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

IN THE

Supreme Court of the United States

THE BOARD OF REGENTS OF THE

UNIVERSITY OF WISCONSIN SYSTEM, ef ai.,

Petitioners,

v.

SCOTT HAROLD SOUTHWORTH, ef ai.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF AMICUS CURIAE OF THE

AMERICAN CENTER FOR LAW AND JUSTICE

SUPPORTING RESPONDENTS

JAY ALAN SEKULOW

Counsel of Record

MARK NATHAN TROOBNICK

JAMES MATTHEW HENDERSON, SR.

THE AMERICAN CENTER FOR LAW

AND JUSTICE

1000 Thomas Jefferson Street, NW

Washington, DC 20007

(202) 337-2273

Attorneys for Amicus Curiae

es

~

\

TABLE OF CONTENTS

Aas GP MAPUUPENUED cc eeessanéesens ii

URREEIES CU GUE cc thn vewuenesntess 1

SUMMARY OF ARGUMENT ............... 2

FS ee eee er rer 3

I. USE OF STUDENT FEES FOR IDEOLOGICAL

PURPOSES IS A RELATIVELY RECENT

PEED. 5.0 Gu% 06-4 see ees 3

II. | REGARDLESS OF THE FACT THAT

IDEOLOGICAL USE OF STUDENT FEES IS A

RECENT PHENOMENON, COMPELLED

IDEOLOGICAL ASSOCIATION IS

UNCONSTITUTIONAL .............. 8

CURRENTS cbc vceveseauseunsewewan eee 14

i - iii

TABLE OF AUTHORITIES (Table of Authorities continued)

Abood v. Detroit Board of Educ.., Comm. for Public Ed. and Rel. Lib. v. Nyquist,

— & 7, Er 9, 12, 13 SE MEN 4 > odd Oec oce os acs

Arrington v. Taylor, Curran v. Benezet,

380 F.Supp. 1348 (M.D.N.C. 1974) .......... 6 Be eee a Be ee CI og ov ccccccccccces:

Associated Students for the Univ. of California at Riverside Elrod v. Burns,

v. AG of the United States, 368 F Supp. 11 rere Pee ee

ee ete Wipesen cece 7

Frisby v. Shultz,

Bates v. Little Rock, Pe. ods wcodGinewtes oabaes

Ee ech coer ev eeet ones 11

Harper & Row Publishers, Inc. v. Nation Enterprises,

Bazaar v. Fortune, a ee ie Pas

476 F.2d 570 (Sth Cir. 1973) ........---.5-. 6

i Healy v. James,

Board of Airport Commissioners v. Jews for Jesus, SED b.wss déec ee cows wees

Te Seca h eee 1 i

: Iowa Hotel Association v. State Board of Regents,

Bond v. Virginia Polytechnic Inst. & State University, 114 N.W.2d 539 (lowa 1962)...............

381 F.Supp. 1023 (1974)... .. 2.6... ee eee 7

Keller v. State Bar of California,

Bray v. Alexandria Women’s Health Clinic, PD eddtwedebcivicvdeb eu sh’

ki be ee bes 1 |

| | ee Lace v. University of Vermont and State Agricultural

City of Chicago v. The University of Chicago, College, 303 A.2d 475 (Vt. 1973)............

Oi OR. 2098 GR. ISG7) 2. ww cc ccc rec ccces 4

) Lamb's Chapel v. Center Moriches Union Free School

Clipson v. State Board of Education, District, 113 S. Ct. 2141 (1993) .............

