Some Funny Things Happened When We Got to the Forum: Student Fees and Student Organizations After Southworth
Patricia A. Brady and Tomas L. Stafford, 35 J.C. & U.L. 99 (2008)
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The mandatory student fees imposed by colleges and universities for the support of student organizations, student newspapers, and student governments have long been a source of controversy and litigation. Predictably, given the broad array of student groups operating on campuses nationally and the wide range of ideologies and viewpoints they represent, some students have found the activities of some fee-funded student groups to be offensive. From the early 1970s through the 1990s, objecting students filed numerous lawsuits seeking to be exempted from paying for the support of student organizations and activities with which they disagreed.
In Board of Regents v. Southworth (Southworth I), however, the United States Supreme Court, applying principles drawn from cases involving access to limited public forums, held that colleges and universities are entitled to impose mandatory student fees to support the expressive activities of student organizations–without having to create refund or avoidance mechanisms for objecting students–so long as the fees are allocated in a viewpoint neutral manner. While the decision confirmed colleges’ and universities’ ability to maintain mandatory fees programs, the Court’s extension of forum analysis and viewpoint neutrality principles to a forum consisting of money has proved difficult in practice, generating new and complex controversies.
In pre-Southworth I cases, objecting students had based their claims for fees exemptions on compelled speech cases involving mandatory union and bar association dues, where members were allowed to avoid paying those portions of their dues used in lobbying and other expressive activities not directly related to the organization’s principal mission. In Southworth I, the Court declined to adopt this approach, instead expanding on forum analysis principles applied in Rosenberger v. Rector and Visitors of the University of Virginia, a case in which a religious student newspaper was denied access to mandatory fees funding.
