Southworth v. Grebe

• Citation: 151 F.3d 717
• Decision Date: 26 February 1998
• Docket Number: 97-3548,Nos. 97-3510,s. 97-3510
• Parties: 128 Ed. Law Rep. 624 Scott H. SOUTHWORTH, Amy Schoepke, Keith Bannach, et al., Plaintiffs-Appellees, Cross-Appellants, v. Michael W. GREBE, Sheldon B. Lubar, Jonathan B. Barry, et al., Defendants-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 717

151 F.3d 717

128 Ed. Law Rep. 624

Scott H. SOUTHWORTH, Amy Schoepke, Keith Bannach, et al Plaintiffs-Appellees, Cross-Appellants, v. Michael W. GREBE, Sheldon B. Lubar, Jonathan B. Barry, et al., Defendants-Appellants, Cross-Appellees.

Nos. 97-3510, 97-3548.

United States Court of Appeals Seventh Circuit.

Submitted Feb. 26, 1998. ^*

Decided Aug. 10, 1998.

Jordan W. Lorence (submitted), Northstar Legal Center, Fairfax, VA, for Plaintiffs-Appellees, Cross-Appellants.

Susan K. Ullman, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendants-Appellants in No. 97-3510.

James E. Doyle, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendants-Appellees in No.97-3548.

David E. Wood, Fund for Public Interest Research, Incorporated, Madison, WI, for Amicus Curiae Wisconsin Student Public Interest Research Group, Incorporated, Associated Students of Madison.

Patricia M. Logue, Lambda Legal Defense and Education Fund, Midwest Regional Office, Chicago, IL, Ruth Harlow, Lambda Legal Defense and Education Fund, New York City, for Amicus Curiae Lesbian, Gay and Bisexual Campus Center at University of Wisconsin-Madison, Lambda Legal Defense & Education Fund, Incorporated.

Before BAUER, WOOD, Jr., and MANION, Circuit Judges.

MANION, Circuit Judge.

Students attending the University of Wisconsin-Madison must pay a student activity fee. A portion of this mandatory fee is distributed to private organizations which engage in political and ideological activities. Plaintiffs, students at the University of Wisconsin-Madison, sued the Regents of the University claiming that forcing objecting students to fund such organizations violates their First Amendment rights, as well as other federal and state statutes. After various procedural motions and argument, the district court granted plaintiffs summary judgment on their freedom of speech and association claims, dismissed the remaining claims, and entered an injunction which both barred such funding and established a detailed opt-out mechanism. We affirm the district court's determination that forcing objecting students to fund private organizations which engage in political and ideological activities violates the First Amendment, but reverse and vacate portions of the declaratory judgment and injunction.

I. BACKGROUND

A. Procedural and Factual Background

Plaintiffs Scott Southworth, Amy Schoepke, Keith Bannach, Rebecca Bretz, and Rebecka Vander Werf each attended or still attend the University of Wisconsin-Madison. They sued the members of the Board of Regents of the University of Wisconsin System ("the Regents"), claiming that the Regents' use of objecting students' mandatory student activity fees to fund private organizations that engage in political and ideological advocacy, activities, and speech violates their rights of free speech and association the Free Exercise clause of the Constitution, the Religious Freedom Restoration Act, ("RFRA"), ¹ and various state laws. They sought both injunctive and declaratory relief.

The district court granted plaintiffs summary judgment on their free speech and free association claims, and the Regents appealed. We dismissed the original appeal as impermissibly interlocutory, and remanded to the district court. Southworth v. Grebe, 124 F.3d 205 (7th Cir.1997) (unpublished order). Following various interim procedural refinements--none of which merit discussion here-the district court dismissed the remaining claims and granted the plaintiffs injunctive relief.

This successive appeal followed. Because extensive briefing and argument on the merits of this case have already occurred, we instructed the parties to limit their additional briefing to the district court's decision on remand. We have reviewed these new briefs and the record, and conclude that additional oral argument on those issues is unnecessary, Fed. R.App. P. 34(a), Cir. R. 34(f). We now proceed to the merits, which include only the plaintiffs' First Amendment challenge to the Regents' mandatory student activity fee policy.

B. Mandatory Student Fee Policy

Students enrolled full-time at the University of Wisconsin-Madison must pay a mandatory student activity fee; it's mandatory because students who refuse to pay cannot receive their grades or graduate. During the 1995-96 academic year (the academic year during which the plaintiffs filed suit) the Regents assessed a mandatory student fee of $165.75 each semester.

