CHICAGO — Opposing lawyers representing the UW Board of Regents and a group of UW-Madison students faced off in a Chicago courtroom Tuesday, delivering oral arguments in the five-year-old Southworth v. UW Board of Regents case.
At issue was UW’s mandatory student fee system, which compels students to financially support all student organizations, including groups they may disagree with ideologically. As part of the case, the U.S. Supreme Court ruled last year that the system was constitutional as long as the fees were distributed in a viewpoint-neutral manner.
In March, U.S. District Judge John C. Shabaz ruled that the UW’s newly revised system fails to guarantee viewpoint-neutrality because the UW Board of Regents left too much discretion to students in distributing fees. Under the current system, a student government committee allocates student fees through a series of budget hearings.
“Differentials in funding amounts have no objective root, but reflect only the discretionary judgement of the student government,” Shabaz said.
At Tuesday’s hearing, the UW Board of Regents asked the 7th Circuit Court of Appeals to overturn Shabaz’s decision.
Wisconsin Department of Justice lawyers representing the Regents said UW’s student fee system should be assumed constitutional until a group of students are unfairly denied funding.
“Why should we attack a system where there is no example of a group seeking funding being denied funding?” asked Peter C. Anderson, UW’s lawyer. “It doesn’t make sense to strike down such a newly established position. It has to be a common-sense thing — you cannot legislate in advance for every possible permutation of how it’s going to go.”
The plaintiffs’ lawyer, Jordan Lorence, said there is no guarantee that conservative students like Scott Southworth would be treated fairly, and that the court should not wait for a clear-cut case of discrimination before ordering a remedy.
“I fear for the students of UW if this is given a chance because they have been given a blank check to do what they want,” Lorence said. “If the system is allowed to function as is, I predict the only groups that will be viewpoint-discriminated will be College Republicans and conservatives. Certain groups are skewed in an ideological direction, and it’s not conservative. Those supporting funding for [traditional liberal groups] will be seen as providing a service, not protecting their ideological allies.”
Tuesday’s panel included the same three judges that presided over the 1998 hearing, when Southworth contended that the collection of student fees was unconstitutional because the system forced students to support groups with which they ideologically disagreed. In that case, the judges sided unanimously with Southworth, but their decision was overturned by the Supreme Court last year.
Of the three judges, Judge William Joseph Bauer appeared to greet the plaintiffs’ arguments with a special skepticism; he scoffed at Lorence’s argument that the segregated-fee dispersal hampered freedom of speech on campus.
“I certainly was not aware that any college or university had any problem with students shooting their mouths off on any subject they want,” Bauer said.
Bauer said in the previous court, Shabaz had based his ruling on a hypothetical of “how the system might work,” but suggested that perhaps UW should actually give the newly amended method of fee dispersal a chance, posing the question of whether action would be premature at this point.
“Shouldn’t we wait until someone gets hurt and then do something about it?” he asked.
Regent lawyers felt optimistic leaving the courtroom where they lost three years ago.
“I think the court is viewing the issue carefully and thoughtfully and that’s as much as we can hope for,” Anderson said.
Southworth’s legal team was uncertain about how the court would rule. Lorence was especially irked by Bauer’s suggestion that Shabaz’s ruling may have been premature.
“I had a little bit of a rough time,” he said. “We need two of the three votes, but [one judge] seemed willing to let university systems operate. [This judge] was myopic in his understanding of how the system works.”
However, Southworth said he was optimistic UW’s segregated-fee system would eventually be overhauled.
“The judges expressed practical issues today with both us and [UW’s lawyers],” Southworth said. “If we don’t prevail here, this is certainly something we can take to the Supreme Court. If the UW doesn’t choose to make the [segregated-fee] system non-mandatory, or until they make reasonable standards, they’re going to continue to get sued.”
