OCTOBER TERM, 1999
Syllabus
BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM
v.
SOUTHWORTH ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT
No. 98-1189. Argued November 9, 1999-Decided March 22, 2000
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, and
Keller v.
State Bar of Gal., 496 U. S. 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, 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
218
Syllabus
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, and fees paid by lawyers
who were required to join a state bar association,
Keller,
supra, at 13-14, 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 stu-
219
dents 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. 229-234.
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. 234-235.
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. 235-236.
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,
post, p. 236.
Susan K. Ullman, Assistant Attorney General of Wisconsin,
argued the cause for petitioner. With her on the briefs were
James E. Doyle, Attorney General, and
Peter C.
Anderson, Assistant Attorney General.
Jordan W Lorence argued the cause for respondents.
With him on the brief was
Daniel Kelly. *
*Briefs of
amici curiae urging reversal were filed for
the State of New York et al. by
Eliot Spitzer, Attorney
General of New York,
Preeta D. Bansal, Solicitor General,
Peter H. Schiff, Deputy Solicitor General,
Laura
Etlinger, Assistant Attorney General, and
Mark B.
Rotenberg, and by the Attorneys General for their respective
States as follows:
Mark Pryor of Arkansas,
Ken
Salazar of Colorado,
Thurbert E. Baker of Georgia,
Thomas R. Keller of Hawaii,
Thomas J.
Miller of Iowa,
Richard P. Ieyoub of Louisiana,
J. Joseph Curran, Jr., of Maryland,
Thomas F.
Reilly of Massachusetts,
Mike Hatch of Minnesota,
Joseph P. Mazurek of Montana,
Michael F.
Easley of North Carolina,
Betty D. Montgomery of
Ohio, and
Paul G.
Summers of Tennessee; for the State
of Oregon by
Hardy
220
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
Myers, Attorney General,
David Schuman, Deputy
Attorney General, and
Michael D. Reynolds, Solicitor
General; for the American Civil Liberties Union et al. by
Jon G.
Furlow, Steven R. Shapiro, Elliot M. Mincberg,
and
Judith E. Schaeffer; for the American Council on
Education et al. by
Stephen S.
Dunham, Leonard M.
Niehoff, and
Sheldon E. Steinbach; for the American
Federation of Labor and Congress of Industrial Organizations by
Jonathan P. Hiatt, James B. Coppess, and
Laurence
Gold; for the Brennan Center for Justice at New York University
School of Law by
Scott D. Makar, Robert Bergen, Michael
J. Frevola, and
Burt Neuborne; for the
Lesbian, Gay, Bisexual, and Transgender Campus Center at UWMadison
et al. by
Patricia M. Logue and
Ruth E. Harlow; for
the National Legal Aid Defenders Association, Student Legal
Services Section, by
Ned R. Jaeckle and
Kathleen A.
Cushing; for the National Education Association by
Robert H.
Chanin, Andrew D. Roth, and
Michael D. Simpson; for the
New York Public Interest Research Group by
Alexander R.
Sussman; for the Student Press Law Center et al. by
Lucy A.
Dalglish; for Student Rights Law Center, Inc., by
Mitchel D.
Grotch; for the United States Student Association et al. by
David C.
Vladeck and
Alan B. Morrison; for
United Council of University of Wisconsin Students, Inc., by
Mark B. Hazelbaker; for the University of California Student
Association by
Michael S.
Sorgen and
Amy R.
Levine; and for the Wisconsin Student Public Interest Research
Group et al. by
Daniel H. Squire, Craig Goldblatt, and
Francisco Medina.
Briefs of
amici curiae urging affirmance were filed for
the Atlantic Legal Foundation by
Martin S.
Kaufman
and
Edwin L. Lewis III; for the American Center for Law and
Justice by
Jay Alan Sekulow, Mark Nathan Troobnick, and
James Matthew Henderson, Sr.; for the Christian Legal
Society by
Steven T. McFarland, Samuel B. Casey, and
Thomas C.
