(Cite as: 2000 WL 293217 (U.S.Wis.))
BOARD OF REGENTS OF THE
UNIVERSITY OF WISCONSIN SYSTEM, Petitioner,
v.
Scott Harold SOUTHWORTH et
al.
No. 98-1189.
Supreme Court of the United States
Argued Nov. 9, 1999.
Decided March 22, 2000.
Students sued University of
Wisconsin board of regents alleging that mandatory student activity fee
violated their First Amendment rights of free speech, free association, and
free exercise and that the university must grant them the choice not to fund
organizations that engage in political and ideological expression offensive to
their personal beliefs. The United States District Court for the Western
District of Wisconsin declared the fee program invalid and enjoined the
university from using the fees to fund any organization engaging in political
or ideological speech. The United States Court of Appeals for the Seventh
Circuit, 151 F.3d 717, affirmed in part, reversed in part, and vacated in part,
holding that use of portion of fees to fund private organizations that engaged
in political and ideological activities, speech, and advocacy violated free
speech rights of objecting students, but that the injunctive relief ordered by
district court was overbroad. On certiorari, the Supreme Court, Justice
Kennedy, held that: (1) the First Amendment permits a public university to
charge its students an activity fee used to fund a program to facilitate
extracurricular student speech, provided allocation of funding support is
viewpoint neutral; (2) the viewpoint neutrality requirement of the University
of Wisconsin fee program was in general sufficient to protect the rights of the
objecting students, but the student referendum aspect of the program appeared
to be inconsistent with the viewpoint neutrality requirement, and a remand was
required; (3) an optional or refund system is not a constitutional requirement;
and (4) there is no distinction between campus activities and the off-campus
expressive activities of funded organizations.
Reversed and remanded.
Justice Souter, with whom
Justice Stevens and Justice Breyer joined, filed an opinion concurring in the
judgment.
U.S.Wis.,2000.
See publication Words and Phrases for other judicial constructions
and definitions.
public forum
Syllabus [FN*]
FN* The syllabus constitutes no part of the opinion of the Court
but has been prepared by the Reporter of Decisions for the convenience of the
reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321,
337, 26 S.Ct. 282, 50 L.Ed. 499.
*1 Petitioner, Board of
Regents of the University of Wisconsin System
(hereinafter University), requires students at the University's Madison
campus to pay a segregated activity fee. The fee supports various campus
services and extracurricular student activities. In the University's view, such
fees enhance students' educational experience by promoting extracurricular
activities, stimulating advocacy and debate on diverse points of view, enabling
participation in campus administrative activity, and providing opportunities to
develop social skills, all consistent with the University's broad educational
mission. Registered student organizations (RSO's) engaging in a number of
diverse expressive activities are eligible to receive a portion of the fees,
which are administered by the student government subject to the University's
approval. The parties have stipulated that the process for reviewing and
approving RSO applications for funding is administered in a viewpoint-neutral
fashion. RSO's may also obtain funding through a student referendum.
Respondents, present and former Madison campus students, filed suit against the
University, alleging, inter alia, that the fee violates their First Amendment
rights, and that the University must grant them the choice not to fund RSO's
that engage in political and ideological expression offensive to their personal
beliefs. In granting respondents summary judgment, the Federal District Court
declared the fee program invalid under Abood v. Detroit Bd. of Ed., 431 U.S.
209, 97 S.Ct. 1782, 52 L.Ed.2d 261, and Keller v. State Bar of Cal., 496 U.S.
1, 110 S.Ct. 2228, 110 L.Ed.2d 1, and enjoined the University from using the
fees to fund any RSO engaging in political or ideological speech. Agreeing with
the District Court that this Court's compelled speech precedents control, the Seventh
Circuit concluded that the program was not germane to the University's mission,
did not further a vital University policy, and imposed too great a burden on
respondents' free speech rights. It added that protecting those rights was of
heightened concern following Rosenberger v. Rector and Visitors of Univ. of
Va., 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700, because if the University
could not discriminate in distributing the funds, students could not be
compelled to fund organizations engaging in political and ideological speech.
It extended the District Court's order and enjoined the University from
requiring students to pay that portion of the fee used to fund RSO's engaged in
political or ideological expression.
Held:
1. The First Amendment permits
a public university to charge its students an activity fee used to fund a
program to facilitate extracurricular student speech, provided that the program
is viewpoint neutral. The University exacts the fee at issue for the sole
purpose of facilitating the free and open exchange of ideas by, and among, its
students. Objecting students, however, may insist upon certain safeguards with
respect to the expressive activities they are required to support. The Court's
public forum cases are instructive here by close analogy. Because the
complaining students must pay fees to subsidize speech they find objectionable,
even offensive, the rights acknowledged in Abood and Keller are implicated. In
those cases, this Court held that a required service fee paid by nonunion
employees to a union, Abood, supra, at 213, 97 S.Ct. 1782, and fees paid by
lawyers who were required to join a state bar association, Keller, supra, at 13-14,
110 S.Ct. 2228, could be used to fund speech germane to those organizations'
purposes but not to fund the organizations' own political expression. While
these precedents identify the protesting students' interests, their germane
speech standard is unworkable in the context of student speech at a university
and gives insufficient protection both to the objecting students and to the
University program itself. Even in the union context, this Court has
encountered difficulties in deciding what is germane and what is not. The
standard becomes all the more unmanageable in the public university setting,
particularly where, as here, the State undertakes to stimulate the whole
universe of speech and ideas. To insist upon asking what speech is germane
would be contrary to the very goal the University seeks to pursue. The vast
extent of permitted expression also underscores the high potential for
intrusion on the objecting students' First Amendment rights, for it is all but
inevitable that the fees will subsidize speech that some students find
objectionable or offensive. A university is free to protect those rights by
allowing an optional or refund system, but such a system is not a
constitutional requirement. If a university determines that its mission is well
served if students have the means to engage in dynamic discussion on a broad
range of issues, it may impose a mandatory fee to sustain such dialogue. It
must provide some protection to its students' First Amendment interests,
however. The proper measure, and the principal standard of protection for
objecting students, is the requirement of viewpoint neutrality in the
allocation of funding support. This obligation was given substance in
Rosenberger v. Rector and Visitors of Univ. of Va., supra, which concerned a
student's right to use an extracurricular speech program already in place. The
instant case considers the antecedent question whether a public university may
require students to pay a fee which creates the mechanism for the
extracurricular speech in the first instance. The University may sustain the
extracurricular dimensions of its programs by using mandatory student fees with
viewpoint neutrality as the operational principle. There is symmetry then in
the holding here and in Rosenberger. Pp. ---- - ----, 9-14.
