High court sifts rulings on conflict of rights

Justices take up case on use of student fees

November 10, 1999|By Lyle Denniston | Lyle Denniston,Sun national staff

WASHINGTON -- Caught in the conflicting currents of its past rulings on free speech, the Supreme Court groped uncertainly yesterday to find a way to rule on a major new dispute over university students' rights.

At issue is a claim by University of Wisconsin students that the First Amendment protects them from having to subsidize, through mandatory activity fees, student organizations whose views they oppose.

At the end of a one-hour hearing yesterday, the justices appeared to be no nearer to agreeing on a response to that claim. The justices tried to sort out, as possible guides to a decision on the Wisconsin case, a variety of positions the court has taken previously:

* The government cannot force people to support views or policies they do not share.

* Universities have broad freedom to decide how to expose students to a range of ideas and theories.

* Public forums set up by the government for the expression of views cannot be closed to those whose views are unpopular or out of the mainstream.

* If a university funds some student organizations' expression, it cannot refuse to aid others simply because the positions they take are controversial.

Any one of those might have a bearing on the fate of the opposition that conservative Wisconsin students mounted to activity fee subsidies for such organizations as the Campus Women's Center; the UW Greens; the Lesbian, Gay, Bisexual Campus Center; the International Socialist Organization; Amnesty International and the Madison AIDS Support Network.

A federal appeals court in Chicago ruled last year that it violates the opposing students' First Amendment rights to use part of their activity fees to fund such groups.

Students at the university's main campus in Madison must pay an activity fee of $166.75 a semester, and $32.70 of that amount is distributed to student groups that get approval from campus governing bodies.

Typical of the justices' uncertain reaction to the appeals court's ruling were comments by Justice Anthony M. Kennedy, a centrist member of the court whose vote could be decisive.

At one point, when a lawyer for the university said all of the subsidies to student groups at issue could be justified as "services to the students" and not as just spreading those groups' ideological viewpoints, Kennedy said, "I can't buy that argument."

He also said it would be called "a service to students" if a group of communist-oriented students captured control of the student newspaper.

After a lawyer for the challenging students attacked the compelled subsidies, Kennedy retorted that "it is part of the life of a university to have differing viewpoints and wide-ranging debate," yet the students were asking the court to rule against that tradition.

Chief Justice William H. Rehnquist and Justice Antonin Scalia emerged as the strongest critics of the Wisconsin activity fee. Scalia's hostility became vivid after the university lawyer said a student chapter of the Ku Klux Klan could qualify for the subsidies.

The hearing generally provided few clues to which way the court leans on the issue, but the justices seemed troubled by one aspect of the Wisconsin subsidy program.

A student body referendum can be held to let students vote on whether to provide a guaranteed subsidy to a student organization. In 1995, a group that promotes environmental protection and other liberal causes, Wisconsin Student Public Interest Research Group, was voted $49,500.

That part of the program differs significantly from the remainder, in which student organizations apply for subsidies on a competing basis. The only kind of activity that is not permitted support from fees is partisan political action or lobbying of legislatures.

Maryland is one of 15 states to join Wisconsin in the case. A final ruling is expected by summer.

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