Board of Regents of the University of Wisconsin System v. Southworth

Board of Regents of the University of Wisconsin System v. Southworth Board of Regents of the University of Wisconsin System v. Southworth (2000) is a U.S. Supreme Court case that addresses funding of student groups by a public university. Specifically, according to Southworth, if officials at state institutions of higher learning allocate funds in a viewpointneutral manner, they may impose mandatory student fees and distribute those fees to student organizations. Because Southworth validates the common practice of administrators at most public institutions of higher learning while providing guidance for compliance with the Constitution, this entry reviews its background and the Court’s rationale.

Facts of the Case

Southworth arose as a constitutional challenge to the method of financing student organizations in the University of Wisconsin system. Wisconsin imposes a mandatory student fee, a portion of which officials use to fund student activities, including various political and ideological groups. Some of the students objected to this practice, because they feared that they were being forced to subsidize the promotion of controversial viewpoints with which they disagreed. In particular, the students claimed that the First Amendment precluded such forced subsidization. Outside the context of higher education, particularly in disputes concerning labor unions in education, the Court has ruled that individuals may not be compelled to support political and ideological positions with which they disagree. The students sought to extend the same principle to higher education. 

A federal trial court, in an unpublished order, agreed with the students, but a sharply divided Seventh Circuit rejected their claim. The Seventh Circuit was of the opinion that because providing funding to private organizations that engaged in political activities, speech, and advocacy violated the free speech rights of the objecting students, and the injunctive relief that the trial court’s order was inadequate, further proceedings were necessary. In light of the conflict between the federal trial court and the Seventh Circuit, the Supreme Court agreed to hear an appeal. 

The Supreme Court’s Ruling

On further review, a unanimous Supreme Court, in a judgment authored by Justice Kennedy, reversed and remanded in favor of university officials. The justices agreed that as long as the fee allocation system was viewpoint-neutral, meaning that funds were distributed in a manner that did not favor one group over another, officials at state colleges and universities could impose mandatory student fees and use the proceeds to fund student organizations. 

At the outset of its analysis, the Supreme Court noted that the speech of the challenged student organizations was not the speech of the university or the government. Rather, the Court observed that the speech at issue was that of private organizations. As such, the Court viewed the question as to whether students could be forced to subsidize the speech of private organizations with which they disagreed. 

The Supreme Court pointed out that under its own precedent, the students could not have been forced to subsidize speech that was not germane to the purpose for which they were being taxed. The Court rejected the extension of that rule to the context of higher education. In this way, the Court recognized that university officials had the authority to evaluate whether the institution’s mission was well served if students had the means to engage in dynamic discussions of philosophical, religious, scientific, social, and political subjects in their extracurricular campus life outside of lecture halls. 

At the same time, the Supreme Court emphasized that university officials did not have absolute discretion with regard to the use of the funds that they collected. The Court explained that university officials had to continue to provide some protection to the First Amendment interests of their students. The Court posited that officials could have met this responsibility by using viewpoint neutrality in the allocation of funding support just as it had ordered in Rosenberger v. Rector and Visitors of the University of Virginia (1995), wherein it directed officials to pay for the costs of printing a publication of a religious group on campus, because their failure to do so would have been impermissible viewpoint discrimination. Insofar as the parties had stipulated that the University of Wisconsin’s financing system was viewpointneutral, meaning that they agreed to this at an earlier phase in the litigation, the Court found that the overall system was constitutional. 

In rounding out its judgment, the Supreme Court remained troubled by one aspect of the funding system that was employed in the state university system. The Court acknowledged that in some instances the student body could vote in a referendum to deny funds to particular organizations. However, because the judicial record had not yet developed on this issue, the Court remanded the dispute for a further consideration as to whether such a system was viewpoint-neutral.

Justice Souter, joined by Justice Stevens and Justice Breyer, concurred in the judgment. Even so, these justices disagreed to the extent that they would not have imposed the requirement of viewpoint neutrality. Rather, these justices would have concluded that the interests of the objecting students were not sufficient to overcome the university’s interests.

Almost a decade after it was resolved, Southworth remains the cornerstone of the Supreme Court’s jurisprudence on funding student organizations. Its basic holding, that officials at public colleges and universities may impose mandatory student fees as long as they distribute the proceeds in a viewpointneutral manner, is largely uncontroversial. Still, because there is much dispute as to what is viewpoint-neutral, it can be expected that litigation will continue to emerge on this topic.

William E. Thro

See also Free Speech and Expression Rights of Students

Further Readings

  • Wood, R. C., & Schilling, A. J. (2000). The legal dilemma created by mandatory student activity fees: The Supreme Court offers a resolution in Wisconsin v. Southworth. Education Law Reporter, 147, 413–428.

Legal Citations

  • Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000), on remand, 221 F.3d 1339 (7th Cir. 2000), on remand, 132 F. Supp. 2d 740 (W.D. Wis. 2000), 132 F. Supp. 2d 744 (W.D. Wis. 2000), aff’d in part, rev’d in part, 307 F.3d 566 (7th Cir. 2002).
  • Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819 (1995).