First appeared Nov. 17, 1999, in the Chicago Free Press.
ON NOV. 9, THE U.S. SUPREME COURT heard oral arguments on University of Wisconsin vs. Southworth, a case brought by a group of university students who object to the use of mandatory student fees to subsidize some campus organizations.
Specifically, the students are evangelical Christians who object to the use of their money to support 18 student groups, including Campus Women's Center, the University of Wisconsin Greens, the International Socialist Organization, the Militant Students Union and a Native American advocacy group.
The case is interesting to us because the students also object to their money going to the Madison AIDS Support Group, the Lesbian, Gay and Bisexual Campus Center, and the 10 Percent Society, a gay group.
The students say they are being deprived of their free speech rights. The university, they claim, compels them to "speak" against their own views by using their money to support advocacy groups whose opinions and goals they disagree with.
It is natural for gays and lesbians to want to support the targeted gay student groups. But you do not need to be, as I am not, either Christian, or conservative, or religious at all to think the students have a pretty good argument. Sometimes when unappealing people defend their own freedom they end up defending freedom for all of us.
No one, of course, seriously believes the protesting students are being deprived of free speech. No one, certainly not the university, has prevented the students from expressing their views.
But the university did use the students' money to support speech and advocacy efforts the students disagreed with. That seems wrong. To see why, consider a hypothetical fact situation.
Imagine you as a gay person go off to Old Sarsaparilla University where you discover to your dismay that part of your student fees support the Pro-Family League, Ex-Gay Student Union, Friends of the Nuclear Family, Student Promise Keepers, the Creationist Society and the Fundamentalist Journal.
These groups use your money to make posters they place around campus, to bring speakers to the school, to print anti-gay pamphlets they pass out at the student center, to distribute "free" magazines your money helped print and buy ads promoting their views in the student newspaper.
If you do nothing and say nothing, you are de facto helping the other side. This does look like "forced speech." If you decide to express your own view, you find you are arguing against speech your own money is paying for. Let them use their own damn money, you might think.
The University of Wisconsin did a good deal of huffing and puffing about how free speech and open debate are part of university life and how the mandatory subsidy system encourages the expression of unfamiliar or unpopular views. But this argument has several serious infirmities.
No one is trying to hamper or chill free debate. If subsidies to student groups are terminated, every student and teacher remains free to speak his mind and advocate whatever he wants.
Wisconsin assistant Attorney General Susan Ullman told the court the university wants to promote an open forum and further the First Amendment rights of all students by encouraging groups to express their views.
But first off, someone needs to remind Ullman that if exposing students to diverse viewpoints is the goal, that is the reason universities have professors and classes. Professors are supposed to know more about all those various ideas, their origin, history, development-and defects. In fact, most professors can provide better arguments for positions they do not believe than most student activists can for what they do believe. It is called being educated.
In any case, the "open forum" the university seeks to promote will happen of its own accord. It is worth remembering that the First Amendment is purely negative. It is predicated on the idea that people will spontaneously express their views if they are not blocked by government. The First Amendment subsidizes no one.
Nor would the absence of subsidies prevent students from forming clubs to advocate their views: Students do it now without subsidies. The majority (70 percent) of student groups at the University of receive no school subsidy. They manage to support themselves with dues and other sources of income.
The university claims that decisions about what groups to support are made "by the students themselves" - i.e., by a committee elected by students. But that means that some students decide what other students are going to hear and pay for.
And if a committee elected by a majority disburses money by a majority vote, that system seems likely to promote views that are fashionable or popular, rather than ones that are unfashionable or unpopular. But popular viewpoints hardly need subsidizing.
If the goal truly is to let students determine where their money goes, why does a committee have to make one decision for everybody? Why not let students decide individually on their own? Let them keep their money and contribute to any organization they want. Or join a club and pay its dues. Or do something entirely different with the money. A few might even buy a book.
Nor can the university defend its system on the basis of encouraging all viewpoints. Subsidies to partisan political groups are forbidden. Yet as Justice David Souter pointed out during oral argument, protecting overtly political speech is the "core value" of the First Amendment. So in the paradigm case, the university fails to achieve its ostensible goal. In fact, it explicitly rejects it.
So it appears that the protesting students have a fairly good case, and the University of Wisconsin offers a remarkably poor defense of its policy, riddled with inconsistencies and contradictions.