2. Because the parties
have stipulated that the University's program respects the principle of
viewpoint neutrality, the program in its basic structure must be found
consistent with the First Amendment. This decision makes no distinction between
campus and off-campus activities; and it ought not be taken to imply that when
the University, its agents, employees, or faculty speak, they are subject to
the First Amendment analysis which controls in this case. Pp. ---- - ----, 15-16.
*2 3. While not well
developed on the present record, the referendum aspect of the University's program
appears to permit RSO funding or defunding by majority vote of the student
body. To the extent the referendum substitutes majority determinations for
viewpoint neutrality it would undermine the constitutional protection the
program requires. Pp. ---- - ----, 16-17.
151 F.3d 717, reversed and
remanded.
KENNEDY, J., delivered the
opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, SCALIA, THOMAS,
and GINSBURG, JJ., joined. SOUTER, J., filed an opinion concurring in the
judgment, in which STEVENS and BREYER, JJ., joined.
Susan K. Ullman, Madison,
WI, for petitioners.
Jordan W. Lorence,
Fairfax, VA, for respondents.
Justice KENNEDY delivered
the opinion of the Court.
For the second time in
recent years we consider constitutional questions arising from a program
designed to facilitate extracurricular student speech at a public university.
Respondents are a group of students at the University of Wisconsin. They
brought a First Amendment challenge to a mandatory student activity fee imposed
by petitioner Board of Regents of the University of Wisconsin and used in part
by the University to support student organizations engaging in political or
ideological speech. Respondents object to the speech and expression of some of
the student organizations. Relying upon our precedents which protect members of
unions and bar associations from being required to pay fees used for speech the
members find objectionable, both the District Court and the Court of Appeals
invalidated the University's student fee program. The University contends that
its mandatory student activity fee and the speech which it supports are
appropriate to further its educational mission.
[1] We reverse. The First
Amendment permits a public university to charge its students an activity fee
used to fund a program to facilitate extracurricular student speech if the
program is viewpoint neutral. We do not sustain, however, the student
referendum mechanism of the University's program, which appears to permit the
exaction of fees in violation of the viewpoint neutrality principle. As to that
aspect of the program, we remand for further proceedings.
I
The University of
Wisconsin is a public corporation of the State of Wisconsin. See Wis. Stat. §
36.07(1) (1993-1994). State law defines the University's mission in broad
terms: "to develop human resources, to discover and disseminate knowledge,
to extend knowledge and its application beyond the boundaries of its campuses
and to serve and stimulate society by developing in students heightened
intellectual, cultural and humane sensitivities ... and a sense of
purpose." § 36.01(2). Some 30,000 undergraduate students and 10,000
graduate and professional students attend the University's Madison campus,
ranking it among the Nation's largest institutions of higher learning. Students
come to the renowned University from all 50 States and from 72 foreign
countries. Last year marked its 150th anniversary; and to celebrate its
distinguished history, the University sponsored a series of research initiatives,
campus forums and workshops, historical exhibits, and public lectures, all
reaffirming its commitment to explore the universe of knowledge and ideas.
The responsibility for
governing the University of Wisconsin System is vested by law with the board of
regents. § 36.09(1). The same law empowers the students to share in aspects of
the University's governance. One of those functions is to administer the
student activities fee program. By statute the "[s]tudents in consultation
with the chancellor and subject to the final confirmation of the board [of
regents] shall have the responsibility for the disposition of those student
fees which constitute substantial support for campus student activities."
§ 36.09(5). The students do so, in large measure, through their student
government, called the Associated Students of Madison (ASM), and various ASM
subcommittees. The program the University maintains to support the
extracurricular activities undertaken by many of its student organizations is
the subject of the present controversy.
*3 It seems that since its
founding the University has required full-time students enrolled at its Madison
campus to pay a nonrefundable activity fee. App. 154. For the 1995-1996
academic year, when this suit was commenced, the activity fee amounted to
$331.50 per year. The fee is segregated from the University's tuition charge.
Once collected, the activity fees are deposited by the University into the
accounts of the State of Wisconsin. Id., at 9. The fees are drawn upon by the University
to support various campus services and extracurricular student activities. In
the University's view, the activity fees "enhance the educational
experience" of its students by "promot[ing] extracurricular
activities," "stimulating advocacy and debate on diverse points of
view," enabling "participa[tion] in political activity,"
"promot[ing] student participa[tion] in campus administrative
activity," and providing "opportunities to develop social
skills," all consistent with the University's mission. Id., at 154-155.
The board of regents
classifies the segregated fee into allocable and nonallocable portions. The
nonallocable portion approximates 80% of the total fee and covers expenses such
as student health services, intramural sports, debt service, and the upkeep and
operations of the student union facilities. Id., at 13. Respondents did not
challenge the purposes to which the University commits the nonallocable portion
of the segregated fee. Id., at 37.
The allocable portion of
the fee supports extracurricular endeavors pursued by the University's
registered student organizations or RSO's. To qualify for RSO status students
must organize as a not-for-profit group, limit membership primarily to
students, and agree to undertake activities related to student life on campus.
