By Michael D. Peabody, Esq.
Published in Liberty Magazine – May / June 2002
The school’s policy seemed clear enough-student clubs receiving funds through Utah Valley State College’s student activity fee program had to be open to all students. No exceptions. For the Eagle Forum Collegians, a conservative student club formally opposed to “radical feminism” and the “homosexual agenda,” this posed a serious problem. After all, club members thought, if anybody could join their club, homosexuals and feminists would soon fill the ranks and erode the club’s message from the inside out.
On the other hand, why should homosexuals or feminists be required to fund a group that so actively opposed them on such a personal level?
When the college declined to fund the club unless it opened its doors to all college students, Eagle Forum Collegians leader Kendra Ruzicka and her lawyer, Matthew Hilton, requested in writing that the university make an exception to the rule. The club, they reasoned, should not be forced to accept those who might have threatened its existence or at least altered their message.
In addition, Ruzicka and her lawyer sent a letter to the Utah attorney general, Jan Graham, claiming that the policy denied Eagle Forum Collegians their First Amendment rights of association, religious exercise, and freedom of speech.
Graham responded that the policy was “based upon sound, compelling reasons” and would therefore be enforced. Graham added that if the group refused to adopt a more inclusive policy, it would no longer be able to operate as an officially sanctioned club and would forfeit its access to funds from the yearly student activity fees, among other things.
From the age when long-haired hippies roamed the earth to the days of their body-pierced progeny, America’s college campuses have been host to a hodgepodge of debate, discussion, and protest about the issues of the day. From “Make love, not war” to “Meat is murder,” college kids have raised their voices LTCVC the din of a seemingly apathetic society to point loudly to the issues that really matter.
This vast store of energy is not lost on college and university administrators who wish to encourage a “robust exchange of ideas.” While not everybody will agree with all the ideas that they promulgate, college kids have a message that comes from somewhere in the soul where the ideal is not shrouded by the constraints of jaded practicality. As one judge has observed, “the nation’s fundamental civic values are forged in the intellectual fires of its college campuses.” Although the message of students may sometimes appear muddled or run against the grain of the rest o: society, one thing remains clear-in their eyes they can change the world.
Through systematic collection of student activity fees, universities fund programs that encourage students to express themselves Student fee systems first began to appear at a time when public universities were prohibited from charging for tuition but could collect fees for “incidental” expenses. The scope of student fee usage gradually expanded until student governments, publications, sports, honor societies and other programs were funded in the 1970s.
Although the right of universities to collect these fees has been upheld, the scope of what the fees may be used for is the subject of intense controversy. Within the surrounding litigation there are two general categories in which student fees have been the subject of scrutiny First, there are students who feel that their groups are being unconstitutionally excluded from receiving funding. Second, there are students who feel that universities violate their First Amendment rights when they are compelled to fund speech that they disagree with or even find strongly offensive.
Constitutionally, the litigators in both of these scenarios have a point The First Amendment guarantees every individual the freedom to express his or her beliefs. But also implicit in the First Amendment is the “negative right” to be free from compelled association with or expression o: ideas or beliefs with which one disagrees.
The First Amendment-and the entire Constitution, for that matter-was developed in the “soil of laissez-faire individualism” when the people sought freedom from the constraints o: an overreaching government. A couple of centuries later, however, society has come to expect government not only to support the individual rights protected by the Bill of Rights, but also under certain circumstances, to financially support a portion of the expression of those rights.
To reconcile the pure enjoyment of those rights with the modern tendency to seek a more active government is a daunting task. How can the government avoid infringing on the rights of citizens when there is an increasing demand for government involvement and funding implicating those very rights? Where is the line?
Within the Supreme Court there are two major views that compete on this issue. Chief Justice William Rehnquist and Justice Antonin Scalia argue that when the government funds expression, it has the “broad authority” to decide what to support. In other words, if the government is going to fund a program, it should have discretion in a variety of areas, including viewpoint considerations, when deciding what to fund. On the other hand, Justices Blackmun and Souter champion the approach that the First Amendment should apply to funding decisions just as it applies to traditional speech regulations. When the government creates an open forum for expression, they reason, the government should allow freedom of expression without regard to the viewpoint message being sent out. It should not impose censorship.
