By Dave Roland, Contributing Writer, and Lata Nott, Executive Director, First Amendment Center
Last updated: March 2017
To provide more avenues for students’ personal development, public colleges often require them to pay an “activities fee” to offset the expenses of intramural sports programs, recreation centers, student government, student publications and student clubs. The universities justify these fees as a contribution to each school’s mission of providing a broad educational experience and, in the case of student clubs, a free exchange of ideas among students.
Controversy ensues when the funds raised through these fees are distributed to organizations with potentially objectionable purposes. Students opposed to those purposes may assert a First Amendment interest in not being forced to support ideas with which they disagree.
In Widmar v. Vincent (1981), the Supreme Court determined that public universities could not refuse official recognition of student groups where the perspectives or philosophies that they sought to advance were otherwise protected expression under the First Amendment and the public-forum doctrine. The case involved a group of Christian students at the University of Missouri at Kansas City who were applying for official status under normal university guidelines. The students’ application was rejected because the school believed such recognition would run afoul of the establishment clause of the First Amendment, prohibiting government sponsorship of religion.
The Court, however, adopted the rationale that the independent organization of students into clubs could not be construed as the action of the university or a representation of its official views, and therefore a Christian group could be treated no differently than any other student association. To discriminate in such a manner would be to abandon the viewpoint-neutrality demanded of administrators.
The Widmar Court was not unanimous in its reasoning. The dissenters said that student groups, if recognized as envisioned in the majority opinion, could reasonably receive university funding, either directly or indirectly, and that where those funds supported the clubs’ missions, it would amount to an endorsement. The Supreme Court has recently addressed these concerns with a pair of bookend cases: Rosenberger v. University of Virginia (1995) and Board of Regents of the University of Wisconsin v. Southworth (2000).
In Rosenberger, leaning on the distinction between students’ private ideas and official university policy, the Court found that even the funding of an explicitly Christian organization and the dissemination of its sectarian views by way of a newspaper was not only allowable, but required where the same provision was made for similar student groups. Again, the Court was divided. The dissenting justices, in addition to their position that the establishment clause had been violated, invoked Thomas Jefferson’s Virginia Bill for Establishing Religious Freedom, which says that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.”
The Court had previously issued two influential opinions (Abood v. Detroit Board of Education in 1977 and Keller v. State Bar of California, 1990) that brought this idea into First Amendment jurisprudence. Members of certain public organizations, those rulings held, could not be compelled to contribute monetarily to the advancement of ideas to which they were opposed. The Rosenberger decision avoided that debate entirely, however, as the justices chose not to hold anything other than that the university had the right to decide whether the challenged allocation was tailored to further its educational interests.
The issue arose again in Southworth. Ironically, it was a group of Christian students that brought suit, objecting to their student fees’ being distributed to groups that sought to advance ideas contrary to their own. Citing the authority of Abood and Keller, the lower courts found that the students could not be compelled to support those groups with mandatory fees. The Supreme Court disagreed.
The Southworth Court determined that the cases relied upon by the lower courts did not apply. The difference was that the university itself was not advocating or advancing any particular belief, but rather using the funds to establish a viewpoint-neutral forum for students to voice their own opinions and consider those of others. Furthermore, they found that to allow the student body a majority vote through which funds to disfavored groups could be withheld would be to deprive the forum of its necessary viewpoint-neutrality.
However, in Christian Legal Society Chapter v. Martinez, which the Court decided in 2010, the Court found that a university could withhold recognition and funds from a student organization that did not comply with a state law requiring the organization be open to all students (the organization in question would not admit gay students). The Court stated that the state anti-bias law was reasonable and viewpoint neutral, and therefore did not infringe upon the First Amendment rights of the Christian Legal Society.
As the law stands today, when a public college or university chooses to create a “marketplace of ideas” by collecting and redistributing student fees, it is forbidden to allocate those fees in any way that would discriminate according to the perspective of a potential recipient. The school may choose to structure its program so that students will be refunded part of their fee if they do not want it to be used by student organizations, but failure to provide such an option will not violate the First Amendment rights of the students.