Id., at 15. During the 1995-1996 school year, 623 groups had RSO status on the
Madison campus. Id., at 255. To name but a few, RSO's included the Future
Financial Gurus of America; the International Socialist Organization; the College
Democrats; the College Republicans; and the American Civil Liberties Union
Campus Chapter. As one would expect, the expressive activities undertaken by
RSO's are diverse in range and content, from displaying posters and circulating
newsletters throughout the campus, to hosting campus debates and guest
speakers, and to what can best be described as political lobbying.
RSO's may obtain a portion
of the allocable fees in one of three ways. Most do so by seeking funding from the
Student Government Activity Fund (SGAF), administered by the ASM. SGAF moneys
may be issued to support an RSO's operations and events, as well as travel
expenses "central to the purpose of the organization." Id., at 18. As
an alternative, an RSO can apply for funding from the General Student Services
Fund (GSSF), administered through the ASM's finance committee. During the 1995-1996
academic year, 15 RSO's received GSSF funding. These RSO's included a campus
tutoring center, the student radio station, a student environmental group, a
gay and bisexual student center, a community legal office, an AIDS support
network, a campus women's center, and the Wisconsin Student Public Interest
Research Group (WISPIRG). Id., at 16- 17. The University acknowledges that, in
addition to providing campus services (e.g., tutoring and counseling), the GSSF-funded
RSO's engage in political and ideological expression. Brief for Petitioner 10.
*4 The GSSF, as well as the
SGAF, consists of moneys originating in the allocable portion of the mandatory
fee. The parties have stipulated that, with respect to SGAF and GSSF funding,
"[t]he process for reviewing and approving allocations for funding is
administered in a viewpoint-neutral fashion," Id., at 14-15, and that the
University does not use the fee program for "advocating a particular point
of view," Id., at 39.
A student referendum
provides a third means for an RSO to obtain funding. Id., at 16. While the record is sparse on this feature of the
University's program, the parties inform us that the student body can vote
either to approve or to disapprove an assessment for a particular RSO. One
referendum resulted in an allocation of $45,000 to WISPIRG during the 1995-1996
academic year. At oral argument, counsel for the University acknowledged that a
referendum could also operate to defund an RSO or to veto a funding decision of
the ASM. In October 1996, for example, the student body voted to terminate
funding to a national student organization to which the University belonged.
Id., at 215. Both parties confirmed at oral argument that their stipulation
regarding the program's viewpoint neutrality does not extend to the referendum
process. Tr. of Oral Arg. 19, 29.
With respect to GSSF and
SGAF funding, the ASM or its finance committee makes initial funding decisions.
App. 14-15. The ASM does so in an open session, and interested students may
attend meetings when RSO funding is discussed. Id., at 14. It also appears that
the ASM must approve the results of a student referendum. Approval appears pro
forma, however, as counsel for the University advised us that the student
government "voluntarily views th[e] referendum as binding." Tr. of
Oral Arg. 15. Once the ASM approves an RSO's funding application, it forwards
its decision to the chancellor and to the board of regents for their review and
approval. App. 18, 19. Approximately 30% of the University's RSO's received
funding during the 1995-1996 academic year.
RSO's, as a general rule,
do not receive lump-sum cash distributions. Rather, RSO's obtain funding
support on a reimbursement basis by submitting receipts or invoices to the
University. Guidelines identify expenses appropriate for reimbursement.
Permitted expenditures include, in the main, costs for printing, postage, office
supplies, and use of University facilities and equipment. Materials printed
with student fees must contain a disclaimer that the views expressed are not
those of the ASM. The University also reimburses RSO's for fees arising from
membership in "other related and non-profit organizations." Id., at
251.
*5 The University's policy
establishes purposes for which fees may not be expended. RSO's may not receive
reimbursement for "[g]ifts, donations, and contributions," the costs
of legal services, or for "[a]ctivities which are politically partisan or
religious in nature." Id., at 251-252. (The policy does not give examples
of the prohibited expenditures.) A separate policy statement on GSSF funding
states that an RSO can receive funding if it "does not have a primarily
political orientation (i.e. is not a registered political group)." Id., at
238. The same policy adds that an RSO "shall not use [student fees] for
any lobbying purposes." Ibid. At one point in their brief respondents
suggest that the prohibition against expenditures for "politically
partisan" purposes renders the program not viewpoint neutral. Brief for
Respondents 31. In view of the fact that both parties entered a stipulation to
the contrary at the outset of this litigation, which was again reiterated
during oral argument in this Court, we do not consider respondents' challenge
to this aspect of the University's program.
The University's Student
Organization Handbook has guidelines for regulating the conduct and activities
of RSO's. In addition to obligating RSO's to adhere to the fee program's rules
and regulations, the guidelines establish procedures authorizing any student to
complain to the University that an RSO is in noncompliance. An extensive
investigative process is in place to evaluate and remedy violations. The
University's policy includes a range of sanctions for noncompliance, including
probation, suspension, or termination of RSO status.
One RSO that appears to
operate in a manner distinct from others is WISPIRG. For reasons not clear from
the record, WISPIRG receives lump-sum cash distributions from the University.
University counsel informed us that this distribution reduced the GSSF portion
of the fee pool. Tr. of Oral Arg. 15. The full extent of the uses to which
WISPIRG puts its funds is unclear. We do know, however, that WISPIRG sponsored
on-campus events regarding homelessness and environmental and consumer
protection issues. App. 348. It coordinated community food drives and
educational programs and spent a portion of its activity fees for the lobbying
efforts of its parent organization and for student internships aimed at
influencing legislation. Id., at 344, 347.
In March 1996,
respondents, each of whom attended or still attend the University's Madison
campus, filed suit in the United States District Court for the Western District
of Wisconsin against members of the board of regents. Respondents alleged,
inter alia, that imposition of the segregated fee violated their rights of free
speech, free association, and free exercise under the First Amendment. They
contended the University must grant them the choice not to fund those RSO's
that engage in political and ideological expression offensive to their personal
beliefs. Respondents requested both injunctive and declaratory relief. On cross-motions
for summary judgment, the District Court ruled in their favor, declaring the
University's segregated fee program invalid under Abood v. Detroit Bd. of Ed.,
431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), and Keller v. State Bar of
Cal., 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990). The District Court
decided the fee program compelled students "to support political and
ideological activity with which they disagree" in violation of
respondents' First Amendment rights to freedom of speech and association. App.
to Pet for Cert. 98a. The court did not reach respondents' free exercise claim.
