Free Speech in the Academy

What do Amnesty International, the Students of NOW, th’e International
Socialist Organization, the Campus Women’s Center, Wisconsin PIRG, and the Madison
AIDS Support Network all have in common at the University of Wisconsin? According to a 7th <D>Circuit Court of Appeals panel, those
student groups, or student affiliates of national groups, are banned from receiving any
support from student activity fees in virtue of the fact that they “engage in
political and ideological activities, speech, or advocacy.”

The University of Wisconsin, like most colleges and universities, collects a
mandatory fee to support campus groups and activities. At Madison that fee generates $1
million annually, which is distributed by the student government to registered student
organizations, department functions, community-based service organizations, and general
campus activities or programs chosen by the student representatives. In 1996 five students
sued the UW Board of Regents, claiming that their having to incrementally fund a
particular 18 groups (among them those above) violated their rights of free speech and
association, and the free exercise of religion clause. On August 10 the federal appeals
court agreed, and has now prohibited the collection of student fees if a portion of such
monies goes to fund groups engaging in “political and ideological” activities,
at least in that district (Wisconsin, Illinois, Indiana). A similar case at the University
of Minnesota is in the legal pipeline; policies for funding student groups at other
universities will surely be contested in the wake of this decision. If this ruling is
allowed to stand, or if other federal circuits follow suit, there are dark days ahead for
student speech and activism of all stripes.

Though there have been a few previous court cases bearing directly on the
constitutionality of student fees funding “political” speech (e.g., fees for
state-PIRG groups upheld in New York, thrown out in New Jersey), the 7th Circuit panel
based its reasoning on several Supreme Court decisions regarding challenges to mandatory
union or association dues (Abood 1977; Keller 1990; Lehnert 1991). In these cases,
dissenting union or bar association members objected to the portion of their mandatory
dues being used to support political activities with which they disagreed. In the Lehnert
case, the Supreme Court developed a more formalized “three-prong” test,
according to which a union may constitutionally collect dues only if such funds are
“germane” to collective bargaining, justified by a government “vital policy
interest” (in the Supreme Court’s view of labor relations, strictly “labor
peace” and “avoiding free-riders”), and do not “significantly add to
the burdening of free speech that is inherent in the allowance of an agency or union
shop.” Let’s put aside the broader question of whether these precedential cases
did justice to the union (in Lehnert, for instance, the Supreme Court insisted that the
“State constitutionally may not compel its employees to subsidize legislative
lobbying or other political union activities outside the limited context of contract
ratification or implementation.” So much for sending a union rep to the statehouse to
talk to legislators about privatizing state jobs, attrition rates, the state’s
pension plan, or anything else). Suppose the 7th Circuit judges were fully justified in
looking to Supreme Court “compelled contribution” (union/association dues) cases
as guiding. How well do the Court’s “germaneness” and satisfying a
governmental “vital policy interest” criteria apply to student fees, as exported
from labor relations doctrine?

In holding that students’ political and ideological activities are
neither “germane” to a university’s function nor satisfy a “vital
policy interest,” the court essentially relied on two arguments. For one, they
observed that many student groups get by without any financial support whatsoever from the
student government; hence, how could the collection of fees be germane to the pursuit of
the university’s political and ideological interests? Second, while the court agrees
with the Regents’ argument that the presence of student groups on campus may serve an
educational purpose, they insisted that any such educational function is
“incidental” or “secondary” to the groups’ primary
function—that of pursuing their political ends.

The vacuousness of these arguments is apparent if we consider other aspects
of campus life not addressed by the objecting students, the Board of Regents, or the 7th
Circuit opinion. It’s no accident that the plaintiffs declined to challenge, for
instance, the activities of the student health center, the Distinguished Lecture Series,
or the student newspaper. (Oddly enough, unlike most universities, the two student papers
at Madison do not receive any direct funding from student fees, and are apparently able to
subsist on advertising revenues. Such non-fee supported papers might be changeable,
however, on the court’s grounds in their use of university facilities and equipment.)
Could counselors/sex educators at the health center, for example, discuss sexual
preference/orientation or reproductive choices in a way that could plausibly be said to be
completely devoid of any political/ideological content? If that were possible, how
valuable or effective could such “neutralized” counseling be? What possible
sense could it make to imagine a Distinguished Lecture Series on, say, monetary policy,
NAFTA, labor history, post-colonial Africa, etc., that did not support speakers who
express a political or ideological view?

Or consider a student newspaper. How could a paper not engage in political
speech and still be a newspaper? The case of a student paper is even more revealing in
that it generally directly models the democratic or at least representative functions of
resource-dispensing student government associations. While staff at most student papers
are self-selected rather than elected by the student body or representative association,
editorial decisions—including often the choice of editor—are typically made
democratically by the staff. There’s nothing which prevents students who object to
positions taken by their paper from themselves working within the paper to make the case
for their own views. Where the democratic processes may be half-baked in the running of
some student papers, the spirit of democracy is surely fully realized in the disbursement
of funds by elected student representatives, as at Wisconsin.

