Courts continue to require changes at the University of Wisconsin

Madison, WI  – A federal appeals court ruled this week that aspects of the University of Wisconsin student fee system remain unconstitutional.  It did not vindicate the university’s position on mandatory student fees.

The university has argued repeatedly in court that it should not be required to make any changes to its student fee system.  And only because of litigation in Southworth v. Board of Regents of the University of Wisconsin System has the university made any changes at all.

The university has argued that it should not have to make any changes to protect the rights of students forced to pay into the system.  Driving the litigation is the unfair nature of mandatory student fees going to support controversial campus groups.   

This week’s opinion, issued by the United States Court of Appeals for the Seventh Circuit, has been misunderstood, according to Jordan Lorence, senior counsel for the Alliance Defense Fund (ADF) and lead attorney for the students suing the University of Wisconsin.

"I’m surprised the university now takes credit for changes in its system.  It made those changes only because the court ordered them to," said Lorence.  "The university has asked the court many times to impose no changes at all, and has asked to return to the discriminatory system it used in 1995 and before.

 "For instance, the university retained explicit viewpoint-discriminatory policies prohibiting religious groups and partisan political groups from applying for any funding.  But the court acted and compelled the university to abandon those policies," Lorence said.

"It argued to maintain the status quo of a system with no appeals.  If a student group applied for funding to the student government, and was denied, the only ‘appeal’ was to the same committee that originally denied them funding.

"Under the earlier system, students campaigning for election to the student government could openly promise to fund or defund specific groups if elected, with no checks on these campaign promises once elected.  The University of Wisconsin argued to maintain that unfair system.

"The university wanted to keep the system that exempted certain controversial groups from various accountability procedures that other groups had to endure."  These were groups that received the most funding, such as the Wisconsin Public Interest Research Group, or WISPIRG.

"And most interestingly, the University of Wisconsin argued that it should be allowed to maintain a system in which the student government could deny funding to certain groups and then provide no official reasons for the denial.

"All of these salutary changes result from our litigation, and not the university’s concerns for students’ rights," Lorence said.

Additional history

To really understand that the court did not do what the University of Wisconsin asked for, it’s necessary to know the history of the case, Lorence explained.

Scott Southworth and the other students at the University of Wisconsin began the lawsuit in 1995.  

• In March of 2000, the United States Supreme Court sent the case back to federal district court for another look   
• The Supreme Court ordered review of the university’s student fee system to see if it lacked basic protections for the rights of students who were forced to pay into the system  
• Student fee monies were not being distributed in a viewpoint-neutral manner, and the court want that changed

After the case returned to the lower courts in March 2000, the students and their ADF attorney challenged the constitutionality of the many aspects of the student fee system. 

• The students claimed the deficiencies included the prohibition against religious groups and partisan political groups from applying for any funding
• The lack of an appeals system 
• Lack of accountability for certain groups

Between March 2000 and February 2001, the University of Wisconsin made two sets of major changes to the student fee system in response to the persistent litigation of ADF and the student plaintiffs.  

• ADF viewed many of these changes only as moves in the right direction
• ADF had to argue in court that the changes were cosmetic, still inadequate, and definitely unconstitutional

The United States Court of Appeals for the Seventh Circuit this week agreed with ADF that some of the standards were unconstitutional. 

• The federal appeals court even agreed with the plaintiffs that some procedures hide viewpoint-discriminatory funding decisions
• Some of the procedures still allowed student government members to fund groups they like and defund groups they don’t, but hide viewpoint-discriminatory funding decisions

The changes the court pointed to all came because of court action, not because of voluntary action by the university.  

• Now, student government members must vow not to discriminate on the basis of viewpoint
• The ban on funding religious groups and political groups has been repealed 
• The University has established an actual appeals process 
• When the student government denies funding to an applicant group, the student government must record the vote and state in writing why they denied funding to a group

None of these changes would have happened without the ADF litigation.

ADF is a legal alliance of Christian attorneys and like-minded organizations defending the right of people to freely live out their faith. Launched in 1994, ADF employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.