Berg; for the Family Research Institute by
Roy H. Nelson; for Liberty Counsel by
Mathew D.
Staver; for the National Legal Foundation by
Barry C.
Hodge; for the National Right to Work Legal Defense
Foundation, Inc., by
Raymond J. LaJeunesse,
Jr.; for the National Smokers Alliance by
Renee
Giachino; for the Pacific Legal Foundation et al. by
Deborah J. La Fetra; and for the Washington
Legal Foundation et al. by
Daniel E. Troy, Daniel
Briefs of
amici curiae were filed for Americans United
for Separation of Church and State et al. by
Steven K. Green,
Steven M. Freeman, and
Ayesha N Khan; for First Freedoms
Foundation by
Michael D. Dean; for
221
extracurricular student speech at a public university.
Respondents are a group of students at the University of Wisconsin
(hereinafter University). They brought a First Amendment challenge
to a mandatory student activity fee imposed by petitioner Board of
Regents of the University of Wisconsin System 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.
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."
the Rutherford Institute by
John W Whitehead and
Steven H. Aden; and for Owen Brennan Rounds et al. by
Thomas H. Nelson.
222
§ 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.
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 19951996 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 Uni-
223
versity'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
224
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.
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
225
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 thee] 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.
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
226
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
227
United States District Court for the Western District
ofWisconsin 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
(1977), and
Keller v.
State Bar of Gal., 496 U. S. 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.
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 (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
228
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 (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 bane. 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
(CA7 1998) (D. Wood, J., dissenting).
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
(CA9 1999);
Hays County Guardian
v.
Supple, 969 F.2d
111, 123
(CA5 1992), cert. denied, 506 U. S. 1087
(1993);
Kania v.
Fordham, 702 F.2d
475, 480
(CA4 1983);
Good v.
Associated
Students of Univ. of Wash., 86 Wash. 2d 94, 105, 542 P. 2d 762,
769 (1975) (en bane), with
Smith v.
Regents of Univ. of
Cal., 4 Cal. 4th 843, 862-863, 844 P. 2d 500, 513-514, cert.
denied, 510 U. S. 863 (1993). These conflicts, together with the
importance of the issue presented, led us to grant certiorari. 526
U. S. 1038 (1999). We reverse the judgment of the Court of
Appeals.
229
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 (1991);
Regan v.
Taxation With
Representation of Wash., 461 U. S. 540, 548-549
(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.
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
230
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 (1993);
Widmar v.
Vincent, 454 U. S. 263 (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.
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 (1977);
Keller v.
State Bar of Cal., 496 U. S. 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. 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. 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 repre-
231
sentative."
Id., at 234. 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. The lawyers could not, however, be
required to fund the bar association's own political expression.
Id., at 16.
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.
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 gov-
232
ernment 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 (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.
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.
233
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.
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 (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. While
Rosenberger was concerned with the
rights a student has to use an extracurricular speech program
already in place, to day'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
234
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.
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 offcampus 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. 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
235
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 (1991);
Regan v.
Taxation With Representation of Wash.,
461 U. S. 540
(1983). The Court has not held, or suggested, that when the
government speaks the rules we have discussed come into play.
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
(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
236
SOUTER, J., concurring in judgment
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 233-234.
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. 1
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.2 Two sources of law might be considered
in answering this question.
1 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
Court of Appeals, see
ante, at 235 and this page, and I
would say nothing more on that subject.
2 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-
237
The first comprises First Amendment and related cases grouped
under the umbrella of academic freedom.3 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 233. 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 (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 (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 (1957),
Justice Frankfurter, concurring in the result and joined by Justice
Harlan, explained the
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.
3 We have long recognized the constitutional importance of
academic freedom. See
Wieman v.
Updegraff, 344 U. S. 183, 195 (1952)
(Frankfurter, J., concurring);
Sweezy v.
