Southworth v. Bd. of Regents Univ. Of Wisconsin

• Decision Date: 01 October 2002
• Docket Number: No. 01-1912.,01-1912.
• Citation: 307 F.3d 566
• Parties: Scott H. SOUTHWORTH and Benjamin Thompson, Plaintiffs-Appellees, v. BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

307 F.3d 566

Scott H. SOUTHWORTH and Benjamin Thompson, Plaintiffs-Appellees, v. BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM, Defendant-Appellant.

No. 01-1912.

United States Court of Appeals, Seventh Circuit.

Argued November 27, 2001.

Decided October 1, 2002.

As Amended October 2, 2002.

COPYRIGHT MATERIAL OMITTED

Jordan W. Lorence (argued), Alliance Defense Fund Law Center, Scottsdale, AZ, for Plaintiffs-Appellees.

Thomas J. Balistreri, Peter C. Anderson (argued), Office of the Attorney General, Wisconsin Dept. of Justice, Madison, WI, for Defendant-Appellant.

Justin P. Smith, Public Citizen Litigation Group, Michael D. Leffel, Wilmer, Cutler & Pickering, Washington, DC, for Amicus Curiae.

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

MANION, Circuit Judge.

Six years ago, several students at the University of Wisconsin-Madison ("the University") sued the University challenging its mandatory student activity fee system on First Amendment grounds. Following appeals to this court and to the United States Supreme Court, on remand to the district court, the sole issue remaining was whether the mandatory fee system unconstitutionally granted the student government unbridled discretion for deciding which student organizations to fund. According to the students, such unbridled discretion existed and thus the system failed to guarantee that the funds would be distributed in a viewpoint-neutral manner as required by the First Amendment. The district court agreed with the students and held that the University of Wisconsin-Madison's mandatory student activity fee system violated the First Amendment. Fry v. Board of Regents of the Univ. of Wis. Sys., 132 F.Supp.2d 744 (W.D.Wis. 2000). We reverse the district court's decision that the mandatory fee system unconstitutionally grants the student government unfettered discretion, except as to the funding of travel grants for which the student government has yet to adopt specific funding criteria.

I.

This case dates back to 1996, and this is the fourth time it is before us. Southworth v. Grebe, No. 97-1001, 1997 WL 411225 (7th Cir. July 11, 1997) (unpublished order); Southworth v. Grebe, 151 F.3d 717 (7th Cir.1998), rehearing denied, Southworth v. Grebe, 157 F.3d 1124 (7th Cir.), rev'd Board of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000); Southworth v. Board of Regents of University of Wisc. Sys., Nos. 97-3510, 97-3548, 2000 WL 831585 (7th Cir. June 23, 2000) (unpublished order). To the extent necessary, relevant facts are repeated. For additional details, the interested reader is referred to our prior opinions.

In April 1996, three University of Wisconsin-Madison students sued the University challenging a portion of the University's mandatory student activity fee system. The students claimed that forcing them to fund other students' political and ideological speech violated their First Amendment rights. While the mandatory student fees funded both "non-allocable" items (e.g., intramural sports, debt service, upkeep and operations of the student union facilities) and "allocable" programs, the plaintiffs challenged only the allocable portion of the mandatory fee system. These allocable fees were distributed to various Registered Student Organizations ("RSO") which used the money to engage in a variety of extracurricular activities, ranging from displaying posters and circulating newsletters, to hosting campus debates and guest speakers, to political lobbying.

At the time the plaintiffs filed suit, an RSO could obtain a portion of the allocable fees in one of three ways. The organization could seek funding from the Student Government Activity Fund ("SGAF"), which was administered by the Associated Students of Madison ("ASM") Finance Committee, or an RSO could apply for funding from the General Student Services Fund ("GSSF"), which was administered through the Student Services Finance Committee ("SSFC"). The third method of funding was through a student referendum.¹ For instance, during the 1995-1996 academic year, the Wisconsin Public Interest Research Group ("WISPIRG") obtained $45,000 in funding as the result of a student referendum. WISPIRG in turn used this money to support various political and ideological activities and speech, including contributing $2,500 directly to its parent organization, the U.S. Public Interest Research Group ("PIRG") for use in lobbying Congress.

