Scott H. Southworth, Amy Schoepke and Keith Bannach v. Michael W. Grebe, Sheldon B. Lubar, Jonathan B. Barry
Docket: 97-3510, 97-3548
Court: Court of Appeals for the Seventh Circuit; October 27, 1998; Federal Appellate Court
In the case 157 F.3d 1124, plaintiffs Scott H. Southworth, Amy Schoepke, and Keith Bannach appealed against defendants Michael W. Grebe and others regarding First Amendment issues. The United States Court of Appeals for the Seventh Circuit, after reviewing a petition for rehearing en banc, denied the request, with a majority of judges opposing it. Judges Ilana Diamond Rovner, Diane P. Wood, and Terence T. Evans dissented, arguing that the panel's decision conflicts with rulings from other circuits and misinterprets Supreme Court precedents, thus adversely affecting public universities' ability to fund diverse student groups. The dissenting opinion highlighted that the panel's ruling extends the prohibition against compelled speech further than established by the Supreme Court, pointing out that the funding mechanism in this case differed from prior cases like Abood and Keller, where the funding recipients were directly involved in the challenged speech. Instead, the funds are allocated through student government to various groups, independent of the students' viewpoints.
The students' complaint centers on being compelled to support speech with which they disagree. The student government's role is primarily to promote itself and provide a platform for diverse student views, not to endorse specific ideologies. Funding is allocated in a content-neutral manner, as established in Rosenberger v. Rector and Visitors of the University of Virginia, ensuring a broad range of ideas is expressed, critical to a university's educational mission. The students acknowledge that the funding system is intended to facilitate free expression, which inherently means the student government does not advocate for all opinions represented in the forum.
The argument posits that since the student government’s funding does not promote specific political speech, it cannot be seen as compelling students to support such speech. This contrasts with cases like Abood and Keller, where funds were used to promote specific political views, thus linking the speech directly to the funding entities. Here, the student government does not associate itself with any political stance, and funding is not based on ideological support. Therefore, if the student government is not engaging in objectionable speech, the question of compelled speech does not arise, emphasizing that the source and use of funds do not create a constitutional issue unless the funding body itself is promoting a specific ideology.
Even assuming that speech from secondary recipients of funds could be seen as compelled speech attributed to students, this does not indicate a constitutional violation. The panel employs an inappropriate test that does not fit the context of this case and fails to examine each challenged expenditure individually, neglecting to properly balance them. The panel's determination that political and ideological speech is not relevant to the educational mission contradicts Supreme Court precedents emphasizing the value of free expression and debate in universities, including landmark cases like Healy v. James and Keyishian v. Bd. of Regents. Furthermore, the panel's focus on the individual motives of funding recipients, such as the International Socialist Organization, misdirects the analysis, which should center on whether the funding by student government supports educational objectives, independent of the group's intent.
The reliance on the case Galda v. Rutgers is inappropriate, as that case involved funding specifically aimed at an objectionable group rather than a general fund for diverse student organizations. The dissent argues that concerns about interference with students' speech rights are exaggerated, citing Lehnert v. Ferris Faculty Assoc., which is not controlling due to its limited support. The dissent points out that the burden on objecting students is alleviated by the availability of funds for opposing viewpoints, unlike in Abood and Keller, where speech was controlled by a single entity. Students can form their own groups to express contrary views, mitigating any perceived burden.
The dissent warns that the panel's ruling could severely undermine the tradition of student-managed activities at public universities, as it suggests that the First Amendment could prohibit allocation of funds to student groups based on the offensiveness of their message to some students. This outcome would drastically limit student expression and activities.
The dissenting opinion argues against the en banc court's decision not to rehear the case, emphasizing that the First Amendment and relevant Supreme Court precedents do not support the panel's conclusions. Key reasons for en banc review include: 1) existing circuit conflicts, as seen in Carroll v. Blinken; 2) the reliance on a plurality opinion in Lehnert v. Ferris Faculty Ass'n, creating important unresolved legal questions; and 3) the panel’s decision conflicting with the Supreme Court's ruling in Rosenberger v. Rector and Visitors of the University of Virginia.
The dissent highlights that students at the University of Wisconsin are required to pay a student activity fee, which funds the Associated Students of Madison (ASM) and various groups, some of which engage in political or ideological activities. The panel viewed this as compelling students to subsidize the speech of those groups, equating it to compelled subsidization of speech in previous Supreme Court cases. The panel concluded that this violates First Amendment rights, proposing a remedy that allows dissenters to opt out of funding objectionable groups.
The dissent challenges the panel's premise, arguing that the fee constitutes support for a neutral forum for speech rather than direct funding of particular speech. It asserts that there is a critical distinction between funding a forum and funding specific speakers, supported by the Supreme Court's position in Rosenberger that emphasizes nondiscriminatory access to such forums. The dissent contends that the principles governing compelled funding of a neutral forum differ significantly from those governing the funding of specific groups or speakers.
The government cannot require citizens to financially support the Catholic Church but may allow the Pope to conduct a mass in a public forum like the Mall, as established in O'Hair v. Andrus. While non-Catholic citizens may indirectly "subsidize" the Pope's message, this connection is too tenuous to violate the First Amendment. Censoring speech to avoid offense would necessitate closing the forum entirely. Additionally, the University of Wisconsin requires students to pay tuition, which funds various operations, including salaries for faculty whose views some students may find objectionable. However, students are presumed to accept this funding structure upon enrollment, knowing the diverse opinions represented. This situation parallels the relationship between dissenting workers and unions, where dissenters do not lose rights simply by being aware of the union's activities. The First Amendment does not require universities to fund faculty based on individual consent for their speech. Both the University and the Associated Students of Madison (ASM) create neutral forums for expression rather than endorsing specific viewpoints. Consequently, previous cases like Abood and Keller offer limited guidance, as those organizations did not establish viewpoint-neutral forums and were engaged in their own political agendas, which is distinct from the ASM's role.
Objecting students at the University of Wisconsin at Madison are required to fund the Associated Students of Madison (ASM), which supports a variety of organizations with differing and often conflicting viewpoints. This situation contrasts with cases like Abood and Keller, where funding was directed to an organization promoting a singular viewpoint, which necessitated opt-out provisions for dissenters due to First Amendment concerns. The student activity fee, by contrast, fosters a viewpoint-neutral forum and does not impose the same constraints. The case of Lehnert, which dealt with required union dues from nonmembers, is deemed inapplicable as it involved direct payments to an organization engaged in specific speech rather than a neutral forum.
The dissenting opinion criticizes the majority for potentially undermining the diversity of viewpoints at the university, warning that if dissenters' rights are enforced in a manner similar to Rosenberger, it could lead to a decline in organizational funding and participation. This could result in students objecting to a wide range of organizations, making it impractical to accommodate individual preferences among the large student body. The dissent argues that such a ruling risks dismantling the neutral forum necessary for robust political and intellectual discourse, essential in a university context, and contradicts the goals of Rosenberger. Moreover, it emphasizes that eliminating this forum would deprive students of valuable community engagement and skills development opportunities. Ultimately, the dissent asserts that the majority mischaracterized the student activity fee as a compelled subsidy for specific speech rather than a mechanism for fostering a neutral forum, with significant negative implications for public universities in the circuit and student experiences.
