CRS Report for Congress
Mandatory Student Fees and the First
Amendment: Background and Analysis of Issues
in Southworth v. Grebe
February 15, 2000
T.J. Halstead
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

This report discusses Southworth v. Grebe, where the Court of Appeals for the Seventh
Circuit held that a state university may not use mandatory student activity fees to support
student groups that engage in political or ideological advocacy. The Seventh Circuit’s
decision, predicated on First Amendment principles regarding compelled speech, conflicts with
precedent established in other circuit courts. Because of this conflict, the Supreme Court
granted certiorari in Southworth, with a decision expected this term. This report provides an
overview of the Seventh Circuit’s decision, with an emphasis on its relation to the dispositions
of other courts and established Supreme Court precedent.

Mandatory Student Fees and the First Amendment:
Background and Analysis of Issues in Southworth v. Grebe
The First Amendment to the Constitution of the United States provides that
“Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridge the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the government for a
redress of grievances.” The Supreme Court of the United States has established that
the First Amendment’s free speech guarantee contains, as necessary corollaries, the
right not to speak, and the right not to be compelled to support the speech of others.
Based on these principles, students of the University of Wisconsin filed suit against
the school’s Board of Regents, asserting that the use of objecting students’ mandatory
student activity fees to support political and ideological groups violated their First
Amendment rights of free speech, free exercise, and free association. This assertion
by the plaintiffs raised a conflict between the general principle that academic
institutions may provide a neutral, non-discriminatory forum for the expression of
diverse ideas and the maxim that individuals cannot be required to support political
or ideological viewpoints to which they are opposed.
In considering this conflict, the Court of Appeals for the Seventh Circuit looked
to Rosenberger v. Rector and Visitors of University of Virginia, where the Supreme
Court ruled that disbursement of student fees must be made on a viewpoint neutral
basis. While the Court did not address the issue of whether such fees were violative
of the First Amendment in Rosenberger, it did state that the analysis of the question
would be controlled by standards established in two of its earlier decisions, Keller v.
State Bar of California and Abood v. Detroit Board of Education. In those cases,
dealing with bar and teacher’s union dues respectively, the Court ruled that members
of such organizations could be required to fund activities which are germane to the
purpose for which the organization was established, but could not be compelled to
fund activities of a political or ideological nature.
Applying this germaneness standard to the academic context, the court of
appeals determined that the allocation of student fees to political and ideological
groups was unconstitutional. Specifically, the court explained that a university’s
interest in providing for diverse expression was not sufficiently germane to the
educational process to justify such forced funding. A key factor in the court’s decision
was its conclusion that the disbursements placed too great a burden on the First
Amendment rights of objecting students, effectively forcing them to subsidize speech
that was anathemic to their personal beliefs.
While the Seventh Circuit employed established precedent in its analysis, its
conclusion conflicts with the decisions of other courts. Because of this difference
among the circuit courts, the Supreme Court granted certiorari on the question of
whether such fee disbursements offend First Amendment principles. A decision in
Board of Regents v. Southworth is expected this term.

Case History...............................................1
Appellate Decision...........................................3
Abood, Keller and Lehnert: The Germaneness Analysis...........4
A. Germaneness.........................................5
B. Vital Policy Interests...................................6
C. Burdening Free Speech.................................7
Supreme Court Review.......................................9
A. Forum Creation and Compelled Speech Considerations.........9
B. Application of the Germaneness Standard..................10
Conclusion ................................................ 14

Mandatory Student Fees and the First
Amendment: Background and Analysis of Issues
in Southworth v. Grebe
Case History
In Southworth v. Grebe, a group of students brought suit against the University
of Wisconsin, arguing that the University was violating objecting students’ First
Amendment rights by using their mandatory activity fees to fund private organizations