Like WISPIRG, many RSOs used a portion of the student activity fees to engage in political and ideological activities. The plaintiffs, believing that this system unconstitutionally compelled them to fund speech they deemed objectionable, sued the University. The district court granted the plaintiffs summary judgment, concluding that the University's mandatory student activity fee program violated the First Amendment. The University appealed the district court's decision to this court. Applying Abood and Keller² (which held that objecting teachers and lawyers could not be forced to subsidize the speech of a union or a bar association unless that speech was germane to the organization's purpose), this court affirmed. Southworth v. Grebe, 151 F.3d 717 (7th Cir.1998).

The Supreme Court granted certiorari and reversed. Board of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000). In following the principles set out in Abood and Keller, the Supreme Court acknowledged that students attending a "university cannot be required to pay subsidies for the speech of other students without some First Amendment protection." Id. at 231, 120 S.Ct. 1346. The Court nevertheless held that the means of implementing First Amendment protections adopted in Abood and Keller were "neither applicable nor workable in the context of extracurricular student speech at a university." Id. at 230, 120 S.Ct. 1346. However, the Supreme Court held that "[t]he University must provide some protection to its students' First Amendment interests.... The proper measure, and the principal standard of protection for objecting students... is the requirement of viewpoint neutrality in the allocation of funding support." Id. at 233, 120 S.Ct. 1346.

Because in its earlier appeal the plaintiffs stipulated that the ASM Finance Committee and the SSFC allocated the student activity fees in a viewpoint-neutral fashion, the question of viewpoint neutrality was not before the Supreme Court. But, as the Supreme Court noted, the plaintiffs' stipulation did not extend to the referendum method of funding student activities, under which "by majority vote of the student body a given RSO may be funded or defunded." Id. at 235, 120 S.Ct. 1346. This is problematic, the Court explained, because "[t]he whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views." Id. While noting that the record was sparse on the referendum feature, the Court concluded that "[t]he student referendum aspect of the program for funding speech and expressive activities, however, appears to be inconsistent with the viewpoint-neutrality requirement." Id. at 230, 120 S.Ct. 1346. Accordingly, the Court concluded that "[a] remand is necessary and appropriate to resolve this point; and the case in all events must be reexamined in light of the principles we have discussed." Id. at 236, 120 S.Ct. 1346.

Following remand, the plaintiffs moved for leave to void their stipulation that the ASM Finance Committee and the SSFC made funding decisions in a viewpoint-neutral fashion. Southworth, 2000 WL 831585 at *3. The plaintiffs explained that they had made this stipulation because they believed that under Abood and Keller, the University could not force them to fund others' speech, whether or not the funds were distributed in a viewpoint-neutral manner. Id. at *3. The plaintiffs also requested leave to amend their complaint to allege that the mandatory fee system was not viewpoint-neutral because it granted the student government unbridled discretion for deciding which groups to fund. Id. We concluded that those issues were best left to the discretion of the district court. Id. at *4. Accordingly, we remanded to the district court, directing it to consider the plaintiffs' motion for leave to amend their complaint and to void their stipulation that the funds were distributed in a viewpoint-neutral manner. Id. We also remanded to the district court for further consideration of the constitutionality of the referendum. Id. at *3.

Back before the district court, the University moved to dismiss the constitutional challenge to the referendum method of funding student groups. The University maintained that the plaintiffs' challenge to the referendum was moot because, following the Supreme Court's decision in Southworth, the University had amended its student activity fee policy, eliminating the referendum method of funding student organizations. The parties later stipulated to the dismissal of the students' claim challenging the constitutionality of the referendum. The district court then considered the plaintiffs' motion to void their stipulation of viewpoint neutrality and for leave to amend their complaint. The plaintiffs also sought leave to add Benjamin Thompson as a plaintiff. The district court granted all three motions, adding the additional student-plaintiff, voiding the stipulation of viewpoint neutrality, and allowing the plaintiffs to amend their complaint. A bench trial then proceeded on the plaintiffs' amended complaint.

Following trial, the district court issued an oral ruling, holding that the University's mandatory fee system violated the plaintiffs' First Amendment rights by granting the student government too much discretion for determining which student organizations to fund. Four days later, on December 11, 2000, the district court issued a written Supplemental Decision and Order further explaining its...