New
Hampshire, 354 U.
S. 234, 250 (1957) (plurality opinion);
Shelton v.
Tucker, 364 U.
S. 479, 487 (1960);
Keyishian v.
Board of Regents of
Univ. of State of N. Y.,
385 U. S. 589, 603
(1967).
238
SOUTER, J., concurring in judgment
importance of a university's ability to define its own mission
by quoting from a statement on the open universities in South
Africa:
" '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 (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. And
Justice Frankfurter's discussion in
Sweezy, though not
rejected, was not adopted by the full Court,
Sweezy, supra,
at 263 (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.4 While we have spoken in
terms of a wide protection for the academic free-
4 Our university cases have dealt with restrictions imposed from
outside the academy on individual teachers' speech or associations,
id., at 591-592;
Shelton v.
Tucker, supra, at
487;
Sweezy v.
New Hampshire, supra, at 236;
Wieman v.
Updegraff, supra, at 184-185, 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
(1988);
Bethel School Dist. No. 403 v.
Fraser,
478 U. S. 675,
677
(1986); Tinker v.
Des Moines Independent Community
School Dist., 393
U. S. 503, 504 (1969), whose students and their schools'
relation to them are different and at least arguably
distinguishable from their counterparts in college education.
239
dom 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 232), we have never held that
universities lie entirely beyond the reach of students' First
Amendment rights.5 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 (Frankfurter, J.,
concurring in result);
Ewing, supra, at 226, n. 12.
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, Inc., 515 U. S. 557, 572-574
(1995). Nor does it require an individual to bear an offensive
statement personally, as in
Wooley v.
Maynard,
430 U. S. 705,
707 (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
(1943). In each of these cases, the government was imposing far
more directly and offensively on an objecting individual than
col-
5 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.
240
SOUTER, J., concurring in judgment
lecting the fee that indirectly funds the jumble of other
speakers' messages in this case.
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 230; see
Abood v.
Detroit Bd. of Ed., 431 U. S. 209 (1977);
Keller v.
State Bar of Gal., 496 U. S. 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;
Keller, supra, at 13-14. 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.6 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.
Second, Southworth's objection has less force than it might
otherwise carry because the challenged fees support a gov-
6 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 (1995) (dissenting opinion);
National Endowment for
Arts v.
Finley, 524 U. S. 569, 611, n. 6
(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
(1976) (per curiam). See also
infra this page
and 241-243.
241
ernment 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 (1995) (dissenting opinion),
the university fee at issue is a tax.7 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),8
ante, at 229, our cases do
suggest that under the First Amendment the government may properly
use its tax revenue to promote general discourse.9 In
Buckley v.
Valeo, 424 U. S. 1 (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:
"[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 (footnotes omitted).
7True, one does not have to go to college, but one does not have
to own real estate or receive a dividend.
8 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 a university's "spacious
discretion" to allocate public funds. See
Rosenberger,
supra, at 892 (SOUTER, J., dissenting) (citing
Rust v.
Sullivan, 500
U. S. 173 (1991), and
Regan v.
Taxation With
Representation of Wash., 461 U. S. 540
(1983)).
9 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
(SOUTER, J., dissenting).
242
SOUTER, J., concurring in judgment
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 (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 (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 (quoting
Miami Herald
Publishing Co. v.
Tornillo, 418 U. S. 241, 257 (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 232-233;
supra, at 237, 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, supra, at 223-224;
Keller, supra, at 13-14.
Nor was there any legitimate governmental interest in requiring the
publication or affirmation of propositions with which the bearer or
speaker did not agree.lO
Wooley, 430 U. S., at 716-717;
Barnette, 319 U. S., at 640-642.
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
10 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 (SOUTER, J., dissenting).
243
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 nn. 11-12 (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.
In sum, I see no basis to provide relief from the scheme being
administered, would go no further, and respectfully concur in the
judgment.
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