Mo' Money, Mo' Problems

The history and legality of mandatory fees, and a consideration of their future on campuses across America.

Thomas Jefferson once said "To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical." Operating on this principle, a flurry of lawsuits -- both recent and decades old -- is asking the courts to codify this right not to endorse political ideologies contrary to one's beliefs. Almost all such suits have centered around the student fees that many U.S. Universities, including ours, require students to pay. Claiming that being forced to fund these groups violates their First Amendment free speech protections, suits have been initiated at schools such as U.C. Berkeley, the University of Wisconsin at Madison, and even Lane Community College here in Eugene. The LCC case, initiated by LCC student body president (1992-93) Bill Hollingsworth, was thrown out of court on summary judgement in the 9th Circuit Court. However, the latest court battle in Wisconsin sided with a trio of law students who, armed with almost $100,000 in Alliance Defense Fund assistance, sued the University of Wisconsin at Madison over its mandatory fees, with Lesbian/Gay/Bisexual, Pro-Choice, and "communist" groups particularly in mind. The 7th U.S. Court of Appeals in Chicago ruled August 9th that "Forcing objecting students to fund private organizations which engage in political ideologies violates the first amendment." Not only were the plaintiffs in that case "very pleased and very relieved" after winning the suit, but litigants in cases like Hollingsworth's now hope to use this precedent in order to win their pending appeals. This could have dramatic effects on the way our nation's universities fund their special interest student programs.

But there are a host of student groups nation-wide that fear their programs will be "nickel and dimed out of existence." Recognizing that the court decisions will, if upheld, likely spell doom for their groups, they have responded by accusing the anti-fee activists of intending to eliminate diversity of opinion on college campuses. "This lawsuit is the result of the well-financed efforts of off-campus special interests and essentially it allows them to control the debate that happens on college campuses," said Robin Hubbard of the Center for Campus Free Speech.

And the parent universities have posited a different perspective on the controversy. The Board of Regents at the University of Wisconsin claim that fee-sponsored groups "promote the university's educational mission by providing opportunities for the free expression of diverse viewpoints on difficult and challenging issues." This was also the position taken by the University of California at Berkeley, which was sued in 1979 for essentially the same reason (though the plaintiff objected to the presence of a politically active student senate, rather than to the funding of small identity-politics groups.) The student lawyer, Mark Himelstein, argued that the body is a free speech forum that serves an important educational role, and that financing it with mandatory student fees is a protection of free speech, not a restriction.

Thus the nation finds itself entangled in yet another Constitutional confrontation, as the cherished document's ambiguities rear their ugly heads once again. One side contends that "money equals speech," and that they have the right to refuse to "put their money where mouth isn't." The other claims to defend an institutional forum that exists to promote enlightened discourse for the benefit of all, where constituents pitch in to keep that forum intact. To not pay, they claim, would be "free-riding," enjoying the benefits of something without pitching in like everyone else. While the latter contention has been the loser in many cases, there have been decisions to the contrary. One such decision was at the University of Virginia, where the Supreme Court insisted the university fund a Christian student newspaper since it sponsored other student publications. Sheldon Steinbach, general counsel for the American Council on Education, says "The nuances differ from campus to campus Where the law is going to turn on this issue is unpredictable." With different states going in different directions, lawyers privy to the situation believe that the issue may ultimately need to be resolved by the U.S. Supreme Court.

For those unfamiliar with Constitutional law, trying to sort who is right in this sort of conflict can be difficult. The key is figuring out how the Constitution and case law apply to the gray areas in the actions. Responding to the fundamentalist Christian perspective of the Madison litigants (and perhaps to the fact that their suit was funded by the right-wing Christian Alliance Defense Fund), opponents of this series of lawsuits claim to be staving off a conspiracy not terribly less dire than the one invoked by Hillary Clinton earlier this year. Indeed, the Madison and Hollingsworth cases both mention the Public Interest Research Groups (known in Oregon as OSPIRG and in Wisconsin as WISPIRG) as being among the groups to which the plaintiffs object. Yet in Hollingsworth's case, it isn't the group's intentions that are objected to per se, but rather its refusal to furnish spending descriptions, a problem that continues to plague the organization to this day. And the Berkeley case objected to a highly politicized U.C. Student Association, which the litigant believed to be unconstitutional. Thus, there is no real uniformity of interest in terms of the specific student groups targeted by these lawsuits. For their part, the plaintiffs claim that the Student Associations in power across the country willfully impose leftist agendas on their campuses, pointing to a perceived lack of political diversity as evidence. "There is no balance -- the left has a grip. Student groups on campuses are controlled ideologically," according to Bill Hollingsworth.