123 So. 36 16 (Ale. 19GD).. 2 we eect ccees 3

iv

(Table of Authorities continued)

Larson v. Board of Regents of the Univ. of Nebraska,

204 N.W.2d 568 (Neb. 1973). .........-..+.4.. 6

Litchman v. Shannon,

Se | | Barres se 3

Lynch v. Comm’r of Ed.,

56 N.E.2d 896 (Mass. 1944) ............4... 3

Miami Herald Publishing Co. v. Tornillo,

CIE DS. BEG co ccccevcseedtcve vt 9

NAACP v. Alabama,

fh te |, eerie Tie 10

Pacific Gas and Electric v. California Public Utilities

Commission of California, 475 U.S. 1 (1986) ... . 10

President and Fellows of Harvard College v. Attorney

General,117 N.E. 903 (Mass. 1917) ......... 3,5

Rainey v. Malone,

141 S.W.2d 713 (Tex. 1940) ............4.. 3,5

Regents of University System of Georgia v. Page,

18 F.Supp. 62 (N.D. Ga. 1937) ............ 3,4

Schenck v. Pro-Choice Network of Western New York,

— SiR f errr rvri iret 1

v

(Table of Authorities continued)

Shelton v. Tucker,

SPE cca calew wbeWE Ras

Smith v. Regents of the University of California,

844 P.2d 500 (Cal. 1993) ............

Spence v. Utah State Agricultural College,

225 P.2d 18 (Utah 1950) .............

Torasco v. Watkins,

a ee

United States v. Kokinda,

og Re re

Uzzell v. Friday,

401 F.Supp. 775 (M.D.N.C. 1975) ......

Veed v. Schwartzkopf,

353 F.Supp. 149 (D.C. Neb. 1973) ......

West Virginia Bd. of Ed. v. Barnette,

De We POE cece ccccccsas

Westside Community Schools v. Mergens,

SPE ba ck awh 6 eeewewn

Wooley v. Maynard,

i rn . én .h 66 ws cee e os

INTEREST OF AMICUS'

The American Center for Law and Justice ("ACLJ") is

a nonprofit, public interest law firm and educational

organization dedicated to protecting religious liberty,

human life, and the family. ACLJ attorneys have argued or

participated as amicus curiae in this Court. See, e.g.,

Schenck v. Pro-Choice Network of Western New York, 519

U.S. 357 (1997); Lamb’s Chapel v. Center Moriches Union

Free School District, 113 S. Ct. 2141 (1993); Bray v.

Alexandria Women’s Health Clinic, 113 S. Ct. 753 (1993);

United States v. Kokinda, 497 U.S. 720 (1990); Westside

Community Schools v. Mergens, 496 U.S. 226 (1990);

Frisby v. Shultz, 487 U.S. 474 (1988); Board of Airport

Commissioners v. Jews for Jesus, 482 U.S. 569 (1987).

The ACLJ, because of its commitment to defending

religious liberty and free speech, opposes the government

compelling individuals to support political ideology which

is religiously and philosophically abhorrent to them. The

ACLJ is generally not in favor of state universities

compelling students to contribute to groups with which they

are ideologically opposed. Thus, the ACLJ urges this Court

to uphold the decision of the United States Court of

Appeals for the Seventh Circuit below.

Counsel of record for the parties in this case have consented

to the filing of this brief. Letters of consent have been filed with the Clerk

of Court pursuant to Rule 37. Pursuant to Rule 37.6, amicus ACLJ

discloses that no counsel for any party in this case authored in whole or in

part this brief and that no mandatory contribution to the preparation of this

brief was received from any person or entity other than amicus curiae.

dn

SUMMARY OF ARGUMENT

Petitioner Board of Regents University of Wisconsin

System and supporting amicus argue that this case presents

issues involving the historical right of universities to

academic freedom, however, that is inaccurate on two

levels.

First, as a purely historical matter, American

universities started using student fees for ideological

purposes only fairly recently. Accordingly, if "a page of

history is worth a volume of logic,"* then the history of this

country reflects that this practice is not necessary for

academic freedom at public institutions of learning.

Second, compelling someone to disseminate beliefs

which are contrary to his own, is a fundamental violation

of virtually every right in the First Amendment to the U.S.

Constitution. Thus, while it is discriminatory to limit access

to student funds because of a particular viewpoint,

compelling association with an ideology is equally

unconstitutional.