engaging in political and ideological advocacy, activities, and speech.1 Specifically, the
objecting students argued that such funding violated their free speech and association
rights. 2
The controversy arose from the University of Wisconsin’s imposition of a
mandatory student fee, assessed at $165.75 for the 1995-96 academic year. As noted
by the Seventh Circuit, the fee is mandatory because a student’s ability to receive
grades or to graduate is contingent upon payment of the fee. Under Wisconsin state
law, both the Board of Regents and the students control funds generated by the fee,
with the Regents possessing ultimate authority in the approval or disapproval of
funding. In particular, the student fees are classified as either allocable or non-3
allocable, with the Regents having plenary control over the latter. The allocable
portion of the student fee, on the other hand, falls under the authority of the
Associated Students of Madison (ASM), which serves as the official representative
of the student body. These allocable funds support the ASM budget, as well as the
General Student Service Fund (GSSF). Both ASM and GSSF distribute the
mandatory student fees to private organizations. The GSSF funds are distributed to
registered student organizations, University departments and qualified community-
based service organizations.4 The ASM budget funds only Registered Student
Organizations, which are formalized, nonprofit groups controlled and directed by
students, and comprised primarily of student members.5 Registered Student
Organizations may also obtain funding through student referendums, where the
student body at large votes on an assessment for a particular student group.6 The
Wisconsin Student Public Interest Research Group (WISPIRG) received $49,500 in
student fees through the referendum process during the 1995-96 academic year.7
The Court of Appeals cited several organizations which it determined both8
received student fees and engaged in “political and ideological activities.” In

1Southworth v. Grebe, 151 F.3d 717, 718 (7th Cir. 1998).
2Id. at 718-719. 719. Although student government representatives review and make
recommendations regarding the use of nonallocable fees, the Regents ultimately control their
disposition. These fees “cover expenses such as debt service, fixed operating costs of auxiliary
operations, student health services, and the first and second year of the Recreational Sports
4Id. at 719. Approximately $974,200 was distributed in this manner during the 1995-96
academic year.
5Id. at 720. Registered Student Organizations may obtain funding to support operations,
related travel, or to sponsor events. Approximately $109,277 was distributed in this manner
during the 1995-96 academic year.
6Id. at 720.
7Id. at 720.
8Id. at 720. In particular, the court identified the following groups: “WISPIRG; the
Lesbian, Gay, Bisexual Campus Center; the Campus Women’s Center; the UW Greens; the
Madison AIDS Support Network; the International Socialist Organization; the Ten Percent

identifying these groups, the court gave several examples of their political advocacy.
WISPIRG, for instance, distributed $2,500 of the $49,500 it had received via student
referendum directly to U.S. PIRG “for use in lobbying Congress and developing
candidate-voter guides.” Additionally, WISPIRG published a voters’ guide ranking
congressional candidates according to their positions on certain issues.9 The UW
Greens and the Progressive Student Network “lobbied the Wisconsin state legislature,
and encouraged legislators to introduce three bills which would limit mining in the10
state.” The Progressive Student Network also focused on issues such as welfare
reform and “right-wing backlash on campus.”11 The International Socialist
Organization encouraged revolt and the overthrow of capitalism, and also
demonstrated outside a local church “to oppose the ideological views of a church12
speaker.” The Campus Women’s Center published a series of newsletters advocating
its political positions, such as an article “opposing the Informed Consent Bill, which
proposed certain regulations on abortions.”13 The Ten Percent Society advocated
“legislation authorizing same-sex marriages, while condemning attempts by the14
Wisconsin Legislature to ban them.” Finally, a student chapter of Amnesty
International publicly advocated “for the abolition of the death penalty.”15
Applying established Supreme Court precedent, discussed herein, the court ruled
that a university may not apply mandatory student activity fees to fund private
organizations that engage in “political and ideological activities, speech, and
advocacy.” 16
Appellate Decision
In analyzing the issue of whether state universities may compel objecting
students to fund private organizations that engage in political and ideological

8 (...continued)
Society; the Progressive Student Network; Amnesty International; United States Student
Association; Community Action on Latin America; La Colectiva Cultural de Aztlan; the
Militant Student Union of the University of Wisconsin; the Student Labor Action Coalition;
Student Solidarity; Students of National Organization of Women; MADPAC; and Madison
Treaty Rights Support Group.” Id.
9Id. at 720.
10Id. at 720. Both the Progressive Student Network and the UW Greens were funded by
student fees, with the latter receiving $6,905 during the 1995-96 academic year. Id. The UW
Greens also distributed political literature for the Green Party USA, and helped to organize
a march on the state capital in opposition to the “governor and the governor’s budget.” Id.
11Id. at 721.
12Id. at 720.
13Id. at 721. The Campus Women’s Center received $34,200 in student fees during the

1995-95 academic year. Id.

