OPINION & EDITORIAL
Circuit court improperly affirms viewpoint-neutrality
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Also by Badger Herald Editorial Board:
- Madison's annual hip-hop conference falters (April 14, 2003)
- Dear Dave: Post this near your desk (April 17, 2003)
- Politicking destroyed opt-out's proponents (April 14, 2003)
- Don't Cut Historical Society Funds (April 29, 2003)
- Redirecting control (April 23, 2003)
Related Stories:
- Appealing Southworth (November 27, 2001)
- Time for an overhaul (November 27, 2001)
- Separate but viewpoint neutral (April 20, 2006)
- Southworth's loss is your gain (October 4, 2002)
- Do students care about seg fees? (November 27, 2001)
by Badger Herald Editorial Board
Wednesday, October 2, 2002
Tuesday, the Associated Students of Madison and UW claimed victory as the 7th Circuit Court of Appeals’ decision came down regarding the infamous segregated-fees case Fry v. the Board of Regents of the UW System. Fry, a cousin of the original Southworth v. Board of Regents case, stipulates that ASM’s current bylaws do not unconstitutionally give students “unbridled discretion in allocating student fees.” Thus, the current process by which SSFC operates is determined to be viewpoint-neutral.
We disagree with the court’s interpretation of ASM’s bylaws and the degree to which these bylaws guarantee decisions are carried out in a viewpoint-neutral manner.
First, some background. Scott Southworth, a student at UW in 1996, contended the segregated-fee process violated his First Amendment rights because he was forced to fund groups whose viewpoints he did not agree with. His original case stipulated that these funds were distributed in a viewpoint-neutral manner, and that stipulation was not removed until the case reached the Supreme Court. The Supreme Court ruled it is constitutionally acceptable for funds to be allocated as they are at UW as long as viewpoint-neutrality is maintained.
The question of viewpoint-neutrality was remanded down to lower courts. In the district court, Judge Shabaz ruled ASM’s new bylaws were not viewpoint-neutral; however, Tuesday’s circuit court ruling overturns that decision.
We have numerous problems with Tuesday’s ruling. First, the bylaws the court claims protect against “unbridled discretion” by ASM are thoroughly subjective; they are acceptable in theory but not in practice. Already this semester we have seen evidence of this. This semester, ASM has heard and approved eligibility cases for groups such as Safe Nighttime Services and denied groups such as DES — both of which turned in their forms late. Under bylaws, neither group should have received a hearing.
Second, the court lauds the fact that checks and balances exist within the system to double-check the students’ decisions. Currently, after going through ASM’s judicial process, students can appeal any rulings first to the chancellor and then to the Board of Regents. Yet, when the Herald editorial board met with UW-Madison chancellor John Wiley last semester, his view on the matter was this: “Students have primary authority over allocable seg fees, and there’s a process put in place. The process doesn’t say the students will recommend something to the chancellor and the chancellor will second-guess them and change it.”
In a process of checks and balances, such “second-guessing” is absolutely necessary. After Wiley spoke with us, he eventually demanded an across-the-board cut of $140,000 to last year’s total budget of $2.8 million — hardly the amount the budget was inflated by last year.
Without objective standards to determine who does or does not get funding, what constitutes viewpoint-neutrality is up to the individual — and individuals are going to disagree. A perfect example is the Student Judiciary decision also released Tuesday regarding the denied eligibility of MEChA. Student Judiciary determined SSFC’s decision was not made in a viewpoint-neutral manner. Yet, the SSFC members that made the votes claim they acted properly. Such a system places one set of interests against another, one set of values against another and, ultimately, one viewpoint against another.
To reconcile these issues, the regents and ASM should institute an “opt-out” system for segregated fees where students can choose which groups they want to fund. ASM should not resist the idea of an opt-out system merely because it would take a lot of work to institute. They need to at least look into the idea.
Tuesday’s ruling is not the end of this matter; it will continue, through either another appeal of the case to the Supreme Court or a separate filing by a new student.
An opt-out system based entirely on arithmetic would solve all of these problems, as viewpoint can play no part on a balance sheet.
Tuesday’s court ruling is based on bylaws that look good on paper but do not work in practice. We are hopeful the Supreme Court will rehear this case and overturn Tuesday’s decision. But the better solution would be for student government to end the headaches and implement an opt-out system for allocable segregated fees. To do so would put an end to all questions of viewpoint-neutrality.