As a whole, the Court has generally tended to lean toward the idea that “government may not grant a benefit on the condition that a beneficiary surrender a constitutional right, even if the government may withhold that benefit altogether.” The Court has reasoned that “if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited.” This would allow the government to “produce a result which [it] could not command directly.”
The extent to which the government must be viewpoint-neutral when it funds speech by third parties is still unclear. However, when the government operates a program that by its terms appears to be open to all comers or a large number of speakers, the courts have generally held that the allocation of funding must b« viewpoint-neutral.
Although people do not have the right to gc onto any governmental property that they choose and begin making speeches, the Court has recognized that when the government does expressly make its property available for public use, it may not exclude speakers based on the content or viewpoint of the message they wish to communicate. Once it has created a “public forum,” the government can exclude speech based on content or viewpoint only when it can demonstrate that the exclusion is “narrowly tailored” to meet a compelling governmental interest, such as protection from obscenity.
The Court has also recognized that the government may create a “limited public forum” When it has opened up its property for a specific use, such as student organization meetings or school board meetings. Under current constitutional interpretation the Court is very reluctant to bend the First Amendment to allow political or ideological speech to be singled out for less than equal treatment when a public forum has been created. As long as the speech is relevant to the purpose of the limited public forum, the right to speak cannot be denied unless a compelling governmental interest is threatened.
In a limited public forum there may be content-based discrimination to maintain the boundaries of the forum; however, viewpoint discrimination is impermissible. For example, a public university can bar an individual from making a presentation on quantum physics at a symposium on the Civil War, but it may not discriminate based on one’s view of the Civil War.
In Healy v. James the Court applied its public forum doctrine to college campuses when it noted that “state colleges and universities are not enclaves immune from the sweep of the First Amendment.” In Healy the Court held that a public university had violated a group’s First Amendment rights of association when it denied recognition to a student group based on the group’s views.
The Court applied this rationale a dozen years later when it found that a regulation that prohibited the use of school facilities “by any group for religious purposes” had been unconstitutionally applied when it was used to prohibit a church from using a public school’s facilities to show a film dealing with family values from a Christian perspective. The Court struck down the regulation as it was applied, reasoning that the exclusion had been viewpoint-based, because there was no indication that the school would have excluded similar films if they had been presented from a different perspective.
When the government provides an open forum for the exercise of free speech, it does not mean that the government has endorsed what is communicated. The U.S. Supreme Court summarized this legal principle when it explored the issue of religious speech in such a forum in Widmar v. Vincent. “An open forum in a public university does not confer any imprimatur of State approval on religious sects or practices” any more than it is “now committed to the goals of the Students for a Democratic Society, the Young Socialist Alliance, or any other group eligible to use its facilities.”
The Court’s method of open forum analysis has protected controversial and unpopular expression by university students. In Rosenberger v. Rector the Court extended that protection to cases involving mandatory student activities fees.
In Rosenberger the Court ruled that the University of Virginia could not refuse to fund a Christian student publication while funding similar nonreligious publications. The university had originally made the decision not to fund the Christian student paper because it felt that it would violate the establishment clause by doing so.
By making such a distinction based on the content of the newspapers, the University of Virginia triggered the application of the Court’s strict scrutiny analysis by creating a limited public forum. In order to administer the program in a viewpoint-neutral manner, the university would have had to evaluate the Christian publication, using the same criteria that it used to evaluate other participating publications. The university’s stated purpose of the student activity fee was “to open a forum for speech and to support various student enterprises.” Therefore, the Court reasoned, the university would not have been advancing or otherwise endorsing the message of the religious publication had it evaluated the publication using the same viewpoint-neutral criteria it had used to evaluate the publications that it had accepted.
In addition to the right to speak when the government provides the opportunity to do so, there is also the “negative right” not to be compelled to be associated with an idea against one’s own interest.