14Id. at 721.
15Id. at 721.
16Id. at 717.

advocacy, the court of appeals observed that “two necessary corollaries to the First
Amendment’s guarantee of free speech” are the right not to speak, and the right not
to be compelled to subsidize the speech of others.17 The Seventh Circuit noted that
the Supreme Court had not ruled whether these corollaries “protect objecting students
from being forced by state universities to subsidize private political and ideological
organizations.”18 However, the court did determine that the Supreme Court had
“provided guidance on the appropriate analysis for such a challenge” in Rosenberger19
v. Rector and Visitors of the University of Virginia.
In Rosenberger, a group of students who published a Christian newspaper were
denied funding by the University of Virginia. The students challenged the denial of
funding on the basis that the university had allocated student fees to nonreligious
student newspapers, thereby engaging in viewpoint discrimination. Upon review, the
Supreme Court determined that the disbursement of student activity fees to various
groups had created a forum of money that, once established, had to be made available
on a viewpoint neutral basis. Having made this determination, the Supreme Court held
that the university had violated the First Amendment by discriminating on the basis
of the religious viewpoint of the newspaper.20
While the Supreme Court did not rule directly on the issue of whether objecting
students could be forced to fund private organizations in Rosenberger, the Seventh
Circuit found that the Court had identified the proper analysis for such a challenge.21
In Rosenberger, citing Keller v. State Bar of California and Abood v. Detroit Board
of Education, the Supreme Court observed that “the fee is mandatory, and we do not
have before us the question whether an objecting student has the First Amendment
right to demand a pro rata return to the extent the fee is expended for speech to which
he or she does not subscribe.”22 Justice O’Connor, in concurrence, also stated that
“although the question is not presented here, I note the possibility that the student fee
is susceptible to a Free Speech Clause challenge by an objecting student that she
should not be compelled to pay for speech with which she disagrees,” again citing
Keller and Abood.23 In addition to the Supreme Court’s declaration, the Seventh
Circuit also noted that “every other circuit to have considered the constitutional uses
of mandatory student fees has applied the Abood and Keller analysis.”24 Accordingly,

17Id. at 722 (citing West Virginia State Board of Education v. Barnette, 319 U.S. 624,

642 (1943); Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977); Keller v. State Bar of Cal.,

496 U.S. 1 (1990)).

18Southworth, 151 F.3d at 722.
19Southworth, 151 F.3d at 722 (citing Rosenberger v. Rector and Visitors of the
University of Virginia, 515 U.S. 819 (1995)).
20Rosenberger, 515 U.S. at 845-56.
21Southworth, 151 F.3d at 722.
22Rosenberger, 515 U.S. at 840 (citing Keller v. State Bar of Cal., 496 U.S. at 15-16;
Abood v. Detroit Bd. of Educ., 431 U.S. at 235-36 ); see also, Southworth, 151 F.3d at 722.
23Rosenberger, 515 U.S. at 840; see also, Southworth, 151 F.3d at 722.
24Southworth, 151 F.3d at 723.

the court of appeals determined that the issue before them should be reviewed under
such authority.
Abood, Keller and Lehnert: The Germaneness Analysis. In Abood, the
Supreme Court considered whether non-union employees of the Detroit Board of
Education could be required to pay a service fee to the union as a result of an agency-
shop agreement regarding collective bargaining. The teachers argued that the
imposition of such a service fee violated their First Amendment rights of free speech
and free association. The Supreme Court determined that the service fee was
constitutional, as it was justified by “the legislative assessment of the important
contribution of the union shop to the system of labor relations established by
Congress.”25 The Court further explained that an individual could not withhold
financial support on the basis that he or she did not agree with the group’s strategy,
so long as the union was serving “to promote the cause which justified bringing the26
group together.” In essence, the Court determined that both union and non-union
teachers benefitted from collective bargaining practices, making it inequitable for non-
union teachers receiving such a benefit to refuse to pay the associated service fee. The
Court did stress, however, that union expenditures of a political or ideological nature
must “be financed from charges, dues, or assessments paid by employees who do not
object to advancing those ideas and who are not coerced into doing so against their27
In Keller, the Supreme Court considered a challenge by lawyers who objected
to the use of mandatory state bar dues to fund lobbying on social issues. In its analysis
of the issue, the Court clarified its holding in Abood, stating that a dissenting
individual’s dues could not be used for “ideological activities not ‘germane’ to the28
purpose which compelled association was justified.” Applying this maxim to Keller,
the Court determined that the compelled association and integrated bar were “justified
by the state’s interest in regulating the legal profession and improving the quality of
legal services.”29 Given this legitimate interest, the Court determined that the State
Bar may “constitutionally fund activities germane to those goals out of the mandatory
dues of all members.”30 However, the Court again stressed that the State Bar could
not “fund activities of an ideological nature which fall outside those areas of
activity.” 31
As the Seventh Circuit noted, the decisions in Abood and Keller have been
interpreted as establishing a “germaneness” analysis for the review of compelled