Section 36.09 of the Wisconsin Code gives both the Regents and the students control over the funds generated by the mandatory student fee. The extent of control depends on the classification given the student fees: The Regents classify a portion of the student fees as nonallocable and a portion as allocable. Although the students (through student government representatives) review and make recommendations regarding the use of nonallocable fees, the Regents control the distribution of these fees. (The nonallocable fees cover expenses such as debt service, fixed operating costs of auxiliary operations, student health services, and the first and second year of the Recreational Sports budget.) On the other hand, the Associated Students of Madison ("ASM") (the official representative of the student body) has complete authority over most of the allocable funding. Because the plaintiffs challenge only the funding from the allocable portion of student fees, we focus on those expenditures.

The distribution network for allocable student fees is rather complicated. We will attempt to draw the money trail to help explain the source of the complaint. As just noted, the ASM has authority over the allocable portion of student fees. Among other things, these fees fund the General Student Service Fund ("GSSF") and the Associated Students of Madison budget. In turn, both the GSSF and the ASM distribute the mandatory student fees to other private organizations, although the distribution process differs. The GSSF is distributed to private organizations by a committee of the ASM called the Student Services Finance Committee ("SSFC"). ² Registered student organizations, University departments, and community-based service organizations qualify for funding from the GSSF. To obtain money from the GSSF, the organization must apply to the SSFC. After reviewing the application, the SSFC determines whether to grant or deny the request for money, and if granted the SSFC also determines the amount of funding the private organization will receive. During the 1995-96 school year, the SSFC distributed about $974,200 in student fees to private organizations.

The ASM budget also funds private organizations, although only "Registered Student Organizations" qualify for funding from the ASM budget. To qualify as a Registered Student Organization, among other things, a group must be a formalized not-for-profit group, composed mainly, but not necessarily exclusively, of students, and controlled and directed by students. A Registered Student Organization may obtain money from the ASM budget in the form of a grant to support its operations, related travel, or to sponsor an event. During the 1995-96 school year, the ASM budget distributed $109,277 in student fees to private organizations.

In addition to obtaining money from the GSSF and the ASM budget, a Registered Student Organization may seek funding through a student referendum. With a student referendum, students vote at large on whether or not to approve an assessment for the student group. The Wisconsin Student Public Interest Research Group ("WISPIRG") obtained $49,500 in student fees during the 1995-96 academic year as the result of a student referendum.

After the ASM and the SSFC (or the students by referendum) have made their funding decisions, these decisions are sent to the Chancellor and the Board of Regents for their review and approval; while the ASM has complete authority over most of the allocable funding, the Regents have final authority to approve or disapprove the allocations of funds by the student government under section 36.09(5) of the Wisconsin Code.

C. Organizations Funded by the Student Fees

The GSSF, the ASM budget, and student referendums can fund many different activities and organizations. However, the plaintiffs object only to the funding of organizations which engage in political and ideological activities with fees collected from students who object to such funding. (Henceforth we shall refer to them as "objecting students.") Plaintiffs presented evidence of eighteen organizations which both receive student fees and engage in political and ideological activities: WISPIRG; the Lesbian, Gay, Bisexual Campus Center; the Campus Women's Center; the UW Greens; the Madison AIDS Support Network; the International Socialist Organization; the Ten Percent Society; the Progressive Student Network; Amnesty International; United States Student Association; Community Action on Latin America; La Colectiva Cultural de Aztlan; the Militant Student Union of the University of Wisconsin; the Student Labor Action Coalition; Student Solidarity; Students of National Organization for Women; MADPAC; and Madison Treaty Rights Support Group.

Reviewing the evidence in the light most favorable to the Regents, as we must, we conclude that the 18 organizations listed above both receive student fees and engage in political and ideological activities. While the record is replete with examples, we limit ourselves to a sample:

WISPIRG, which received $49,500 in student fees during the 1995-96 school year, distributed $2,500 directly to its parent organization U.S. PIRG for use in lobbying Congress and developing candidate-voter guides. WISPIRG also published a voters' guide, which ranked congressional candidates based on their views on various pieces of federal legislation. During 1995-96, the UW Greens received $6,905 in student fees. The UW Greens, along with the...