The District Court's order enjoined the board of regents from using segregated
fees to fund any RSO engaging in political or ideological speech.
*6 The United States Court of
Appeals for the Seventh Circuit affirmed in part, reversed in part, and vacated
in part. Southworth v. Grebe, 151 F.3d 717 (1998). As the District Court had
done, the Court of Appeals found our compelled speech precedents controlling.
After examining the University's fee program under the three-part test outlined
in Lehnert v. Ferris Faculty Assn., 500 U.S. 507, 111 S.Ct. 1950, 114 L.Ed.2d
572 (1991), it concluded that the program was not germane to the University's
mission, did not further a vital policy of the University, and imposed too much
of a burden on respondents' free speech rights. "[L]ike the objecting
union members in Abood," the Court of Appeals reasoned, the students here
have a First Amendment interest in not being compelled to contribute to an
organization whose expressive activities conflict with their own personal
beliefs. 151 F.3d, at 731. It added that protecting the objecting students'
free speech rights was "of heightened concern" following our decision
in Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 115 S.Ct.
2510, 132 L.Ed.2d 700 (1995), because "[i]f the university cannot
discriminate in the disbursement of funds, it is imperative that students not
be compelled to fund organizations which engage in political and ideological
activities--that is the only way to protect the individual's rights." 151
F.3d, at 730, n. 11. The Court of Appeals extended the District Court's order
and enjoined the board of regents from requiring objecting students to pay that
portion of the fee used to fund RSO's engaged in political or ideological
expression. Id., at 735.
Three members of the Court
of Appeals dissented from the denial of the University's motion for rehearing
en banc. In their view, the panel opinion overlooked the "crucial
difference between a requirement to pay money to an organization that
explicitly aims to subsidize one viewpoint to the exclusion of other
viewpoints, as in Abood and Keller, and a requirement to pay a fee to a group
that creates a viewpoint-neutral forum, as is true of the student activity fee
here." Southworth v. Grebe, 157 F.3d 1124, 1129 (C.A.7 1998) (D. Wood, J.,
dissenting).
*7 Other courts addressing
First Amendment challenges to similar student fee programs have reached
conflicting results. Compare Rounds v. Oregon State Bd. of Higher Ed., 166 F.3d
1032, 1038-1040 (C.A.9 1999), Hays County Guardian v. Supple, 969 F.2d 111, 123
(C.A.5 1992), cert. denied, 506 U.S. 1087, 113 S.Ct. 1067, 122 L.Ed.2d 371
(1993), Kania v. Fordham, 702 F.2d 475, 480 (C.A.4 1983), Good v. Associated
Students of Univ. of Wash., 86 Wash.2d 94, 105, 542 P.2d 762, 769 (1975) (en
banc), with Smith v. Regents of Univ. of Cal., 4 Cal.4th 843, 862-863, 16
Cal.Rptr.2d 181, 844 P.2d 500, 513-514 cert. denied, 510 U.S. 863, 114 S.Ct.
181, 126 L.Ed.2d 140 (1993). These conflicts, together with the importance of
the issue presented, led us to grant certiorari. 526 U.S. 1038, 119 S.Ct. 1332,
143 L.Ed.2d 497 (1999). We reverse the judgment of the Court of Appeals.
II
It is inevitable that
government will adopt and pursue programs and policies within its
constitutional powers but which nevertheless are contrary to the profound
beliefs and sincere convictions of some of its citizens. The government, as a
general rule, may support valid programs and policies by taxes or other
exactions binding on protesting parties. Within this broader principle it seems
inevitable that funds raised by the government will be spent for speech and
other expression to advocate and defend its own policies. See, e.g., Rust v.
Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991); Regan v.
Taxation With Representation of Wash., 461 U.S. 540, 548- 549, 103 S.Ct. 1997,
76 L.Ed.2d 129 (1983). The case we decide here, however, does not raise the
issue of the government's right, or, to be more specific, the state-controlled
University's right, to use its own funds to advance a particular message. The
University's whole justification for fostering the challenged expression is that
it springs from the initiative of the students, who alone give it purpose and
content in the course of their extracurricular endeavors.
The University having
disclaimed that the speech is its own, we do not reach the question whether traditional
political controls to ensure responsible government action would be sufficient
to overcome First Amendment objections and to allow the challenged program
under the principle that the government can speak for itself. If the challenged
speech here were financed by tuition dollars and the University and its
officials were responsible for its content, the case might be evaluated on the
premise that the government itself is the speaker. That is not the case before
us.
[2][3] The University of
Wisconsin exacts the fee at issue for the sole purpose of facilitating the free
and open exchange of ideas by, and among, its students. We conclude the
objecting students may insist upon certain safeguards with respect to the
expressive activities which they are required to support. Our public forum
cases are instructive here by close analogy. This is true even though the
student activities fund is not a public forum in the traditional sense of the
term and despite the circumstance that those cases most often involve a demand
for access, not a claim to be exempt from supporting speech. See, e.g., Lamb's
Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 113 S.Ct.
2141, 124 L.Ed.2d 352 (1993); Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269,
70 L.Ed.2d 440 (1981). The standard of viewpoint neutrality found in the public
forum cases provides the standard we find controlling. We decide that the
viewpoint neutrality requirement of the University program is in general
sufficient to protect the rights of the objecting students. The student
referendum aspect of the program for funding speech and expressive activities,
however, appears to be inconsistent with the viewpoint neutrality requirement.