2 Comm. for Public Ed. and Rel. Lib. v. Nyquist, 413

U.S. 756, 777 n.33 (1973).

.%

ARGUMENT

I. USE OF STUDENT FEES FOR IDEOLOGICAL

PURPOSES IS A RELATIVELY RECENT

PHENOMENON

Many groups argue to tus Court that unless students

are compelled to support causes and groups which are

ideologically abhorrent to them, a historically permitted use

of student fees will come to an abrupt end. That is an

historically inaccurace depiction.

Historically, student fees were not used to support

educational activities and capital improvements. C7.

Litchman v. Shannon, 155 P. 783 (Wash. 1916) (student

fees used for construction of two buildings); Lynch v.

Comm'r of Ed. , 56 N.E.2d 896 (Mass. 1944) (student fees

used for books and school supplies); Regents of University

System of Georgia v. Page, 18 F.Supp. 62 (N.D. Ga.

1937) (students fees used for athletic programs); President

and Fellows of Harvard College v. Attorney General, 117

N.E. 903 (Mass. 1917) (student fees used for applied

sciences); Rainey v. Malone, 141 S.W.2d 713 (Tex. 1940)

(student fees used for student union facility); Clipson v.

State Board of Education, 123 So. 2d 16 (Ala. 1960)

(student fees used for construction of physical education

building); Jowa Hotel Association v. State Board of

Regents, 114 N.W.2d 539 (lowa 1962) (student fees used

for construction and rerovation of buildings); Spence v.

Utah State Agricultural College, 225 P.2d 18 (Utah 1950)

(student fees used to pay principal and interest of

construction bonds).

In an early Illinois case, it was necessary to determine

whether the construction and maintenance of dormitories,

dining facilities, and a student club house were for the

"immediate conduct of the educational purposes of the

institution,” or rather for the purpose of producing revenue.

City of Chicago v. The University of Chicago, 81 N.E.

1138, 1139 (Ill. 1907). While students contributed

specifically to the maintenance of each of these facilities

through rent, meal fees and membership dues, each facility

was also supported generally by revenue from general

student fees. Examining the historical background of

American higher education, the court found dormitories

and dining halls to have been an essential part of American

universities since the American colonies began founding

universities in the seventeenth century. The court similarly

found the clubhouse, used for recreation and social

purposes as well as various student meetings, much like

today’s student unions, to be maintained for the immediate

conduct of the educational purposes of the institution. In

discussing the application of student fees for the support of

these facilities, the court declined to distinguish between a

general student fee and one "apportioned as to sources of

expense, as tuition, room rent, lecture fee, dining halls,

etc." Jd. at 1139-1140 (internal citations omitted).

In addition to the general university purposes discussed

above, student fees during this time period were also used

for the creation and maintenance of a student athletic

association, specific scientific research projects, and the

establishment of a campus student union. See Regents of

University System of Georgia v. Page, 18 F.Supp. 62

(N.D. Ga., 1937) (a student fee imposed on all students

was used to support the University of Georgia Athletic

-4-

Association and the Georgia Tech Athletic Association);

President and Fellows of Harvard College v. Attorney

General, 117 N.E. 903 (Mass. 1917) (student fees assessed

in conjunction with specific courses were to be used in

education generally and also for specific research in the

Applied Sciences); Rainey v. Malone, 141 S.W.2d 713

(Tex. App. 1940) (student fee used to establish student

union). In Rainey the court specifically addressed the issue

of whether the legislature could legitimately authorize

collection of the "Student Union Fee," as being

“appropriately within the functions of a present day

university."/d. at 717 The Court found the Student Union

to satisfy the functions of the university, providing

“facilities for the conduct of various extra-curricular

activities of social, recreational and educational natures; all

of which are conducted or supervised under the direction of

the Board of Regents in accordance with the above

Subsection 19," which provides that the Board of Regents

shall review annually all activities conducted and

expenditures made during the previous year before

approving the budget for the following year.