25Abood v. Detroit Bd. of Educ., 431 U.S. at 222.
26Id. at 223.
27Id. at 235-36.
28Keller v. State Bar of Cal., 496 U.S. at 13-14.
29 Id .
30 Id .
31 Id .

funding issues.32 As clarified in Keller, the “guiding standard must be whether the
challenged expenditures are necessarily or reasonably incurred for the purpose of
regulating the legal profession or ‘improving the quality of the legal service available33
to the people of the State.’” In addition to Abood and Keller, the Supreme Court has
employed the germaneness analysis in several cases, culminating in the approach
developed in Lehnert v. Ferris Faculty Association.34
In Lehnert, the Supreme Court again considered the constitutionality of union
expenditures, employing the germaneness analysis developed in Abood and Keller.
Conducting this analysis, the Court determined that a three-pronged test was the
proper avenue by which to determine whether union expenditures violated the First
Amendment rights of objecting employees. Specifically, the Court stated that such
expenditures must be “germane to collective bargaining; justified by the government’s
vital policy interest in labor peace and avoiding ‘free riders’; and not significantly add
to the burdening of free speech that is inherent in the allowance of an agency or union35
shop.” Having determined the appropriate analysis, the Seventh Circuit proceeded
to apply the test delineated in Lehnert.
A. Germaneness. In its consideration of the first prong, the court of appeals
stated that the University had to possess a legitimate governmental interest justifying
the compelled funding, and further demonstrate that such funding was germane to the
asserted interest. As the objecting students did not contend that the University lacked
a legitimate interest in compelled funding, the court limited its consideration to
whether the challenged activity was in fact germane to that interest.36
The University claimed that its interest in education supported the funding of
private organizations. Specifically, the Regents asserted that funding such groups
engaged in political and ideological speech was germane to the University’s37
educational interest, in that it would allow for “diverse expression.” The court of
appeals rejected this argument, stating that “germaneness cannot be read so broadly38
as to include forced funding of private political and ideological groups.” In reaching
this determination, the court of appeals compared the imposition of mandatory
student fees to the facts of earlier compelled funding cases. The court pointed to
Keller in particular, where the State Bar had asserted that its funding of lobbying on
nuclear weapons, abortion and prayer in public schools was justified by its purported
authority “to fund activities “in all matters pertaining to the advancement of the

32Southworth, 151 F.3d at 723-24.
33Keller, 496 U.S. at 14 (quoting Lathrop v. Donahue, 367 U.S. 820, 843 (1961)
(plurality opinion)).
34500 U.S. 507 (1991); see also, Southworth 151 F.3d at 724.
35Lehnert, 500 U.S. at 519.
36Southworth, 151 F.3d at 724.
37 Id .
38Id. at 725.

science of jurisprudence or to the improvement of the administration of justice.”39
Noting that the Supreme Court rejected such a rationale as overly broad in Keller, the
court of appeals in Southworth likewise rejected the University’s position.
B. Vital Policy Interests. Turning its attention to Lehnert’s second prong, the
court considered the University’s argument that it possessed a “vital interest in
education” and “in allowing students to share the governance of the University
system.”40 The court stated that “neither of these interests presents a vital interest in
compelling students to fund private organizations which engage in political and
ideological speech.”41 Specifically, the court determined that there was not a
“common cause” justifying compelled funding in the educational context. In Lehnert,
for instance, the Supreme Court stated that while there was no common cause
between union and non-union employees in supporting the union’s political activities,
all employees had an equal interest in the negotiation and administration of collective42
bargaining agreements. In Southworth, however, the court determined that, in the
compelled funding context, while there may be a common educational cause in shared
governance, there is no such link between private organizations that pursue political
and ideological agendas and objecting students. Accordingly, the court ruled that
there was “no vital policy interest supporting compelled funding of the private
associations.” 43
The University next argued that since private organizations were required to
permit open access to all students, “permitting objecting students to withhold funding
would result in a free-rider problem.”44 The court found this argument unconvincing
on several levels. First the court observed that the University’s own policy allowed
non-students to participate in registered student organizations, thereby negating its
ability to decry the impact of free-riders. Relatedly, the court pointed out that the vast
majority of student groups subject to the open access policy received no funds45
whatsoever. On a more substantive level, the court explained that whereas unions
are required to represent all employees equally, the private organizations under
consideration did not act in a representative capacity for the students and were not
under an obligation to represent the students fairly. Furthermore, the court found it
significant that “many of the ideological and political activities and speech” to which
the students objected occurred off-campus, limiting the benefit of these aspects to the