The First Amendment does not explicitly protect rights of association, but the Supreme Court has reasoned that both the right to free association and the right not to associate are implicit within the text of the First Amendment.19 In most of these cases an individual is asserting the right to not be associated with a message with which he or she disagrees. In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, the Court recently found that a state’s public accommodations law conflicted with the freedom of association when the state forced a group to include a gay, lesbian, and bisexual contingent in its parade. The Court found that the state had changed the message the group was trying to communicate through the parade and improperly associated the group with a pro-homosexual message through the forced inclusion.20
Applying the reasoning in Hurley to the situation involving the Eagle Forum Collegians at the Utah Valley State College, the rule that they must accept all students strikes directly at their First Amendment rights of association and free speech.
While an argument could be made that this student group has no entitlement to funding, because the government is not required to subsidize speech,21 legal precedent would prevent this argument from applying in this situation, in which the college has decided to enhance its educational objectives by creating a public forum for public speech. It must equally protect the students’ right of association, because to do otherwise would necessarily impact and change the composition and, by extension, the message that the club is seeking to promote.
Because the college has created a limited public forum that funds this type of organization, the Court would likely find that it must do so without regard to the viewpoint of the message, even if it does not agree with how the students within the organization are choosing to exercise their First Amendment rights.
The Supreme Court recently addressed the issue again in Wisconsin v. Southworth, when it upheld a mandatory student fee structure that paid for various groups within and had created a limited public forum. Under the University of Wisconsin program, a portion of the student activity fees pays for postage, office supplies, and other expenses of a variety of campus clubs. According to the university, the main purpose of the program is to promote extracurricular activities “stimulating advocacy and debate on diverse points of view,” as well as to enable students to engage in political activity.
In 1996 several students filed suit against the university arguing that their First Amendment rights to free speech, free exercise of religion, and freedom of association were compromised when the student fees were used to fund what they felt were offensive student organizations.21 They argued that it was compelled speech | :< against their interest.
Justice Anthony Kennedy, writing for the c Court’s majority, recognized that the funding s policy did burden the offended students’ right to free speech to a degree. “It is inevitable that government will adopt and pursue programs s within its constitutional powers but which nevertheless are contrary to the profound beliefs and sincere convictions of some of its citizens.” However, Kennedy concluded that “the government, as a general rule, may support valid programs and policies by taxes or other exactions binding on protesting parties.”
In short, the Court reasoned that because I the funding process was viewpoint neutral, the interests of the objecting students were sufficiently protected. After all, the Court explained, I offended students could create their own clubs to promote their own views under the program.
Beyond the legal issues and the Court’s decisions the question of public policy remains. Public funding rarely comes without significant strings attached, and those organizations that do accept this funding have historically had to make concessions. However, when a public university creates a limited public forum, the Court has consistently ruled that it must fund these organizations in a viewpoint-neutral manner. Thus, the public university has only one prerogative when it comes to deciding which organizations to fund-it must not discriminate.
While it is unlikely that a chess club and a physics club will be at odds, when it comes to religious student organizations requesting such funding, there will often be a conflict. Religious groups have “God-given” exclusionary mandates that conflict with the public policy, which is decidedly against discrimination. Although courts usually recognize the right of religious organizations to discriminate against those whose lifestyles are “morally offensive” to them, the waters between antidiscrimination public policy and the legal requirements of a limited public forum are rife with sandbars.
As most public universities and public institutions continue to support a public policy that discourages discrimination against traditionally marginalized groups, those with a conservative ideology are finding themselves gradually circulated to the fringe. At many relatively liberal campuses conservatives are finding that liberal students are accepted at the table of ideas as they are pushed away.
Recently the Tufts University student government “derecognized” the student Christian Fellowship after it denied an openly gay member a leadership position. As a result, the Christian Fellowship lost a $6,000 annual stipend, could no longer use classroom facilities, lost access to listing services, and could no longer affiliate itself with Tufts.
