Creating a neutral forum for speech at U. of Wisconsin

(U-WIRE) MADISON, Wis. – Once again the University of Wisconsin finds itself in the national spotlight as a defender against a First Amendment claim.

In previous years, the battle was over the student speech code and the faculty code; the former was declared unconstitutional by a federal court, while the latter fell last year at the hands of a political movement. Now Scott Southworth and his fellow plaintiffs charge that the system of allocated segregated fees distributed by student government violates their First Amendment right not to be associated with causes with which they disagree.

Given the nature of the fee system in place, I agree with an essential part of Southworth’s claim, as I will explain in a moment. But the Southworth case is less clear-cut than the speech code cases. From an abstract perspective, both sides have legitimate free speech interests: the right not to associate vs. the university’s right to promote a broader forum for ideas.

This collision of free speech claims is intrinsic to compelled association cases, for by their nature they involve a party wanting to opt out, in the name of free speech, from contributing to a group or organization that is speaking out on its own behalf. Such cases require a judicious balancing of principles; the direction the balance takes will ultimately depend on the facts in the case. The mechanics of the funding scheme are essential, as is the nature of the forum that is created. While advocates on both sides of the case sling doctrinal broadsides at each other across the constitutional divide, the devil lurks in the details.

In arguments before the Supreme Court last week, Southworth’s lawyer, Jordan Lorence, argued students should be allowed to opt out of any such forum, regardless of how funds are raised and distributed. This argument is not convincing for two major reasons.

First, if the university were to pay for the forum from general funds, there is virtually no way Southworth could claim that the distribution to groups he disdains is reasonably associated with him, or that he is being required to fund them out of his own pocket. Such funding might be objectionable, depending on how it was performed, but compelled association could not be the reason. Professors who speak in class are paid out of general university funds, and no one, including Southworth, argues that professors’ speech constitutes compelled association for students who disagree with our rankings and ravings.

In oral argument, Lorence tried to distinguish professors’ speech from that of students by appealing to the doctrine of government speech, but the court jumped all over this contention. Professors are not simply agents of the state, and students’ free-speech rights are equal to those of professors.

Second, if the system were paid for by general funds, it would support the university’s contention that the forum is an essential part of its education mission – an important point under the Lehnert test that the 7th Circuit Court of Appeals relied on in its decision in Southworth – for the University would be putting its own money where its mouth is, rather than relying on special fees paid by students.

Thus, the University is entitled to fund a forum of disputatious ideas without falling prey to compelled association claims, so long as the mechanism for raising funds sufficiently insulates each student from being associated with funded groups, and if the funds are then distributed in a nondiscriminatory, non-politicized manner.

Indeed, promotion of such a forum is essential to fostering the intellectual vitality that makes a university great. Unfortunately, the reality at Madison bears little resemblance to this model. If you ignore this reality, you might as well be writing about Mars.

Money is taken from each student’s pocket each term and then specifically earmarked to be distributed by an often politicized Associated Student of Madison, which then gives the money to politically and ideologically motivated groups who often engage in overt political activity. This method of funding and its results come perilously close to what the Supreme Court has rightly concluded is compelled association in key precedents. Southworth recoils at being compelled to give his money virtually directly to a student entity that passes it right along to a group that publicly reviles his Christian beliefs (this happened, and often).

Southworth’s posture is no different legally from a devout egalitarian who might object to her money going to a body that passes it on to a racist hate group. Given the nature of the process, it is not unreasonable for an objecting student to feel that the University in these cases is asking her to help fund groups she finds abhorrent, groups that then use that money to attack her beliefs.

This is what the right to be free from compelled association is meant to guard against. Still, whether this process alone constitutes compelled association is a close constitutional call.

Southworth’s position could have been clinched by one more claim: Showcasing the fact that the ASM, which ultimately decides who gets what, is often highly politicized; this has not been the case invariably, but it has been true often enough, and it is inherent in the system. Take a good look at which groups have gotten significant funding this year and in the past, and you will see political favoritism everywhere. And the funding is not simply to promote a forum of ideas, but to push political causes both on and off campus – there are not even any restraints on use of the money for political lobbying and the like off campus.

A brief history lesson is in order: the primary reason for re-establishing student government as the ASM after the demise of the old system in the mid-1990s was to get money to groups with connections off campus. Such fundings are politically motivated and have a less-than-stellar connection to the educational mission of the University. Recent actions confirm the suspicion that favoritism prevails over neutrality.

Take the $170,000 that ASM recently gave to groups associated with multiculturalism. Would an ASM controlled by conservatives or moderates have given such a sum to these groups? Some assert that the problem would be remedied if only conservatives and other outsiders just organized and elected their own faction to ASM. But that would only compound the politicization of funding.

The problem is as simple as it is stark: The university’s case for fees rests entirely on the claim that fees support a neutral forum, not a forum shaped by political power. The political structure that is used to distribute fees contradicts the central normative and constitutional justification for the entire system. However, for strategic reasons Southworth stipulated (conceded) to the Supreme Court that the forum is indeed neutral. (He maintains that compelled association exists anyway.)

He should not have done so, for the actual politicization of the funding process is the system’s Achilles heel. To be sure, the Supreme Court might be influenced by the politicization of the process, Southworth’s stipulation notwithstanding, leading it to fashion a remedy that leans Southworth’s way.

At oral argument, Justice Souter pointed out to Susan Ullman, the University’s lawyer, that it was an odd kind of forum that the University had created. But the stipulation could tie the Court’s hands, limiting whatever victory Southworth might win, if he wins at all. But even if the Supreme Court decides in favor of the University, many students will be left with a bitter taste in their mouths if the University refuses to listen to their concerns about compelled association.

Don’t be surprised to see students resorting to political pressure or conscientious acts of resistance, following in the footsteps of other student groups who have protested University policies in recent years. Regardless of what the Supreme Court decides, the University should face up to the reality of what is going on and reform the system in good faith.

Funding for the forum should be paid for by
the University itself, and funds should be distributed by a body that can be trusted to be neutral – with real checks and balances (no such checks exist presently) to guard the neutrality that the very nature of the process places in constant jeopardy. That way a forum for diverse student speech can thrive in a manner that is true to the principles the University espouses.

-The article originally appeared in the Badger Herald (U. Wisconsin).

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