There is a not so artful dodge going on here, introduced by the objecting
students and compounded by the court. The words of a speaker funded by the Distinguished
Lecture Series or expressed in the editorial pages of a funded student paper may surely be
as charged with political and ideological content as, say, the view on the death penalty
taken by the campus Amnesty International affiliate. Officially the court declined to rule
on the constitutionality of the funding of guest lecturers, the student health center, and
the student paper by noting that these three were not specifically challenged by the

But there lies the rub, and what makes this court’s ruling exemplifies
the “narrowest common denominator” approach: First, lift a concept or two out of
existing judicial precedent at least bordering on the issues at hand (here
“germaneness” and “vital policy interest” exported from 40 years of
contest over union dues), preferably with some Supreme Court pedigree. Then try to squeeze
it, along with the many years of judicial restrictions and limitations, tailored to the
original area of case law, into the different issue before the court. Then, when it might
become clear it doesn’t really fit, defer to precedent and higher court doctrine,
disregard the substantial differences, and make the narrowest ruling possible—as in,
mimicking the 7th court’s opinion, “There’s little in existing court
doctrine regarding unions’ germane use of dues monies which would necessarily direct
us to enfranchise speech or political activities on a college campus supported by
compulsory student fees.”

In citing the tests of “germaneness” and “vital policy
interests” as applied strictly in labor law, the court sidesteps how those concepts
would take on new and different meanings in the context of the institution of the
university. If they had really wanted to ponder what’s a germane function of a public
university, or wherein its vital interests lie as a government institution, they might
well have reflected on the groups they conveniently excluded. There’s a further set
of reasons why that exclusion was convenient. When discussions of reproductive choices or
sexual counseling, for instance, take place in the context of the student health center
rather than at the campus Women’s Center (one of the groups whose funding was found
unconstitutional), they are “medicalized,” enjoying a status thought to be once
removed from politics or ideology. The words spoken by an invited Distinguished Lecturer,
in similar fashion, would surely be “germane” to the educational interests of
the university, which was precisely the argument made by the Board of Regents, but
rejected by the court, in behalf of the educational benefit of “robust debate”
and “shared governance” provided by the student groups in question.

Finally, I suspect the court would have found it very difficult to deny funds
to a student paper— had that been at question—not because it doesn’t engage
in “political and ideological” activity, but precisely because the political and
ideological activity a newspaper by definition engages in has such a venerated place in
American history and First Amendment jurisprudence. (Not incidentally the 4th and 5th
Circuit Courts have upheld the constitutionality of a university’s collecting
compulsory fees to fund student newspapers.) The different status accorded a health
center, a lecture series, a student newspaper—lamentably by default in this
case—should have alerted the court to the fact that any consideration of what’s
“germane” to a university’s mission ought to include those activities. The
more substantial question, then, that the court dodged: If speech (funded by fees)
represented in a newspaper or lecture series is “germane” to a university’s
function, can that constitutional speech be credibly distinguished from the speech of the
student groups in question?

If we carry the court’s reasoning to its logical conclusions, a whole
other can of worms opens up, one which further betrays the pretense of so artificially
separating the political from the non-political. Consider, for instance, a university
curriculum committee’s decision to mandate a “global awareness/diversity”
course, aimed at familiarizing students with a culture other than the U.S., as a degree
requirement. That is very much a “political” decision, just as much as it was
previously a political/ideological decision to exclude such a course from the curriculum.
Or a history department’s decision to include, or exclude, a course in labor or
women’s history as a requirement for a BA in the discipline, and so on. To the extent
that student tuition goes to fund faculty salaries, students underwrite (viz.,
“compulsorily fund”) activities—such as teaching—that are
implementations of political and ideological interests. (In a revealing aside the 7th
Circuit panel remarked that the Regents’ expressed interest in education might be
compromised, in that in “some courses students are likely taught the values of
individualism and dissent,” which values would then be undermined by the collection
of a compulsory fee. Since when are the notions of “individualism” and
“dissent” non-political concepts? What kind of individualism and what kind of
dissent are we talking about here?) The court would have us believe (publicly funded)
politics and ideology begin and end with the agendas of the “marginal” groups
whose speech they therefore find unconstitutional.

On August 20, 1998 the University of Wisconsin Regents voted to appeal the
decision to the full panel of the 7th Circuit Court. Keep your fingers crossed

Phil Cox has been a union organizer with UAW, and is currently teaching
philosophy at the University of Massachusetts at Dartmouth.