Editorial part II
The Supreme Court may have unanimously upheld the constitutionality of the mandatory student fee system, but the fight has only just begun.On the Wednesday of spring break 2000, while many a student was eagerly shedding his or her towel on the beach of Cancun for MTV's cameras, the Supreme Court handed down their ruling on the case of Wisconsin v. Southworth. As the brief amount of time the jury spent deliberating the OJ Simpson case was telling, so was the timing of this decision. Had the Court ruled in favor of Scott Southworth and objectors to the mandatory incidental fee, the ruling would have likely come down at the end of the academic year - all the better to mute the chaos that would have inevitably met the decision.
At the University of Oregon, a fee very much similar to the one objected to by Wisconsin students has already been contested in the circuit court system. While the mandatory fee subsidizes a wide range of services which benefit students, the controversy primarily revolves around certain activities financed by the student governments of both universities. The ASUO, like the MSU at the University of Wisconsin at Madison, is the very student government for which mandatory fees are collected in the first place.
Prior to the Southworth case, Rounds v. Oregon State Bd. of Higher Ed. (1999) challenged the legality of the student fee system, in particular their subsidy of the Oregon Student Public Interest Research Group, known colloquially as OSPIRG. In Wisconsin, Southworth and his fellow petitioners filed their initial suit in 1996 with the analogous WISPIRG principally in mind. The myriad problems with the PIRG system have been recounted innumerable times in the pages of the Commentator, and even the Supreme Court indicated their own doubts in the majority opinion: "For reasons not clear from the record, WISPIRG receives lump sum cash distributions from the University... the full extent to which WISPIRG puts its funds is unclear." What the Court did not know about the PIRGs would all but surely tip the case in the other direction.
Of course, the specifics of the PIRG system were not central to the case; it was instead about the mandatory fee system that supports them. In this decision, the Court for the most part - but not entirely - upheld the fee.
Were student governments and PIRGs across the nation merely breathing a sigh of relief, that alone would be understandable. Instead they are calling it an unequivocal victory for the mandatory fee process, a statement that is both myopic and easily fallible. Quoted in the Oregon Daily Emerald on Monday the 27th, ASUO President Wylie Chen claimed that the ruling "erases any doubt people have about paying the fee." Either the Emerald used his words out of context, or Chen is simply unfamiliar with the particulars of the decision - even the Justices of the Court expressed their own doubts about the fee while upholding it.
A simple assessment of the majority and concurring opinions (issued by Justices Anthony Kennedy and David Souter, respectively) reveals the obvious: the Court issued what can only be defined as a mixed ruling. Some arguments are less developed than others; key terms have yet to be defined; and a number of new issues have been raised. A unilateral endorsement of the current system it is not.
The Court in fact merely acknowledged states' constitutional freedom to collect money from enrolled students for disbursement by their student governments. "The First Amendment permits a public university to charge its students an activity fee... if the program is viewpoint neutral," Kennedy affirms in the opinion. So long as the appropriation of fees is based on an impartial process protecting minority speech - as the first amendment intends - the system is constitutionally protected.
Had Chen or any other student body officer bothered to read the entirety of the opinion and fully comprehend its implications, they would understand that the Southworth ruling is by no means the Court's final statement on the mandatory fee process. Instead, they have drawn up the blueprints for future debate on the fee issue - and carved out the specifics of potential litigation in the future.
Viewpoint neutrality in the allocation of student funds - essentially an impartial distribution of monies to student programs without regard to their political or religious orientation - is the key principle upon which the Court supported the fee system. However, even this noble standard carries with it many questions and uncertainties that the Court has failed to address in full. Supporters of the fee system point out that governments collect taxes from constituents who may not support all of the programs financed by their dollars. Whether an individual student disagrees with some of the programs, they argue, is irrelevant - all groups have a right to use the forum - so long as it is viewpoint neutral. The problem with this argument is illustrated by Supreme Court precedent:
Prior to AETC v. Forbes (1998), delivered also by Justice Kennedy, the Court had affirmed three distinct and recognized varieties of fora (it's the plural of forum, look it up). The distinction was critical to the Forbes case, as it is to the mandatory fee debate. The 'democratic exchange of ideas' consists of the following three categories: traditional public fora, nonpublic fora, and public fora created by government designation.
The mandatory fee system falls into the third category. The peculiarity of this funding model is that it blurs the line between private and public spending, and hence, private and public speech. The Supreme Court, perhaps rightly, seemed to think they were faced with an all or nothing proposition. Either they had to affirm the use of student fees for whatever a university might deem educational - or they had to deny universities the right to collect fees in the first place.