Thus, contrary to the assertions of some, use of student

fees to support ideological causes and groups is of fairly

recent vintage. In fact, some universities are prohibited

from using student fees for political purposes. See, e.g.,

Smith v. Regents of the University of California, 844 P.2d

500, 515 n. 11 (Cal. 1993) ("Positions on issues taken by

student governments shall not be represented as or deemed

to be official positions of the University. Compulsory

student fees shall not be expended in support of such

positions except for University-related purposes").

A dramatic increase in student fee iitigation arising in

the 1970's shows the new and controversial uses of student

fee money. In that decade alone, sixty state and federal

cases containing a discussion of student fees were decided.

The subject matter of this new litigation marked a

significant departure from the early student fee cases. Nu

longer were the challenges focused upon statutory authority

to assess student fees, but rather the focus had shifted to the

new purposes for which the fees were being expended. In

each case, challenged expenditures fell within one of four

categories.

Many of these student fee cases involved the

expenditure of student fees for support of a campus

newspaper advocating views offensive to some students, or

containing explicit material offensive to students. See, e.g.,

Arrington v. Taylor, 380 F.Supp. 1348 (M.D.N.C. 1974),

aff'd by the Fourth Circuit in an unpublished decision on

August 4, 1975 (1975 U.S. App. LEXIS 13313); Larson v.

Board of Regents of the Univ. of Nebraska, 204 N.W.2d

568 (Neb. 1973); Bazaar v. Fortune, 476 F.2d 570 (Sth

Cir. 1973).

Revisiting the issue first raised in 1969 by Brooks v.

Auburn University, other cases involved a challenge to

student fees being expended to fund controversial speakers

in university guest lecturer programs. See, e.g., Veed v.

Schwartzkopf, 353 F.Supp. 149 (D.C. Neb. 1973) (also

challenging use of fees for student newspaper and student

association); Lace v. University of Vermont and State

Agricultural College, 303 A.2d 475 (Vt. 1973).

The third issue around which much controversy

centered was the use of student fees for the funding of

-6-

ee

contraceptive devices and drugs on campus. See, e.g.,

Bond v. Virginia Polytechnic Inst. & State University, 381

F.Supp. 1023 (1974); Associated Students for the Univ. of

California at Riverside v. AG of the United States, 368

F.Supp. 11 (N.D. Ca. 1973). Although the case did not

directly involve the payment of student fees to a student

organization, this Court discussed the distinction between

providing a forum for student organizations and

affirmatively subsidizing their activities, recognizing that

refusal to subsidize an organization’s speech may

substantially limit its ability to participate in the forum.

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

The remainder of the decade saw the rise of litigation

over the expenditure of student fees for the support of

various groups whose express purpose was ideological and

political advocacy. See, e.g., Curran v. Benezet, 360

N.Y.S. 2d 582 (1974); Uzzell v. Friday, 401 F.Supp. 775

(M.D.N.C. 1975) (payment of student fees in support of

Black Student Movement, a student group whose purpose

was the promotion of separate racial and cultural identity

for black students). ™

Since the 1970s, the controversy surrounding student

fee cases has not diminished, as evidenced by the ever-

increasing amount of litigation. In contrast to the early

cases in which student fees were used to fund building

projects, student unions, and athletic associations, the vast

majority of recent student fee cases have been centered on

the expenditure of the funds for religious, political, or

ideological purposes. While this survey of the history of

student fees in the court system does not provide a

comprehensive study of the history of student fees in

America, it may be relied upon as evidence of the original

Me

purposes for which student fees were collected, and the

present-day trend toward support of political and

ideological advocacy which began during the late 1960s and

extended through the 1970s.

II. REGARDLESS OF THE FACT THAT

IDEOLOGICAL USE OF STUDENT FEES IS A

RECENT PHENOMENON, COMPELLED

IDEOLOGICAL ASSOCIATION IS

UNCONSTITUTIONAL.

