So why do we have to pay for free speech?

Scott Southworth and other conservative students at the University of Wisconsin, whose Madison campus reputedly ranks second only to Berkeley as a leading bastion for activist liberalism, had grumbled for years about their compulsory student activity fees being used in part to fund groups and ideologies they opposed. Theirs was-and is-a gripe commonly heard at taxpayer-supported universities and colleges across the country.

Mr. Southworth and his friends watched the Campus Women's Center attack a pro-life bill in the Wisconsin legislature, the Ten Percent Society lobby for same-sex marriages, and the International Socialist Organization (which advocates the overthrow of the government) demonstrate outside a Madison church to oppose the views of a speaker within. These and more than a dozen other controversial advocacy groups were funded to the tune of tens of thousands of dollars from the more than $1 million the school collected from mandatory student activity fees in the 1995-96 school year. In some cases, the controversial groups turned over part of the funds they received to national counterpart organizations to lobby in Washington.

Fed up by what their annual fees of $331.50 were helping to fund, Mr. Southworth, three other students in the law school, and an undergrad decided in 1995 to challenge the system in court. To help make the case, law student Amy Schoepke tracked the funding: how it worked, which groups got subsidies, and how much. Mr. Southworth, law student Keith Bannach, and the others attended meetings of 18 targeted activist groups, collected their literature and other information, and recorded their activities. They enlisted the Alliance Defense Fund in Scottsdale, Ariz., a joint project of several evangelical organizations (including Campus Crusade and Focus on the Family), to back their lawsuit. The ADF recruited Fairfax, Va., lawyer Jordan Lorence to handle the case.

A year later, a U.S. District Court sided with the students, and last month the 7th U.S. Court of Appeals in Chicago upheld the core of the lower court ruling: University officials cannot use compulsory activity fees of objecting students to fund organizations that "engage in political or ideological activities, advocacy, or speech." Doing so could violate the objecting students' free-speech rights and erode their "freedom of belief," the three-judge panel ruled. Subsidizing such organizations "is not germane to a university's educational mission, and even if it were, there is no vital interest in compelled funding," the court declared. The students' right to freedom of belief, the justices said, "outweighs any governmental interest."

Also, the school cannot merely offer a rebate to objecting students. That would amount to an involuntary loan made by the students, whose money would be used temporarily to help fund objectionable causes, the three-judge panel noted. Officials must find some other way to deal with the issue, it said. (The 7th Circuit case is Southworth et al. vs. Grebe et al.)

Critics complained the court had jeopardized funding of many campus advocacy groups. For example, the homosexual-oriented Lambda Legal Defense and Education Fund said the ruling could choke off support for the Lesbian, Gay, and Bisexual Campus Center at Madison, along with other student groups deemed political or ideological. Said Lambda attorney Patricia Logue: "The court has ordered a wholesale change in how universities fund campus student groups and virtually guaranteed that many groups of all stripes will be silenced. It is ironic and wrong to do this in the name of the First Amendment."

Anticipating such arguments, the appeals panel reaffirmed the rights of all student groups to engage in free speech. But, observed the panel, the "First Amendment's guarantee of free speech does not guarantee that the government will subsidize free speech."

The decision, pending an appeal to the full court, applies to universities in the three states covered by the 7th Circuit: Wisconsin, Illinois, and Indiana. However, plaintiffs' attorney Lorence told WORLD the ruling can influence judgments in other states. It likely has set the stage for a definitive ruling by the U.S. Supreme Court.

The decision relied heavily on high-court opinions in compulsory membership-dues cases and a University of Virginia case involving student fees and funding of campus groups.

In the Virginia case (Virginia vs. Rosenberger), the Supreme Court on June 29, 1995, found in favor of Ronald W. Rosenberger, publisher of a student religious newspaper. The newspaper's sponsoring group had been denied $5,662 in 1990-91 to pay for printing costs on grounds the paper was a "religious" activity and thus such funding would violate the First Amendment's establishment clause. Among 118 other groups funded that year by the mandatory student activity fees were Jewish and Muslim newspapers. The student council's appropriations committee classified them as "cultural" activities, eligible for subsidies. Lower courts agreed with the university's Establishment Clause defense. In a lengthy opinion, however, the high court in a 5-4 decision reversed the lower court rulings. Essentially, the majority said the right of free speech trumps the Establishment Clause in such cases.

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

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

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

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

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

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

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

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