After a large response from the public, expressing outrage, Tufts University officially reinstated the Christian Fellowship’s official status. While Tufts is a private university and is not under the same strictures as a public university, the situation is emblematic of what is occurring in colleges and universities nationwide, both public and private.
The First Amendment right of association is especially valuable to those few dissenters who find themselves in disagreement with the majority of students. In the past, traditionally marginalized groups, such as women, ethnic minorities, and homosexuals, have claimed this right to band together to assert their demands for equality. To achieve recognition, these groups had to battle institutions that were openly hostile to their concerns. Now that the tables have turned, these formerly marginalized groups are taking steps to deny their opponents the right to speak or associate freely.
When a university provides a public forum for its students, the First Amendment rights of speech and association are not limited to those ideas that are considered politically correct by the majority. The marketplace of ideas is “not confined to the supervised and ordained discussion which takes place in the classroom.” Such discussion “is not only an inevitable part of the process of attending school; it is also an important part of the educational process.”23 As long as all students are welcome at the table of ideas each public university and college will continue to be “a neutral ground where the dash of ideas is unfettered.”24
Michael Peabody, a repeat contributor to Liberty, puts his legal training to effective use in analyzing the sometimes complicated religious liberty trends. He writes from Riverside, California. The ramifications of free speech and religious liberty on campus were highlighted by post-September 11 charges that the nation’s universities had not adopted a correctly patriotic response. Generally this complaint was in response to the academic commitment to multiculturalism, historical analysis, and an openness to other viewpoints of faith and principle. It accents how high the stakes are.
1 See Keyishian v. Board of Regents, 385 U.S. 589,603 (1967). (“The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues'”)
2 Smith v. Regents of the University of California, 844 P.2d 500,527 (Cal. 1993) (J. Arabian dissenting).
3 See generally David L. Meabon, et al., Student Activity Fees: A Legal and National Perspective 1 (1979): pp. 6-7. ‘ See Meabon, p. 24. ‘ See Smith, p. 505.
6 See Rosenberger v. Rector 6- Visitors of the University of Virginia, 515 U.S. 819 (1995).
‘ See Board of Regents of the University of Wisconsin v. South-worth, 2000 U.S. LEXIS 4154 (decided June 19,2000).
‘ See Lehnert v. Ferris Faculty Association, 500 U.S. 507, 516 (1991).
‘ See West Virginia State Board of Education v. Bamette, 319 U.S. 624 (1943).
10 Steven J. Heyman, “State Supported Speech,” 1999 Wis. L.
” Rust v. Sullivan, 500 U.S. 173 (1991).
” Perry v. Sindermann, 408 US 593, 597 (1972) [quoting Speiser v. Randatt, 357 U.S. 513, 526 (1958)]. 13 See Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37,45 (1983) (holding that content nor viewpoint based restrictions on access to a public forum must be evaluated under the strict scrutiny standard).
” See City of Madison Joint School District No 8 v. Wisconsin
Employment Religious Community, 429 U.S. 167,197 (1976).
11 Healy v. James, 408 U.S. 169 (1972).
” Lambs Chapel v. Center Moriches Union Free School
District, 408 U.S. 384 (1993).
” Widmar v, Vincent, 454 U.S. 263 (1981).
” Rosenberger, p. 819.
” See West Virginia Board of Education, p. 642.
M Hurley v. Irish-American Gay, Lesbian and Bisexual Group
of Boston, 515 U.S. 557 (1995).
” See Regan v. Taxation With Representation, 461 U.S. 540, 545 (1983).
22 These organizations included WISPIRG; the Lesbian, Gay, Bisexual Campus Center; the Campus Women’s Center; the UW Greens; the Madison AIDS Support Network; the Internationalist Socialist Organization; the Ten Percent Society; the Progressive Student Network; Amnesty International; United States Student Association; and Community Action on Latin America, among others.
33 Tinker v. Des Moines Independent Community School District, 393 U.S. 503,512, 513 (1969). 14 Wilson, David A. “The Public Service Role of the State University in a Changing World,” in Leslie W. Kiepplin, et al., eds., The Future of State Universities (1985).