39Id. at 724 (quoting Keller, 496 U.S. at 15).
40Id. at 727.
41Id. at 727.
42Lehnert, 500 U.S. at 521.
43Southworth, 151 F.3d at 728. Also, the court of appeals opined that the school’s
avowed interest in furthering educational principles could actually be harmed by forcing
students to fund groups they find objectionable: “in some courses students are likely taught
the values of individualism and dissent. Yet despite the objecting students’ dissent they must
fund organizations promoting opposing views or they don’t graduate.” Id.
44Id. at 728.
45Id. at 728.

objecting students even further. Given these factors, the court concluded that free-
rider concerns were inapplicable to the mandatory student fee dynamic.46
C. Burdening Free Speech. Under the third prong of the Lehnert analysis, the
court was required to take several factors into consideration in determining whether
the mandatory student fees significantly added to the burdening of free speech
inherent in their imposition. First, the court considered whether the forced funding
imposed a significant burden on objecting students’ speech. Noting the conviction of
the objecting students’ philosophical and religious beliefs, the court determined that
forcing them to participate in the funding of groups with which they disagreed
regarding sensitive issues such as abortion and homosexuality did indeed constitute
a significant burden offensive to the First Amendment.47 In support of this
determination, the court quoted Madison’s admonition that “to compel a man to
furnish contributions and money for the propagation of opinions which he disbelieves48
is sinful and tyrannical.”
Next, the court addressed the University’s assertion that there was no evidence
that student activity fees had been used “to fund the actual political or ideological49
activities the organizations promoted.” Noting the Supreme Court’s determination
in Abood that merely limiting the use of the actual dollars collected from objecting
individuals was not an adequate remedy, the court of appeals stated that “whether or
not the student fees directly fund the political or ideological activities is irrelevant; the
First Amendment is offended by the Regents’ use of objecting students’ fees to
subsidize organizations which engage in political and ideological activities.”50 Further,
the court declared that the University could neither require objecting students to fund
such organizations, nor simply distribute objecting students’ funds to non-political
organizations and funnel non-objecting students’ fees to the political and ideological
organizations, resulting in the same overall allocation of funds. To do so, according
to the court, would nonetheless result in objecting students subsidizing the political
and ideological organizations. As the court explained: “dollars are fungible and51
splitting the same amount in two does not cure the obvious subsidy.”
The court then looked to the University’s argument that free speech concerns
were not implicated where the organizations did not purport to speak for the entire
student body. Rejecting this argument, the court explained that the First Amendment’s
free speech guarantee carries with it “the corresponding right not to be compelled to
fund private speech.” As such, the court held that the question of whether a third

46Id. at 728.
47Id. at 729.
48Id. At 730 (quoting Abood v. Detroit Bd. Of Educ., 431 U.S. 234-35 n.31 (quoting
Irving Bryant, James Madison: The Nationalist 354 (1948))).
49Southworth, 151 F.3d at 731.
50Id. at 732.
51Id. at 732.

