MADISON, Wis. The University of Wisconsin system's method for distributing mandatory student fees is still not constitutional, despite its attempts to safeguard against students withholding funding from groups because of their viewpoints, a federal judge ruled.
U.S. District Judge John C. Shabaz last year ordered the university to devise a new method for distributing the mandatory student fees to campus groups, ruling that the schools gave student leaders too much discretion in deciding which organizations received money.
The university's 13 campuses collect a portion of mandatory student fees to fund student organizations. The student government decides who gets the money and how much, though each campus chancellor has the authority to veto decisions.
In his March 15 ruling, Shabaz wrote that the system had failed to meet the constitutional requirements he laid out.
Attorney Jordan Lorence, who represented the students challenging the system, said on March 16, "We think the university has created its own problem by insisting that students are required to pay the fee and that the student government has broad discretion to allocate it."
"That's just a recipe for unconstitutional favoritism, I think."
The university said it would appeal the decision to the 7th U.S. Circuit Court of Appeals.
The lawsuit originated in April 1996 as a challenge to the mandatory fees, which the U.S. Supreme Court upheld last March. But the court sent part of the case back to the lower court in Madison, where Shabaz agreed to hear arguments over the university's distribution method. When the lawsuit was originally filed, the students challenging the system sought an option to withhold their portion of the mandatory fees from groups whose viewpoints they object to.
Shabaz did not detail a constitutional distribution system in his decision, but he said it was not difficult to create a viewpoint-neutral allocation system.
"The complications in this case relate to the defendant's pursuit not only of its commitment to fund diverse student speech but its competing commitment to empower student government to be the arbiter of that funding," Shabaz wrote.
Assistant Attorney General Pete Anderson said Shabaz had never specified a distribution method he would find constitutional, nor have the students who challenged the system.
"The one thing this decision seems to suggest is if we had someone other than student government making decisions, that would solve the problem," he said.
In an attempt to comply with Shabaz's ruling, University of Wisconsin student governments developed criteria for giving money to student groups, including an appeals process and requirements to provide, if requested, a written explanation of why an applicant was denied funding.
As part of his ruling, Shabaz barred the university from collecting from those students that portion of their student fees. The school estimated that amounts to about $10 from each of the three students in the lawsuit.
Lorence said the university could settle the matter by instituting an opt-out provision or by creating minimum standards that groups can meet for funding regardless of viewpoint.
"The university says what it wants to promote is diverse speech, and that would promote diverse speech," Lorence said. "When you inject discretion into the system, I think it raises the specter that disfavored groups are not going to get funded."