Author: ADF Litigation Staff Counsel David J. Hacker
Casey Mattox's excellent series on Widmar v. Vincent (stay tuned, there's more to come) inspired me to write my own mini-series on student activity fees, a topic that will consume student groups from coast to coast this summer as they prepare for the fall semester. I will examine the constitutional principles that guide these systems, objections to paying the fees, and methods for allocating fees that violate the First Amendment. My hope is that student groups who are entering or will enter the fee allocation season this fall will be better equipped to ensure they have equal access to student fees. Today, we start with an overview of the constitutional principles.
Most universities charge students a student activity fee. Typically, the fee pays for non-instructional student services (e.g., student union facilities, recreational sports, bus services, etc.). But a portion of the fee often funds student organization activities as well. At most universities, these fees are mandatory, though at least one exception exists. A student committee or student-administrator hybrid committee usually distributes the fees. In so doing, the committee must follow a few clearly established constitutional standards: the committee cannot distribute the fees based on viewpoint and must use objective, specific criteria when deciding whether a student group is eligible for funding and how much each group receives.
These standards arose out of a series of Supreme Court cases. Fifteen years ago, in Rosenberger v. Rector and Visitors of the University of Virginia, the Supreme Court held that when a public university creates a mandatory student activity fee and then allocates the fees to student organizations for their activities, it creates a public forum for students. In such a forum, the university must distribute the fees without regard to viewpoint. In Rosenberger, the university provided student fee funding to student organizations, but prohibited student groups from receiving student activity fees for religious activities. Based on the viewpoint neutrality principle, the Supreme Court ruled that ban on religious activities constituted viewpoint discrimination and was unconstitutional.
While Rosenberger was a victory for equal access to student fees, not all students wanted to participate in the student fee system. Here is why: Student A is a deeply committed Christian and believes that life begins at conception. She attends Public University and must pay a student fee of $200 per semester. She determines that her university's student fee committee allocates a portion of student fees to student organizations, and "Students for Choice" is one of those groups. Student A does not want her money funding abortion advocacy. She objects and refuses to pay the student fee. Some universities will allow Student A to opt-out of paying student fees. But Student A's university will not. Must she pay the fee? Yes.
A few years after Rosenberger, students at the University of Wisconsin challenged the ability of their university to mandate that they pay a student activity fee in the first place. The students filed suit (represented by ADF's Jordan Lorence) and claimed that the university violated their right to free speech by compelling them to pay student fees that were allocated to student organizations that advocated messages they disagreed with. In a landmark decision, Board of Regents of the University of Wisconsin System v. Southworth, the Supreme Court held that the mandatory student fee did not violate the First Amendment rights of the objecting students because the university allocated the fee on a viewpoint neutral basis. What does this mean for Student A? While she cannot refuse to pay the fee that funds, in part, "Students for Choice," she can start Students for Life and request funding from the same pot of money to counter the abortion advocacy. Thus, while students may not want to pay the fee in the first place, they may access it to support their student group's expression. And, if Student A's school does not give funds to both Students for Choice and Students for Life, it violates viewpoint neutrality and the fee cannot be mandatory. If it is mandatory, the university has violated the constitution.
Does your public university prohibit student groups from receiving funding for "religious activities," "proselytizing," or other religious expression? If so, it is violating viewpoint neutrality and you can do something about it.
Next post: Allocating fees based on clear standards.
This post originally appeared here.