The Court, of course, opted for the former.
Student groups must obviously compete for access to this money, as it is a limited, if bloated, resource. Southworth's argument was that unpopular causes will not be granted equal access in the politically biased nature of government, and therefore a standard of viewpoint neutrality must be adhered to.
But what does "viewpoint neutral" mean, anyway? The concept sounds strangely oxymoronic. Can a viewpoint be neutral? Rather, can an opinion be impartial? This reasoning is confusing at best and inconceivable at worst. Nevertheless, this is the Supreme Court's qualifier on the legality of the mandatory fee system.
Kennedy explains, "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." Justice Souter, in his concurring opinion (joined by Justices Stevens and Breyer), takes the University's assurance that their process is viewpoint neutral at face value: "I would hold that the First Amendment interest claimed by [Southworth] ... is simply insufficient to merit protection by anything more than the viewpoint neutrality already accorded by the University, and I would go no further."
Is the fee allocation process at the University of Oregon viewpoint neutral? Clearly, there are dozens of ASUO programs that lean to the left-of-center, while the Oregon Commentator is the only funded organization that regularly espouses conservative beliefs. The empirical evidence at the University of Oregon, at Wisconsin, and elsewhere would indicate that the system is clearly biased in its orientation.
Popular bias does influence speech created by the fee; minority voices are often neglected.
One of the silver linings to the decision is the Court's position that "the student referendum mechanism of the University's program... appears to permit the exactation of fees in violation of the viewpoint neutrality principle." A ballot measure inherently favors popular speech over unpopular, thereby violating this already vague principle.
OSPIRG, for example, has traditionally gone to the ballot to obtain their budget; under the Southworth ruling, OSPIRG would have to seek ASUO funding in the same manner as virtually all other student-funded programs.
Were OSPIRG to go before the ASUO Programs Finance Committee (PFC) each year, what would be the likely outcome? Two facts about the PFC's operational procedure are integral to understanding this.
First, the PFC presumably bases its allocation to programs on, inter alia, each individual organization's financial solvency and accountability. OSPIRG currently receives a flat $126,000 by mandate of the popular vote, all of which is sent directly to its parent organization in Portland. No specific records have ever shown if, or how much, any of that money returns to the University of Oregon campus. Calling OSPIRG accountable to students is a stretch by any definition. It stands to reason that the PIRG system to which many object would have to demonstrate how their money is spent, lest they lose their budget.
On the other hand, OSPIRG has historically held a powerful sway both in the ASUO Executive office and the Student Senate, of which the PFC is part. Despite frequent criticism, their influence is substantial. Whether the PFC will continue to fund an unaccountable program without the student mandate has yet to be seen.
The only way to ensure that student fees are distributed properly (i.e. fairly and impartially) is to remove human decision from the process. This is patently impossible. Whether a group is funded by a popular vote or by government officials elected by a popular vote, the result is the same. Political influence cannot be divorced from the process fee allocation process.
This is one of the Court's less developed arguments. While Kennedy is correct to recognize the referendum process as flawed, he does not carry this reasoning to its full extent. This stands as a likely point of contention upon which further lawsuits might be based.
Another significant aspect of the ruling concerns to what degree incidental fee programs are germane to the academic atmosphere of a university, and what this even means specifically. The ramifications of the Court's decision on this matter are quite ominous.
The Court recognized that the incidental fee is collected to help state universities fulfill their educational role outside of the strict classroom setting. The mission of the University of Wisconsin, as cited from the majority of the opinion is: "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."
It is no great leap of logic to call this a broad definition. Over the years, state systems of higher education have developed thousands of programs, departments, and policies, and the existing mandatory fee is one tax among many. What a University can squeeze under the definition of its "educational mission" could fill Autzen stadium a dozen times over.
The Court understandably walks a fine line in trying to interpret what a University's educational mission encompasses and what does not. Err too far to either side and the educational atmosphere of a state university is compromised. Souter writes, "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."
Essentially, the Court refuses to define the educational mission of a public university. Nearly anything could be potentially educaitonal, political and religious groups included. If the actions of WISPIRG (or perhaps a WISNational Rifle Association) meet the state's requirements as an educational extension of the university's programs, then a university may require its students to fund it without relief on First Amendment grounds.
By opening up the criteria for appropriate student groups to include political and religious groups, the Supreme Court has written a blank check for any organized union to seek incidental fees which it may put to virtually any use it sees fit.