The vintage of the compelled associational policies at

issue here are irrelevant for constitutional purposes. This

case turns on the issue of whether the State, under the guise

of compelled student fees, can force someone to help

propagate ideas to which he is diametrically opposed.

Compelling a man to disseminate beliefs contrary to his

own, fundamentally violates of virtually every right in the

First Amendment to the U.S. Constitution.

As this Court said in West Virginia Bd. of Ed. v.

Barnette, 319 U.S. 624, 642 (1943):

But freedom to differ is not limited to things that

do not matter much. That would be a mere shadow

of freedom. The test of its substance is the right to

differ as to things that touch the heart of the

existing order.

If there is any fixed star in our constitutional

constellation, it is that no official, high or petty,

can prescribe what shall be orthodox in politics,

nationalism, religion, or other matters of opinion

or force citizens to confess by word or act their

faith therein.

This standard was reiterated in Wooley v. Maynard, 430

U.S. 705 (1977): "A system which secures the right to

proselytize religious, political, and ideological causes must

~also guarantee the concomitant right to decline to foster

such concepts. The right to speak and the right to refrain

from speaking are complementary components of the

broader concept of individual freedom of mind." 430 U.S.

at 714 (citations and quotation marks omitted). Thus,

compelling someone to adhere to another's moral judgment

on one of the most controversial issues of the day is

unconstitutional.

This Court has repeatedly ruled that the government

may not constitutionally force people to state messages with

which they disagree. Miami Herald Publishing Co. v.

Tornillo, 418 U.S. 241 (1974) (state law requiring

newspapers to print response by political candidates

unconstitutional); Wooley v. Maynard, 430 U.S. 705

(1977) (Jehovah's Witnesses cannot be forced to have state

motto on their auto licenses, when the drivers disagree with

the state motto); Abood v. Detroit Board of Educ., 431

U.S. 209 (1974) (teacher in agency shop cannot by

compelled to contribute to union activities that disseminate

points of view the teacher finds offensive); West Virginia

State Board of Education v. Barnette, 319 U.S. 624 (1943)

(Jehovah's Witnesses cannot be punished for refusing to say

the Pledge of Allegiance in public school); Keller v. State

Bar of California, 496 U.S. 1 (1990) (member of a

mandatory state bar cannot be compelled to pay for bar

association advocacy with which the individual member

disagrees).

In Harper & Row Publishers, Inc. v. Nation

Enterprises, 471 U.S. 524 (1985), this Court enunciated

-9.

the simple principle that coerced adherence to ideology is

unconstitutional: "The essential thrust of the First

Amendment is to prohibit improper restraints on the

voluntary public expression of ideas. . . . There is

necessarily . . . a concomitant freedom not to speak

publicly, one which serves the same ultimate end as

freedom of speech in its affirmative aspects." 471 U.S. at

559.

Arguments are raised in this case that the university

acting as a neutral conduit for student fees distribution

diffuses arguments about compelled association. This Court

in Pacific Gas and Electric v. California Public Utilities

Commission of California, 475 U.S. 1 (1986), however,

said that the relevant question was not how the compelled

association occurred, but whether it had occurred: :

The constitutional difficulty with the right-of-reply

statute [in Tornillo] was that it required the

newspaper to disseminate a message with which

the newspaper disagreed. The difficulty did not

depend on whether the particular paper on which

the replies were printed belonged to the newspaper

or to the candidate.

475 U.S. at 18. Therefore, the fact that the University of

Wisconsin is willing to dole out student fees to a variety of

groups does not remove the students from the process. It

is still the students who must pay for activities and the

dissemination of messages with which they do not agree.

In NAACP v. Alabama, 357 U.S. 449 (1958), this

Court stated that a separate and distinct constitutional right

to freedom of association exists emanating from the First

Amendment to the U.S. Constitution. Likewise, in Shelton

-10-

v. Tucker, 364 U.S. 479 (1960), this Court said that the

right of free association is “closely allied with freedom of

speech and is a right which, like free speech, lays at the

foundation of a free society." Jd. at 486.

