# Amicus Curiae Brief — Board of Regents of Univ. of Wis. System v. Southworth > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0261%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2000 - **Citation:** 529 U.S. 217 ## Text 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 Washington, D.C. 20086 (303) 592-1500 (202) 939-9355 LEONARD M. NIEHOFF BUTZEL LONG, P.C. Suite 300 350 South Main Street Ann Arbor, MI 48104-2181 (784) 995-3110 * Counsel of Record Counsel for Amici Curiae WiLson - Eras Printine Co.. Inc. - 769-0096 - WASHINGTON, D.C. 20001 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0261%3A12. Public record. Not legal advice.