*8 We must begin by
recognizing that the complaining students are being required to pay fees which
are subsidies for speech they find objectionable, even offensive. The Abood and
Keller cases, then, provide the beginning point for our analysis. Abood v.
Detroit Bd. of Ed., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977); Keller
v. State Bar of Cal., 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990). While
those precedents identify the interests of the protesting students, the means
of implementing First Amendment protections adopted in those decisions are
neither applicable nor workable in the context of extracurricular student
speech at a university.
In Abood, some nonunion
public school teachers challenged an agreement requiring them, as a condition
of their employment, to pay a service fee equal in amount to union dues. 431
U.S., at 211-212, 97 S.Ct. 1782. The objecting teachers alleged that the
union's use of their fees to engage in political speech violated their freedom
of association guaranteed by the First and Fourteenth Amendments. Id., at 213,
97 S.Ct. 1782. The Court agreed and held that any objecting teacher could
"prevent the Union's spending a part of their required service fees to
contribute to political candidates and to express political views unrelated to
its duties as exclusive bargaining representative." Id., at 234, 97 S.Ct.
1782. The principles outlined in Abood provided the foundation for our later
decision in Keller. There we held that lawyers admitted to practice in
California could be required to join a state bar association and to fund activities
"germane" to the association's mission of "regulating the legal
profession and improving the quality of legal services." 496 U.S., at 13-14,
110 S.Ct. 2228. The lawyers could not, however, be required to fund the bar
association's own political expression. Id., at 16, 110 S.Ct. 2228.
The proposition that
students who attend the University cannot be required to pay subsidies for the
speech of other students without some First Amendment protection follows from
the Abood and Keller cases. Students enroll in public universities to seek
fulfillment of their personal aspirations and of their own potential. If the
University conditions the opportunity to receive a college education, an
opportunity comparable in importance to joining a labor union or bar association,
on an agreement to support objectionable, extracurricular expression by other
students, the rights acknowledged in Abood and Keller become implicated. It
infringes on the speech and beliefs of the individual to be required, by this
mandatory student activity fee program, to pay subsidies for the objectionable
speech of others without any recognition of the State's corresponding duty to
him or her. Yet recognition must be given as well to the important and
substantial purposes of the University, which seeks to facilitate a wide range
of speech.
*9 In Abood and Keller the
constitutional rule took the form of limiting the required subsidy to speech
germane to the purposes of the union or bar association. The standard of
germane speech as applied to student speech at a university is unworkable,
however, and gives insufficient protection both to the objecting students and
to the University program itself. Even in the context of a labor union, whose
functions are, or so we might have thought, well known and understood by the
law and the courts after a long history of government regulation and judicial
involvement, we have encountered difficulties in deciding what is germane and
what is not. The difficulty manifested itself in our decision in Lehnert v. Ferris
Faculty Assn., 500 U.S. 507, 111 S.Ct. 1950, 114 L.Ed.2d 572 (1991), where
different members of the Court reached varying conclusions regarding what
expressive activity was or was not germane to the mission of the association.
If it is difficult to define germane speech with ease or precision where a
union or bar association is the party, the standard becomes all the more
unmanageable in the public university setting, particularly where the State
undertakes to stimulate the whole universe of speech and ideas.
The speech the University
seeks to encourage in the program before us is distinguished not by discernable
limits but by its vast, unexplored bounds. To insist upon asking what speech is
germane would be contrary to the very goal the University seeks to pursue. It
is not for the Court to say what is or is not germane to the ideas to be
pursued in an institution of higher learning.
[4] Just as the vast
extent of permitted expression makes the test of germane speech inappropriate
for intervention, so too does it underscore the high potential for intrusion on
the First Amendment rights of the objecting students. It is all but inevitable
that the fees will result in subsidies to speech which some students find
objectionable and offensive to their personal beliefs. If the standard of
germane speech is inapplicable, then, it might be argued the remedy is to allow
each student to list those causes which he or she will or will not support. If
a university decided that its students' First Amendment interests were better
protected by some type of optional or refund system it would be free to do so.
We decline to impose a system of that sort as a constitutional requirement,
however. The restriction could be so disruptive and expensive that the program
to support extracurricular speech would be ineffective. The First Amendment
does not require the University to put the program at risk.
The University may
determine that its mission is well served if students have the means to engage
in dynamic discussions of philosophical, religious, scientific, social, and
political subjects in their extracurricular campus life outside the lecture
hall. If the University reaches this conclusion, it is entitled to impose a
mandatory fee to sustain an open dialogue to these ends.
*10 The University must
provide some protection to its students' First Amendment interests, however.
The proper measure, and the principal standard of protection for objecting
students, we conclude, is the requirement of viewpoint neutrality in the allocation
of funding support. Viewpoint neutrality was the obligation to which we gave
substance in Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819,
115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). There the University of Virginia feared
that any association with a student newspaper advancing religious viewpoints
would violate the Establishment Clause. We rejected the argument, holding that
the school's adherence to a rule of viewpoint neutrality in administering its
student fee program would prevent "any mistaken impression that the
student newspapers speak for the University." Id., at 841, 115 S.Ct. 2510.
While Rosenberger was concerned with the rights a student has to use an
extracurricular speech program already in place, today's case considers the
antecedent question, acknowledged but unresolved in Rosenberger: whether a
public university may require its students to pay a fee which creates the
mechanism for the extracurricular speech in the first instance. When a
university requires its students to pay fees to support the extracurricular
speech of other students, all in the interest of open discussion, it may not
prefer some viewpoints to others. There is symmetry then in our holding here
and in Rosenberger: Viewpoint neutrality is the justification for requiring the
student to pay the fee in the first instance and for ensuring the integrity of
the program's operation once the funds have been collected. We conclude that
the University of Wisconsin may sustain the extracurricular dimensions of its programs
by using mandatory student fees with viewpoint neutrality as the operational
principle.
The parties have
stipulated that the program the University has developed to stimulate
extracurricular student expression respects the principle of viewpoint neutrality.