This argument need not be resolved in order for the main issue at hand to be settled, however. The claimants invoke their "freedom of speech, freedom of association, free exercise of religion, and their rights under the Religious Freedom Restoration Act" under the U.S. Constitution, which states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Initially, one might fail to see how the freedom to do means that one has the freedom from doing. This distinction between positive and negative freedoms is a valuable one. However, the Constitutional Framers did not mean for their First Amendment freedoms to be a one-way street, and this was finally codified by the Supreme Court in the 1943 case West Virginia State Board of Education v. Barnetta. As Bill Hollingsworth said, "Free speech is a two-sided coin." Thus, Americans have the right not to speak, and not to associate. It is thereby inconceivable to construe the compelling of individual funds for ideological or political use as anything other than a violation of one's First Amendment rights. Notice that this statement reads "a violation of citizen's First Amendment rights" rather than "unconstitutional." This is because states have the right to "infringe upon one's First Amendment right... if it serves a compelling state interest, unrelated to the suppression of ideas, and cannot be achieved through the less restrictive means." The court in which the Berkeley case was tried went so far as to interpret the educational function of a state university as "extremely broad; it potentially encompasses all of life."

This is the defendants' silver bullet. If they can convince the court that collection of student fees in the current manner serves a compelling state interest, then they have a shot at winning their suits. So far, it is unclear with which side of the argument the courts are more likely to agree. While Hollingsworth's case was brought to an end through summary judgement, it has been appealed, and the Madison precedent will force the court to honor or clash with case law, the latter being rare and usually undesirable. Further, courts have sided with plaintiffs suing the State University of New York and Rutgers University over mandatory student fees that were funding NYPIRG and NJPIRG, two east-coast equivalents of OSPIRG. The judges in those cases concluded that "the educational benefits... offered were insufficient to justify the infringement of the dissenting students' speech and associational rights." At Berkeley, the court found that "at the point the educational benefits offered by a student organization become incidental to the organization's political and ideological purposes, the funding of said organizations is no longer germane to the university's function."

This is a judicial mess. There are too many cases lacking uniformity of decision, and on an issue of this significance, such inconsistency is entirely unacceptable. Hollingsworth, whose suit is one of the few that has yet to be decided in favor of the plaintiff, believes that it is "inevitable" that his case will go to the Supreme Court. He notes that while student groups like OSPIRG downplay the issue ("What's the beef? It's only $3.00 a term!"), the real issue is the constitutional protection of free speech. "They don't see the forest for the trees," he says. For most college students, the groups that have been cited are not especially offensive. I have personally never objected to OSPIRG's agenda. This does not mean that it is acceptable to mandate someone who does object to it to fund its agenda. A hypothetical case makes this easier to understand: suppose that a small group of U of O students forms together to create neo-nazi group that somehow convinces the fee administrators to provide it with minor funding. You are only required to pay $.17 a term for this group. Does that make you any more amenable to the prospect? If this hypothetical is too unlikely for you, then try the NRA, Pro-Life, Promise Keepers, etc. The principle is the same: an individual should not be compelled to fund a group that they find personally offensive or otherwise strongly disagree with.

In the absence of, or perhaps resulting from, a Supreme Court ruling that upholds the Madison finding and applies it nationally, there are approaches to student group funding that do not encroach on individual rights. The first would be to simply consider all student groups as "political," and then make the portion of the student fee that goes to student groups optional. The states' argument that student fees should be amalgamated into one pool used as a forum for a variety of interests is a legitimate one, and with this plan all who pay for political groups are doing so on a voluntary basis. No one can fairly accuse a university of violating their rights for accepting funds that were allocated by choice. Some might fear that students would stop paying fees en masse at the opportunity to save a buck. But anyone who participates in a club sport, writes for a newspaper, works on student government, rides the city bus, etc. would probably get these benefits, and accept that some of their money was being allocated to student groups that may not perfectly reflect their political views.

A second approach would be to offer students the option of withholding their money on a group by group basis. Students could either pay like they always have in the full amount, or request a listing of campus groups and deny funding to those that they object to. To those who fear masses of paperwork and bureaucracy as a result, it should be noted that a few students feel very strongly about supporting groups they disagree with or know about. Students selecting this option would be a rarity, but the existence of an alternative such as this would allow the fee structure to conform to the First Amendment.

This issue may strike some as petty. After all, at Madison, the plaintiffs were paying a whopping $.72 a term for WISPIRG, one of the groups they identified themselves as being strongly opposed to. But if Hollingsworth, et. al. are right that they have a constitutional right to not pay for something they don't believe in, then their suits are on behalf of everyone. Everyone in this country benefits from our constitutional protections. The litigants are an oasis of constitutionality in what scholar Thomas Mann has called a "plebiscitary wave in our politics which favors initiatives, referendums, and other forms of direct democracy over the reassured discussion." Our nation is currently experiencing a proliferation of situations and laws many consider to be glaringly unconstitutional, and thus very threatening: "innovations" that, if left alone, may seriously undermine democratic order. As groups attempt to develop more expedient forms of government at the expense of the constitution and our basic democratic rules, it is important that we remember the value of what would seem to be the most inalienable rights, which quite frankly weren't inalienable for millions of people for thousands of years. It is also critical that vigilant citizens remind us when we lose such perspective and jeopardize the progress we've made.

Gabe Bloch, a junior majoring in Political Science, is a staff writer for the Oregon Commentator.