Thereby, the Oregon State PIRG, along with the College Democrats, Republicans, and the Libertarian National Socialist Green Party (were one to exist here) could all receive University funding.
One of two things is likely to happen as a result of this decision. Now that a wider array of organizatons are eligible to receive funding under a "viewpoint neutral" system, more student groups will be competing for the same incidental fee - $163 per term, nearly five hundred dollars per year - diluting the budgets of existing programs. The more plausible outcome, however, is that the incidental fee will not remain at the current level. As recently as the 1996-97 school year, the fee was approximately $137 per term, and each year the fee has increased by as much as ten percent. More groups entering the fray means a greater strain on the ASUO's resources, and potentially, fee increases unlike those previously seen at the UO. Neither scenario is particularly conducive to the so-called 'marketplace of ideas and free speech.' This year, the ASUO Student Senate set a zero percent benchmark, keeping the incidental fee at the same level for next year as it was for this one. Undoubtedly, the looming Southworth case was the principal, if not sole, motive for this sudden bout of fiscal conservatism. Now that this bullet has been temporarily dodged (to use a currently popular idiom) student governments - who by and large control fee increases - will be free to continue along their trajectory of an ever-upward spiralling incidental fee.
Attending a public university is expensive enough as it is - now it will become even more inaccessible to those of lesser means. Five hundred dollars per year may be a drop in the bucket for some, but for many more it could mean the difference between attending the University of Oregon or attending Lane Community College - where students paid a total of $24.38 per term in incidental fees last year.
The potential for abuse should be self-evident, and this threat is far from theoretical. OSPIRG has already demonstrated what can happen when public funds and private interests are mixed. Student PIRGs, which are registered with the state as 501(c)3 non-profit corporations, may collect public fees but may not spend them on political activities such as lobbying. State PIRGS are separate legal entities registered as 501(c)4 non-profit corporations. By contrast they may not receive public funds, but they are permitted to spend money on lobbying efforts. The great bulk of the Student PIRG's budget is paid to the State PIRG as rent and to pay staffers' salaries - money that is in turn spent on the organization's political activities. The fact that this is in violation of tax code is obviously not one the Court was familiar with.
The streamwalks, voter registration drives and comparable activities that the Student PIRGs conduct on campus are volunteer efforts with scant overhead, requiring an infinitessimal fraction of their overall budget.
When you come down to it, PIRGs are not legitimate student groups acting on behalf of a university's educational atmosphere - they are fronts for a political lobby that exploits the mandatory fee system for its own gain. Students at the University of Oregon have been taken advantage of for decades - now Justice Kennedy has given OSPIRG and other political factions the constitutional protection to continue doing so.
However, the Court did grant objectors to the fee and to the PIRGs' funding model an invaluable weapon: while the Court refused to limit the spending of fee money off-campus, they did affirm the right of state universities to do this themselves, should they determine a group's activities not germane to the academic development of its students.
"We make no distinction between campus activities and the off-campus expressive activities of objectionable [fee-funded programs]," Justice Kennedy writes. "If the University shares those concerns, it is free to enact viewpoint neutral rules restricting off-campus travel or other expenditures... for it may create what is tantamount to a limited public forum if the principles of viewpoint neutrality are respected."
Were the Oregon University System, Dave Frohnmayer, or even Wylie Chen to decide that OSPIRG does not fall under university's educational umbrella - an argument for which there is no shortage of evidence - the PIRG could be out of a funding base.
Quoted in newspapers and on television toward the end of spring break, many student representatives (including one ASUO presidential candidate and his campaign manager, who shall remain nameless) proclaimed the Supreme Court's affirmation of "student control over student fees."
Not only is this claim short-sighted and incompatible with the facts, it is misleading. Student fees are paid by every matriculated student on the University of Oregon campus. Student control of these fees is held and fiercely guarded by an active but self-interested minority, a minority which includes OSPIRG. When student government leaders extol the virtue of "student control of student fees," what they are celebrating is their right to control your money.
Whether you want to count students by voter turnout or by actual participation in ASUO programs, the numbers speak for themselves: the ASUO does not accurately represent the student body of the University of Oregon.
All things told, calling the Southworth decision a victory for either party is not easy to do. The incomplete nature of the ruling - especially the remanded referedum process - ensures that this will not be the last case heard on the subject. The direction the debate heads in is very much up to the students who have for years endured a contemporary and very real form of taxation without representation.
Perhaps one thing alone is clear: the battle lies still ahead of us. Thanks to Wisconsin v. Southworth, the lines are now better distinguishable - if only just a little.