So why do we have to pay for free speech?

"So why do we have to pay for free speech?" Continued...

Issue: "School-to-Work debate," Sept. 5, 1998

"This case lies at the intersection of the principle of government neutrality and the prohibition on state funding of religious activities," Sandra Day O'Connor wrote in a concurring opinion. She went on to send a signal in her conclusion: "Although the question is not presented here, I note the possibility that the student fee is susceptible to a Free Speech Clause challenge by an objecting student that she should not be compelled to pay for speech with which she disagrees."

The Wisconsin case became that challenge, Mr. Lorence said.

A similar case has made its way through state courts in California. At issue in Smith vs. Regents of the University of California, a 1993 case, was a mandatory student fee at Berkeley that subsidized on-campus clubs. The state supreme court ruled that the university cannot fund any club with political or ideological causes, unless a "remedy"-a refund mechanism-is in place. The decision also prohibits use of the mandatory fees to subsidize lobbying efforts.

According to UC lawyer Gary Morrison, the ruling requires the university to weigh the educational values of a particular expenditure against the political, religious, or ideological purposes of the activity. If these latter purposes dominate, he said, they would not be considered germane to the educational mission, and they could not be funded. (The decision in Rosenberger cast a cloud over this part of Smith, and UC officials have revised their guidelines for funding.)

The decision to refund a pro rata amount of the mandatory fees is left up to each campus and is decided on an individual-case basis. But Mr. Morrison cautioned those seeking refunds not to expect a windfall. If a student at UC-Davis were to object to a group that received $200, he said, "I would take $200 and divide it by the number of students here, and I'd say, 'You'll need 17 people to come get a penny.'"

In its Wisconsin decision, though, the 7th Circuit ruled out a rebate after the fact; there must be an up-front opportunity to opt out of funding objectionable speech and activities.

Mr. Southworth, now 26 and a legal aide to a Wisconsin legislator, says he hopes the administrative hassles universities face in trying to devise a way for students to opt out will force the tax-supported schools to "get out of the business of organizational welfare." They "are subsidizing speech on campus that doesn't need it," he told WORLD. "The result is not only my having to pay for it, but also being compelled to compromise my religious and other beliefs."

Only one of the original five plaintiffs is still in school. Mr. Southworth said other students at Wisconsin would join the case as it is appealed upward. As for legal costs, because the university lost, it must reimburse the plaintiffs upwards of $70,000. If the school takes its appeal to the Supreme Court and loses there, the reimbursement will grow to several hundred thousand dollars. In Rosenberger, which involved a flap over a withheld subsidy of $5,662, the University of Virginia ended up having to pay the plaintiff's $309,516 court costs in addition to its own.

Edward E. Plowman
Edward E. Plowman


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