If the stipulation is to continue to control the case, the University's program
in its basic structure must be found consistent with the First Amendment.
[5] We make no distinction
between campus activities and the off-campus expressive activities of
objectionable RSO's. Those activities, respondents tell us, often bear no
relationship to the University's reason for imposing the segregated fee in the
first instance, to foster vibrant campus debate among students. If the
University shares those concerns, it is free to enact viewpoint neutral rules
restricting off-campus travel or other expenditures by RSO's, for it may create
what is tantamount to a limited public forum if the principles of viewpoint
neutrality are respected. Cf. id., at 829-830, 115 S.Ct. 2510. We find no
principled way, however, to impose upon the University, as a constitutional
matter, a requirement to adopt geographic or spatial restrictions as a
condition for RSOs' entitlement to reimbursement. Universities possess
significant interests in encouraging students to take advantage of the social,
civic, cultural, and religious opportunities available in surrounding
communities and throughout the country. Universities, like all of society, are
finding that traditional conceptions of territorial boundaries are difficult to
insist upon in an age marked by revolutionary changes in communications,
information transfer, and the means of discourse. If the rule of viewpoint
neutrality is respected, our holding affords the University latitude to adjust
its extracurricular student speech program to accommodate these advances and
opportunities.
Our decision ought not to
be taken to imply that in other instances the University, its agents or
employees, or--of particular importance--its faculty, are subject to the First
Amendment analysis which controls in this case. Where the University speaks,
either in its own name through its regents or officers, or in myriad other ways
through its diverse faculties, the analysis likely would be altogether different.
See Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991);
Regan v. Taxation With Representation of Wash., 461 U.S. 540, 103 S.Ct. 1997,
76 L.Ed.2d 129 (1983). The Court has not held, or suggested, that when the
government speaks the rules we have discussed come into play.
*11 When the government
speaks, for instance to promote its own policies or to advance a particular
idea, it is, in the end, accountable to the electorate and the political
process for its advocacy. If the citizenry objects, newly elected officials
later could espouse some different or contrary position. In the instant case,
the speech is not that of the University or its agents. It is not, furthermore,
speech by an instructor or a professor in the academic context, where
principles applicable to government speech would have to be considered. Cf.
Rosenberger, supra, at 833, 115 S.Ct. 2510 (discussing the discretion
universities possess in deciding matters relating to their educational
mission).
III
It remains to discuss the
referendum aspect of the University's program. While the record is not well
developed on the point, it appears that by majority vote of the student body a
given RSO may be funded or defunded. It is unclear to us what protection, if
any, there is for viewpoint neutrality in this part of the process. To the
extent the referendum substitutes majority determinations for viewpoint
neutrality it would undermine the constitutional protection the program
requires. The whole theory of viewpoint neutrality is that minority views are
treated with the same respect as are majority views. Access to a public forum,
for instance, does not depend upon majoritarian consent. That principle is
controlling here. A remand is necessary and appropriate to resolve this point;
and the case in all events must be reexamined in light of the principles we
have discussed.
The judgment of the Court
of Appeals is reversed, and the case is remanded for further proceedings
consistent with this opinion. In this Court the parties shall bear their own
costs.
It is so ordered.
Justice SOUTER, with whom
Justice STEVENS and Justice BREYER join, concurring in the judgment.
The majority today
validates the University's student activity fee after recognizing a new category
of First Amendment interests and a new standard of viewpoint neutrality
protection. I agree that the University's scheme is permissible, but do not
believe that the Court should take the occasion to impose a cast-iron viewpoint
neutrality requirement to uphold it. See ante, at ----, 14. Instead, I would
hold that the First Amendment interest claimed by the student respondents
(hereinafter Southworth) here is simply insufficient to merit protection by
anything more than the viewpoint neutrality already accorded by the University,
and I would go no further. [FN1]
FN1. I limit my examination of the case solely to the general
disbursement scheme; I agree with the majority that the referendum issue was
not adequately addressed in the District Court and the Courts of Appeals, see
ante, at ----, 16, and I would say nothing more on that subject.
The parties have
stipulated that the grant scheme is administered on a viewpoint neutral basis,
and like the majority I take the case on that assumption. The question before
us is thus properly cast not as whether viewpoint neutrality is required, but
whether Southworth has a claim to relief from this specific viewpoint neutral
scheme. [FN2] Two sources of law might be considered in answering this
question.
FN2. Under its own reasoning, the majority need not reach the
question whether viewpoint neutrality is required to decide this case. The
University program required viewpoint neutrality, and both parties have
stipulated that the funds are disbursed accordingly. Stipulation 12, App. 14-15.
If viewpoint neutrality is a sufficient condition, the majority could uphold
the scheme here on that limited ground without deciding whether it is a
necessary one.
*12 The first comprises First
Amendment and related cases grouped under the umbrella of academic freedom.
[FN3] Such law might be implicated by the University's proffered rationale,
that the grant scheme funded by the student activity fee is an integral element
in the discharge of its educational mission. App. 253 (excerpt from Dean of
Students Office Student Organization Handbook noting that the activities of
student groups constitute a " 'second curriculum' "); id., at 41, 42-44
(statement of Associate Dean of Students of the UW-Madison noting academic
importance of funding scheme); see also ante, at ---- - ----, 13-14. Our
understanding of academic freedom has included not merely liberty from
restraints on thought, expression, and association in the academy, but also the
idea that universities and schools should have the freedom to make decisions
about how and what to teach. In Regents of Univ. of Mich. v. Ewing, 474 U.S.
214, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985), we recognized these related
conceptions: "Academic freedom thrives not only on the independent and uninhibited
exchange of ideas among teachers and students, but also, and somewhat
inconsistently, on autonomous decisionmaking by the academy itself." Id.,
at 226, n. 12, 106 S.Ct. 507 (citations omitted). Some of the opinions in our
books emphasize broad conceptions of academic freedom that if accepted by the
Court might seem to clothe the University with an immunity to any challenge to
regulations made or obligations imposed in the discharge of its educational
mission. So, in Sweezy v. New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d
1311 (1957), Justice Frankfurter, concurring in the result and joined by
Justice Harlan, explained the importance of a university's ability to define
its own mission by quoting from a statement on the open universities in South Africa:
FN3. We have long recognized the constitutional importance of
academic freedom. See Wieman v. Updegraff, 344 U.S. 183, 195, 73 S.Ct. 215, 97
L.Ed. 216 (1952) (Frankfurter, J., concurring); Sweezy v. New Hampshire, 354
U.S. 234, 250, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957) (plurality opinion); Shelton v. Tucker, 364 U.S. 479,
487, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); Keyishian v. Board of Regents of Univ.
of State of N. Y., 385 U.S. 589, 603, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967).
" 'It is the business of a university to provide that
atmosphere which is most conducive to speculation, experiment and creation. It
is an atmosphere in which there prevail "the four essential freedoms"
of a university--to determine for itself on academic grounds who may teach, what
may be taught, how it shall be taught, and who may be admitted to study.'
" Id., at 263, 77 S.Ct. 1203 (citations omitted).
These broad statements on
academic freedom do not dispose of the case here, however. Ewing addressed not
the relationship between academic freedom and First Amendment burdens imposed
by a university, but a due process challenge to a university's academic
decisions, while as to them the case stopped short of recognizing absolute
autonomy. Ewing, supra, at 226, and n. 12, 106 S.Ct. 507. And Justice
Frankfurter's discussion in Sweezy, though not rejected, was not adopted by the
full Court, Sweezy, supra, at 263, 77 S.Ct. 1203 (opinion concurring in
result). Our other cases on academic freedom thus far have dealt with more
limited subjects, and do not compel the conclusion that the objecting
university student is without a First Amendment claim here. [FN4] While we have
spoken in terms of a wide protection for the academic freedom and autonomy that
bars legislatures (and courts) from imposing conditions on the spectrum of
subjects taught and viewpoints expressed in college teaching (as the majority
recognizes, ante, at ----, 13), we have never held that universities lie
entirely beyond the reach of students' First Amendment rights. [FN5] Thus our
prior cases do not go so far as to control the result in this one, and going
beyond those cases would be out of order, simply because the University has not
litigated on grounds of academic freedom. As to that freedom and university
autonomy, then, it is enough to say that protecting a university's discretion
to shape its educational mission may prove to be an important consideration in
First Amendment analysis of objections to student fees. Sweezy, supra, at 262-264,
77 S.Ct. 1203 (Frankfurter, J., concurring in result); Ewing, supra, at 226, n.
12, 106 S.Ct. 507.
FN4. Our university cases have dealt with restrictions imposed
from outside the academy on individual teachers' speech or associations,
Keyishian v. Board of Regents, supra, at 591-592, 87 S.Ct. 675; Shelton v.
Tucker, supra, at 487, 81 S.Ct. 247; Sweezy v. New Hampshire, supra, at 236, 77
S.Ct. 1203; Wieman v. Updegraff, supra, at 184-185, 73 S.Ct. 215, and cases
dealing with the right of teaching
institutions to limit expressive freedom of students have been confined to high
schools, Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 262, 108 S.Ct. 562,
98 L.Ed.2d 592 (1988); Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675,
677, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986); Tinker v. Des Moines Independent
Community School Dist., 393 U.S. 503, 504, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969),
whose students and their schools' relation to them are different and at least
arguably distinguishable from their counterparts in college education.
FN5. Indeed, acceptance of the most general statement of academic
freedom (as in the South African manifesto quoted by Justice Frankfurter) might
be thought even to sanction student speech codes in public universities.
The second avenue for
addressing Southworth's claim to a pro rata refund or the total abolition of
the student activity fee is to see how closely the circumstances here resemble
instances of governmental speech mandates found to require relief. As a
threshold matter, it is plain that this case falls far afield of those
involving compelled or controlled speech, apart from subsidy schemes.
Indirectly transmitting a fraction of a student activity fee to an organization
with an offensive message is in no sense equivalent to restricting or modifying
the message a student wishes to express. Cf. Hurley v. Irish- American Gay,
Lesbian and Bisexual Group of Boston, 515 U.S. 557, 572-574, 115 S.Ct. 2338,
132 L.Ed.2d 487 (1995). Nor does it require an individual to bear an offensive
statement personally, as in Wooley v. Maynard, 430 U.S. 705, 707, 97 S.Ct.
1428, 51 L.Ed.2d 752 (1977), let alone to affirm a moral or political
commitment, as in West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 626-629,
63 S.Ct. 1178, 87 L.Ed. 1628 (1943). In each of these cases, the government was
imposing far more directly and offensively on an objecting individual than
collecting the fee that indirectly funds the jumble of other speakers' messages
in this case.
*13 Next, I agree with the
majority that the Abood and Keller line of cases does not control the remedy
here, the situation of the students being significantly different from that of
union or bar association members. Ante, at ----, 11; see Abood v. Detroit Bd.
of Ed., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977); Keller v. State Bar
of Cal., 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990). First, the
relationship between the fee payer and the ultimately objectionable expression
is far more attenuated. In the union and bar association cases, an individual
was required to join or at least drop money in the coffers of the very
organization promoting messages subject to objection. Abood, supra, at 211-213,
215, 97 S.Ct. 1782; Keller, supra, at 13-14, 110 S.Ct. 2228. The connection
between the forced contributor and the ultimate message was as direct as the
unmediated contribution to the organization doing the speaking. The student
contributor, however, has to fund only a distributing agency having itself no
social, political, or ideological character and itself engaging (as all parties
agree) in no expression of any distinct message. [FN6] App. 14-15, 34, 39, 41.
Indeed, the disbursements, varying from year to year, are as likely as not to
fund an organization that disputes the very message an individual student finds
exceptionable. Id., at 39. Thus, the clear connection between fee payer and
offensive speech that loomed large in our decisions in the union and bar cases
is simply not evident here.