party may or may not attribute “the organization’s political and ideological views to
the objecting student” was irrelevant.52
Regarding the University’s argument that students were free to work through the
democratic process to proscribe funding for groups to which they objected, the court
was similarly unimpressed. Specifically, the court declared that the “First Amendment
trumps the democratic process and protects the individual’s rights even when a53
majority of citizens wants to infringe upon them.”
Lastly, the court addressed the University’s assertion that it was authorized to
impose student fees for the funding of political and ideological organizations in the
same manner that Congress and the States are able to use public money to support
political parties and other ideological organizations. The court explained that the
student fee was not classifiable as such, since a mandatory activity fee is not a general
tax implemented to raise funds for a university. Quoting Rosenberger, the court
stressed that student activity funds do not represent government resources “derived
from tax revenue, sales of assets, or otherwise, but a fund that simply belongs to the
students.” 54
Based on all of these factors, the Court of Appeals for the Seventh Circuit held
that the University had failed to meet its burden under the Lehnert standard.
Specifically, the court explained that even if the funding of private political and
ideological organizations was germane to the educational mission of a university, the
forced funding by objecting students nonetheless constituted a significant burden to
free speech rights. As such, the court ruled that the University could not use “the
allocable portion of objecting students’ mandatory activity fees to fund organizations
which engage in political or ideological activities, advocacy, or speech.”55
Supreme Court Review
The Supreme Court granted certiorari in Southworth, limited to the question of
“whether the First Amendment is offended by a policy or program under which public
university students must pay mandatory fees that are used in part to support
organizations that engage in political speech.”56 Given the practical and constitutional
impact of the Seventh Circuit’s decision, it is evident that the Supreme Court’s
ultimate disposition of the issue will have significant implications in the First
Amendment and mandatory fee context.

52Id. at 732.
53Id. at 732. The court further noted that even if the objecting students participated fully
in the democratic process, they would not be able to de-fund organizations to which they were
opposed. Id. at 732, n.14.
54Id. at 732.
55Id. at 732-33.
56Board of Regents v. Southworth, 119 S.Ct. 1332 (1999).

A. Forum Creation and Compelled Speech Considerations. Of the several
issues which will figure into the Supreme Court’s consideration of Southworth, the
most basic will be the degree to which the Rosenberger decision applies to the
collection and distribution of mandatory student fees. As noted above,
Rosenberger established that a public university may not distribute student fees or
other financial resources to student organizations based upon the substantive content
of the group’s speech. Rather, the Court declared, once such a forum of money has
been established, funds must be distributed on a viewpoint neutral basis.57 In
addressing the Supreme Court’s decision, the Seventh Circuit determined that
Rosenberger pertained only to the disbursement of funds, and had no bearing on the
constitutionality “of forcing students to fund private political and ideological
organizations.” 58
On petition for rehearing, the dissent in Southworth argued that Rosenberger was
controlling, maintaining that student fees constitute a “compelled subsidy of a neutral
forum for speech.”59 In making this argument, the dissent analogized the student fee
to the compelled funding of neutral fora such as the Mall in Washington, D.C., “which
is used by countless speakers with a virtually infinite range of viewpoints.”60
Essentially, this argument characterizes the student fee dynamic as identical to the
forum access in Pruneyard Shopping Center v. Robins.61 There, the Supreme Court
ruled that the owner of a private shopping center could not deny individuals the
opportunity to advocate a message there, since the mall was open to the public, and62
the speech of the activists could not be attributed to the mall owners. Under this
rationale, the allocation of student fees could be said to create a forum open to all
student organizations, with little likelihood that the views of such groups will be
attributed to objecting students.
While this argument is facially appealing, it ignores the unique aspects of a
compelled student fee. Specifically, it would seem that the money compelled from the
students, as opposed to the subsequently created funding forum, is analogous to the
issues at play in Pruneyard. There, the Supreme Court found it significant that the
shopping mall owner had voluntarily granted public access. In the student fee context,
however, it cannot be said that objecting students have made their money available
to the groups which they oppose willingly. This factor seems to bring the student fee
dynamic in line with subsequent determinations by the Court that Pruneyard is

57Rosenberger, 515 U.S. at 835. Furthermore, the Court determined that even if funds
were limited, they must nonetheless be allocated according to “an acceptable neutral
principle,”as “the government cannot justify viewpoint discrimination among private speakers
on the economic fact of scarcity.” Id.
58Southworth, 151 F.3d at 722. The Court of Appeals for the Eighth Circuit has reached
the same conclusion that Rosenberger applies only to the distribution of student fees. Seeth
Curry v. Regents of the University of Minnesota, 167 F.3d 420, 422 n.4 (8 Cir. 1999).
59Southworth v. Grebe, 157 F.3d 1124, 1128 (Wood, J., dissenting).
60Id. at 1129.
61447 U.S. 74 (1980).
62Id. at 87.

