment to organizations that have a “religious” viewpoint,

sO a university cannot provide less favorable treatment to

organizations that have a “political” viewpoint. For ex-

ample, if two groups that address women’s issues exist,

a campus Women’s Studies Club that discusses but does

not advocate political positions, and a campus National

Organization for Women (“N.O.W.”) that takes positions

20

on public policy, funding the former but not the latter

may impermissibly discriminate against N.O.W. on the

basis of its political viewpoint.

Faced with a project that calls upon them to do the

impossible, with the knowledge that in the effort they

might also do the unconstitutional, many universities will

respond by funding no student organizations at all or

only those that seem to pose no risk whatsoever.’ As the

dissenting judges in Southworth II cautioned, such a re-

quirement may “spell the end, as a practical matter, to

the long tradition of student-managed activities on these

campuses.” 157 F.3d at 1127 (Wood, J., dissenting).

As funding fails, and as organizations disband, some

voices—including, in all likelihood, the most provocative

and stimulating, if also the least popular voices—will no_

longer be heard at our universities. The marketplace of

ideas on our campuses will suffer immeasurably.

8 An “opt-out/refund” procedure might address certain constitu-

tional concerns, see O’Neil, supra, at 575, 578, and use of such a

procedure certainly should not be foreclosed by this Court. For

the reasons set forth in this brief, however, such a procedure

should not be required to save the constitutionality of mandatory

fees.

21

CONCLUSION

For all of the above reasons, amici respectfully urge

that this Court reverse the decision of the Seventh Circuit.

Respectfully submitted,

Of Counsel: STEPHEN S. DUNHAM *

SHELDON E. STEINBACH RENATA K. BAUMAN

AMERICAN COUNCIL ON MORRISON & FOERSTER LLP

One Dupont Circle Denver, Colorado 80202

Washington, D.C. 20086 (303) 592-1500

(202) 939-9355 LEONARD M. NIEHOFF

BUTZEL LONG, P.C.

Suite 300

850 South Main Street

Ann Arbor, MI 48104-2131

(734) 995-3110

* Counsel of Record Counsel for Amici Curiae