This fundamental right is not susceptible to indirect

governmental infringement through a university’s purported

interest in propagating a marketplace of ideas. As this

Court stated in Bates v. Little Rock, 361 U.S. 516 (1959):

[I}t is now beyond dispute that freedom of

association for the purpose of advancing ideas and

airing grievances is protected by the Due Process

Clause of the Fourteenth Amendment from

invasion by the States. Freedoms such as these are

protected not only against heavy handed frontal

attack, but also from being stifled by more subtle

governmental interference.

Id. at 523 (emphasis added).

Freedom of association includes the right not to be

forced either directly or indirectly (as here) by the state to

associate with ideas or beliefs that are contrary to one's

own. Thus, in Wooley v. Maynard, 430 U.S. 705 (1977),

the state could not force an individual to associate himself

with a motto which he opposed by carrying that motto on

his automobile.

In Wooley, a follower of the Jehovah's Witness faith

objected to the New Hampshire State motto, "Live Free or

Die," which was embossed on his license plates in

accordance with state law. Because he found the motto

abhorrent to his religious beliefs, George Maynard

obscured the message on the license plate. Maynard was

Lt.

subsequently prosecuted, fined and given a six month

suspended sentence for purposefully obscuring the state

motto. Wooley, 430 U.S. at 710. This Court upheld

Maynard's challenge to the motto requirement in Wooley,

reaffirming the fundamental constitutional opposition to

governmentally-coerced speech from individuals:

We begin with the proposition that the right of

freedom of thought protected by the First

Amendment against state action includes both the

right to speak freely and the right to refrain from

speaking at all . . . A system which secures the

right to proselytize religious, political and

ideological causes must also guarantee the

concomitant right to decline to foster such

concepts. The right to speak and the right to

refrain from speaking are complementary

components of the broader concept of "individual

freedom of mind."

430 U.S. at 714 (citations omitted). Accordingly, the

freedom to expend money for ideological causes and the

freedom to decline to expend money for other ideological

causes are two sides of the same constitutional coin.

Similarly, in Abood v. Detroit Bd. of Education, 431

U.S. 209 (1977), this Court held that it is unconstitutional

for people to be compelled to contribute union dues

towards political and ideological causes in which they do

not believe. If it is clear that the "government may not

require an individual to relinquish rights guaranteed him by

the First Amendment as a condition of public

employment," Abood, 431 U.S. at 233, it is equally clear

that a student’s associational rights may not be predicated

x, ™

upon relinquishment of those rights. As the Abood court

unambiguously held:

The fact that appellants are compelled to make,

rather than prohibited from making, contributions

for political purposes works no less an

infringement of their constitutional rights. For at

the heart of the First Amendment is the notion that

an individual should be free to believe as he will,

and that in a free society one's beliefs should be

shaped by his mind and his conscience rather than

coerced by the State. And the freedom of belief is

no incidental or secondary aspect of the First

Amendment's protections. . . .

431 U.S. at 234-35 (citations omitted).

These associational principles prohibit a State from

compelling any individual to affirm his belief in God,

Torasco v. Watkins, 367 U.S. 488 (1961), or to associate

with a political party, Elrod v. Burns, 427 U.S. 347, 363-

64 (1976), as a condition for employment. Consequently,

the First Amendment precludes the state from forcing a

student to associate with groups and messages which offend

his religious and moral beliefs.

-13-

CONCLUSION

For the reasons stated above, the judgment below

should be affirmed.

Respectfully submitted,

JAY ALAN SEKULOW

Counsel of Record

MARK NATHAN TROOBNICK

JAMES MATTHEW HENDERSON, SR.

THE AMERICAN CENTER FOR LAW

AND JUSTICE

1000 Thomas Jefferson Street, NW

Washington, DC 20007

(202) 337-2273

Dated: August 11", 1999