inapplicable in instances where the property owner objects to the speech at issue.63
Furthermore, the argument that the student fee creates a metaphorical forum for the
expression of diverse viewpoints ignores the fact that the money, in essence, goes
directly to support private organizations. This fact further undermines the notion that
the allocation of student fees merely supports a neutral forum as argued by the
dissent. 64
In light of these factors, it seems that the Seventh Circuit correctly determined
that the Abood/Keller analysis was controlling, irrespective of the forum creation
arguments forwarded by the dissent. Indeed, it must be remembered that the Supreme
Court directed just such an analysis in the Rosenberger decision itself.65
B. Application of the Germaneness Standard. Given the inapplicability of the
Rosenberger decision, it seems that the primary factor in the mandatory fee analysis
will not be whether the Seventh Circuit erred in following the Abood and Keller line
of cases. Rather, the Court’s focus will likely center on the more substantive question
of whether the Abood and Keller germaneness analysis was correctly applied in the
academic context. In particular, it has been argued that the Seventh Circuit’s decision
“misapprehend[s] Supreme Court precedent” by analogizing the union fees of Abood
and the integrated bar fees at issue in Keller with the imposition of mandatory student66
The most significant aspect of this argument centers on the assertion that unlike
unions or integrated bars, university students pay “fees not to the challenged groups,
but to the student government which then uses the money to fund its own operations
and over 100 student groups, regardless of viewpoint.”67 As such, it is argued that the
speech of such groups is not attributable to objecting students, thereby nullifying any
First Amendment concerns regarding compelled speech.68 Indeed, it does seem that
a valid argument may be made that whereas Abood and Keller involved mandatory
contributions to an organization which unilaterally determined the speech at issue,
mandatory student fees are available to multiple groups, minimizing the burden on
free speech.69

63See Pacific Gas & Electric Co. v. Public Utilities Comm., 475 U.S. 1 (1986). There,
the Court stated: “notably absent from Pruneyard was any concern that access to this area
might affect the shopping center owner’s exercise of his own right to speak: the owner did not
even allege that he objected to the content of the pamphlets; nor was the access right content
based. Pruneyard thus does not undercut the proposition that forced associations that burden
protected speech are impermissible.” Id. at 12.
64See n.69 and accompanying text, infra.
65Rosenberger, 515 U.S. at 840.
66Southworth v. Grebe, 157 F.3d at 1125 (Rovner, J., dissenting).
67 Id .
68 Id .
69Id. at 1127.

However, while the funding of multiple groups by a neutral student government
may have the practical effect of preventing direct attribution to individual students,
it does not seem that this practice sufficiently alleviates the underlying constitutional
impingement. In particular, courts have rejected the notion that such attenuation in
the student fee context alleviates any constitutional infringement since the students
themselves are not required to directly convey or support a personally repugnant
message. In Carroll v. Blinken, for instance, the Court of Appeals for the Second
Circuit rejected the attenuation argument, noting that while major compelled speech
cases generally involved “citizens compelled actually to speak or carry a message,
nowhere did those opinions state or imply that compelled speech has only one modus
operandi.”70 Accordingly, the Second Circuit determined that the mere fact that the
student fee compelled speech through multiple groups “in no way heals the
constitutional infirmity” of such a practice. Rather, the court determined that the only
effect of the student fee was to require that “students fund more than one unwanted
view.” 71
Another assertion by student fee proponents in this context is that the activity
fees go to the student government which then makes funding decisions, as opposed
to being given directly to the student organizations. On petition for rehearing, the
dissent raised this argument, declaring that “the recipient of the funds in this case is
not itself engaging in the challenged speech.” Based on this premise, the dissent
argued that, under Rosenberger, such speech is not attributable to the student
government, which further means that the speech “necessarily cannot be attributed to72
the students paying the fees to the student government.” While this viewpoint
appears to validate the student fee dynamic, such a characterization seems to
misrepresent the nature of the transaction, and has been rejected by the courts.
Specifically, the courts have determined that the mere fact that a student government
serves as an intermediary between the students and the organizations is irrelevant, as
such funneling does not alter the substantive fact that a transfer has taken place.73
The factors noted above seem to establish both that the Abood and Keller
standard is applicable, and that the fees do indeed constitute compelled speech. As
such, it is likely that the Supreme Court’s disposition of Southworth will hinge on
whether the Seventh Circuit correctly concluded that mandatory student fees are not
sufficiently germane to a university’s educational mission so as to outweigh the
burden imposed on the First Amendment rights of objecting students.

