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Last Wednesday, FIREput out a press release
dealing with the University of Wisconsin–Eau
Claire’s Student
Senate legislation that bans funding for any student-organized activity that
promotes a “particular ideological, religious, or partisan viewpoint.” The next
day, a letter from
the University
of Wisconsin’s
Office of General Counsel arrived in ������ýapp�ٷ�’s mail stating, in part, that

the legislation you discuss in
your letter [read ������ýapp�ٷ�’s letter here] is not yet in effect, pending review by
my office. We will work with the campus and the student government to provide
any guidance necessary to assure that their segregated student fee policies are
consistent with Board of Regents v. Southworth, 529 U.S. 217 (2000) and
other relevant law.

Therefore, it appears that there’s a hope that the general
counsel’s office will overrule the student senate’s patently unconstitutional
regulation. As FIREhas said many times, students should not be penalized
simply because their beliefs are political or religious in nature rather than
apolitical or secular. There is nothing inherently less noble or worthy about
organizing around politics or religion as opposed to, say, a love of golf or of
Quentin Tarantino movies. Perhaps funding the latter two types of clubs is less
controversial than funding the former two types of clubs, but the U.S.
Constitution, thankfully, doesn’t make a lack of controversy a requirement for
expression.

FIRE has received a number of emails from people who disagree with our
involvement here, many of them making basically the same point about this case,
which is that they don’t think that students should be forced to have their
mandatory fees go to clubs with which they don’t agree. Good point—­in fact, I
agree. However, the U.S. Supreme Court has determined (in the 2000 case of Board
of Regents of the University of Wisconsin System v. Southworth—yes, that’s
right, the very same University of Wisconsin!) that the mandatory student-fee
system is constitutional at state universities provided that the program
is viewpoint neutral, ­which UWEC’s student senate amendment is
emphatically not, as it discriminates against “political, religious, and
ideological” viewpoints.

It is vital to realize that determining what viewpoints are
truly political, religious, or ideological is in itself a content-based process
that will inevitably lead to viewpoint discrimination. Even a golf club that
advocates the creation of a new municipal golf course could plausibly be
accused of having an “ideological” viewpoint on city development, zoning, or
even environmental issues. It is for this reason that viewpoint neutrality is
so important—do we really want misinformed or uninformed student government
representatives making those kinds of decisions? Even if students do their best
to keep their own prejudices out of their decisions, the best that can
plausibly be achieved will be an arbitrary and therefore unjust system. Indeed,
it’s far more likely that student government representatives with this kind of
power would abandon viewpoint neutrality altogether and fund only groups made
up of their political allies, their coreligionists, or other like-minded
people.

Now, do I think that the student-fee system at most
universities is, in reality, viewpoint neutral? Of course not­. Anecdotal
evidence, at least, suggests that it’s horrendously biased. But this is an argument
against the system itself, which, like it or not, is going to be around for
some time. I suspect that if and when universities really do begin to start
making viewpoint neutral decisions, the mandatory student-fee system will
quickly fall out of favor as administrators shy away from funding
“disagreeable” clubs at the same level to which they fund their own pet
organizations. Time will certainly tell.