FN6. I have noted in other contexts that the act of funding itself
may have a communicative element, see Rosenberger v. Rector and Visitors of
Univ. of Va., 515 U.S. 819, 892-893, n. 11, 115 S.Ct. 2510, 132 L.Ed.2d 700
(1995) (dissenting opinion); National Endowment for Arts v. Finley, 524 U.S.
569, 611, n. 6, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (dissenting opinion),
but there is no allegation that such general expression is objectionable here,
nor is it clear that such a claim necessarily raises substantial First
Amendment concerns in light of the speech promoting and educational aspects of this expression. Cf. Buckley v.
Valeo, 424 U.S. 1, 92-93, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). See
also infra, at ---- - ----, 7-9.
Second, Southworth's
objection has less force than it might otherwise carry because the challenged
fees support a government program that aims to broaden public discourse. As I
noted in Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 873-874,
and n. 3, 889-891, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (dissenting opinion),
the university fee at issue is a tax. [FN7] The state university compels it; it
is paid into state accounts; and it is disbursed under the ultimate authority
of the State. Wis. Stat. § 36.09(5) (1993-1994); App. 9, 18-19. Although the
facts here may not fit neatly under our holdings on government speech, (and the
university has expressly renounced any such claim), [FN8] ante, at ----, 10,
our cases do suggest that under the First Amendment the government may properly
use its tax revenue to promote general discourse. [FN9] In Buckley v. Valeo,
424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), we rejected a
challenge to a congressional program providing viewpoint neutral subsidies to
all Presidential candidates based in part on this reasoning:
FN7. True, one does not have to go to college, but one does not
have to own real estate or receive a dividend.
FN8. Unlike the majority, I would not hold that the mere fact that
the University disclaims speech as its own expression takes it out of the scope
of our jurisprudence on government directed speech. We have never generally
questioned the university's "spacious discretion" to allocate public
funds. See Rosenberger, supra, at 892, 115 S.Ct. 2510 (SOUTER, J., dissenting)
(citing Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991),
and Regan v. Taxation With Representation of Wash., 461 U.S. 540, 103 S.Ct.
1997, 76 L.Ed.2d 129 (1983)).
FN9. Of course, I believe that even a government program that
promotes a broad range of expression is subject to the specific prohibition on
government funding to promote religion, imposed by the Establishment Clause.
See Rosenberger, supra, at 882, 115 S.Ct. 2510 (SOUTER, J., dissenting).
*14 "[The program] is a congressional effort, not to abridge,
restrict, or censor speech, but rather to use public money to facilitate and
enlarge public discussion and participation in the electoral process, goals
vital to a self- governing people. Thus, [the program] furthers, not abridges,
pertinent First Amendment values." Id., at 92-93, 96 S.Ct. 612.
And we have recognized the
same principle outside of the sphere of government spending as well. In
PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d
741 (1980), we rejected a shopping mall owner's blanket claim that "a
private property owner has a First Amendment right not to be forced by the
State to use his property as a forum for the speech of others." Id., at
85, 100 S.Ct. 2035 (footnote omitted). We then upheld the right of individuals
to exercise state-protected rights of expression on a shopping mall owner's
property, noting among other things that there was no danger that such a
requirement would " 'dampe[n] the vigor and limi[t] the variety of public
debate.' " Id., at 87, 88, 100 S.Ct. 2035 (quoting Miami Herald Publishing
Co. v. Tornillo, 418 U.S. 241, 257, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974)
(alteration in original)). The same consideration goes against the fee payer's
speech objection to the scheme here.
Third, our prior compelled
speech and compelled funding cases are distinguishable on the basis of the
legitimacy of governmental interest. No one disputes the University's assertion
that some educational value is derived from the activities supported by the
fee, ante, at ---- - ----, 13-14; supra, at ----, 2, whereas there was no
governmental interest in mandating union or bar association support beyond
supporting the collective bargaining and professional regulatory functions of
those organizations, see Abood, 431 U.S., at 223-224, 97 S.Ct. 1782; Keller,
496 U.S., at 13-14, 110 S.Ct. 2228. Nor was there any legitimate governmental
interest in requiring the publication or affirmation of propositions with which
the bearer or speaker did not agree. [FN10] Wooley, 430 U.S., at 716-717, 97
S.Ct. 1428; Barnette, 319 U.S., at 640-642, 63 S.Ct. 1178.
FN10. The legitimacy of the governmental objective here
distinguishes the case in my view from one brought by a university student who
objected to supporting religious evangelism. See Rosenberger, supra, at 868-871,
115 S.Ct. 2510 (SOUTER, J., dissenting).
Finally, the weakness of
Southworth's claim is underscored by its setting within a university, whose
students are inevitably required to support the expression of personally offensive
viewpoints in ways that cannot be thought constitutionally objectionable unless
one is prepared to deny the University its choice over what to teach. No one
disputes that some fraction of students' tuition payments may be used for
course offerings that are ideologically offensive to some students, and for
paying professors who say things in the university forum that are radically at
odds with the politics of particular students. Least of all does anyone claim
that the University is somehow required to offer a spectrum of courses to
satisfy a viewpoint neutrality requirement. See Rosenberger, supra, at 892-893,
and n. 11-12, 115 S.Ct. 2510 (SOUTER, J., dissenting). The University need not
provide junior years abroad in North Korea as well as France, instruct in the
theory of plutocracy as well as democracy, or teach Nietzsche as well as St.
Thomas. Since uses of tuition payments (not optional for anyone who wishes to
stay in college) may fund offensive speech far more obviously than the student
activity fee does, it is difficult to see how the activity fee could present a
stronger argument for a refund.
*15 In sum, I see no basis to
provide relief from the scheme being administered, would go no further, and
respectfully concur in the judgment.
--- S.Ct. ----, 2000 WL 293217 (U.S.Wis.)
END OF DOCUMENT