70Carroll v. Blinken, 957 F.2d 991, 998 (2nd Cir. 1992).
71Id. at 998. The Court of Appeals for the Third Circuit reached the same conclusion
in Galda v. Rutgers, 772 F.2d 1060, 1067 (3rd Cir. 1985), stating “if the university compelled
a student to make separate contributions to both the Democratic and Republican National
Committees, the evil is not undone; it is compounded.”
72Southworth v. Grebe, 157 F.3d at 1125 (Rovner, J., dissenting).
73See Carroll v. Blinken, 957 F.2d 991, 997 (2nd Cir. 1992). In Carroll, the court stated
that simply because a portion of the “student activity fee is briefly in the hands of the student
association while being funneled from students to NYPIRG does not diminish the fact that a
transfer has taken place.” See also, Galda, 772 F.2d at 1067-68.

The Second Circuit reached a different conclusion regarding the germaneness of
mandatory student fees in Carroll. Specifically, the court considered a challenge by
students of the State University of New York (“SUNY”) contesting the distribution
of student fees to campus chapters of NYPIRG. The court identified several state
interests, including “the stimulation of robust campus debate on a variety of
functions”74 that it determined outweighed any impingement on First Amendment
principles. In reaching this conclusion, the court acknowledged both that compelled
speech concerns were at issue, and that the allocation of the student fees did indeed
encroach upon the constitutional rights of the objecting students.75 However, the
court held that SUNY’s goal to “stimulate uninhibited and vigorous discussion on
matters of campus and public concern,” among others, alleviated the constitutional76
While the Carroll court determined that student fees could be germane to a
university’s educational goals, it stressed that the off-campus activities of student
groups could not be funded. Specifically, the court noted that the use of student fees
to pay “non-student lobbyists, cover statewide administrative costs” and to finance
other university chapters stretched the “nexus between the extracted fee” and the
university’s educational interests “beyond what is constitutionally permissible.”77
Clarifying this standard, the court explained that students could be required to tolerate
“some compromise of their First Amendment” rights when the benefits of a varied
extracurricular life, hands-on civics training, and robust campus debate are all around
them to approvingly take part in, actively oppose, or merely witness dispassionately78
firsthand.” The court further explained that “these benefits vanish” when student
funds are spent outside the scope of campus related activities, noting that a
university’s educational interests, “however substantial, are, still, after all, those of the
university and its community, not that of an independent statewide organization.”79
Accordingly, the court ruled that students could not be compelled to fund such of
campus activity.
The Court of Appeals for the Ninth Circuit has also ruled that a university’s
educational mission may support the collection of mandatory student fees. In Rounds
v. Oregon, the court determined that the funding of an educational arm of Oregon
Student PIRG (“OSPIRG”) was germane to the educational mission of Oregon State
University, based upon the organization’s involvement in activities which the court
deemed were directly linked to the intellectual enrichment of the campus
environment.80 The court also went to great lengths to stress that it was not faced

74Carroll, 957 F.2d at 1001.
75Id. at 1001.
76Id. at 1001.
77Id. at 1002.
78Id. at 1002.
79Id. at 1002.
80166 F.3d 1032, 1039-40. Specifically, the court pointed to the fact that the educational
branch of OSPIRG in question was a non-partisan organization that provided students with

with the issues presented in Southworth, since the organization in question engaged
only in educational activities tailored to the university’s educational mission.
Nonetheless, the court did state that it disagreed with the Southworth decision, to the
extent that the Seventh Circuit’s holding established that “a public university may not
constitutionally establish and fund a limited public forum for the expression of diverse
viewpoints.”81 At the same time however, the Ninth Circuit stated that “it is of the
utmost significance that the organizational speech at issue occurs in an academic82
setting,” indicating agreement with the approach of the Second Circuit in Carroll.
From the factors noted above, it seems that the decisions in Carroll and
Rounds provide a reasonable basis for disagreement with the Seventh Circuit’s
decision in Southworth, to the extent that they establish that a university may use
student fees to fund groups which engage in educational activities that directly
augment the campus intellectual environment. However, it should be noted that the
Seventh Circuit’s broad rejection of mandatory student fee allocation is not without
precedent. In Smith v. University of California, the Supreme Court of California
considered an objection to the disbursement of funds to political or ideological
organizations.83 Striking down the allocations, the court declared that “a group’s
dedication to achieving its political or ideological goals, at some point, begins to
outweigh any legitimate claim it may have to be educating students on the university’s
behalf.”84 The court went on to declare that regulations permitting the funding of such
groups are not narrowly drawn to avoid impinging on the rights of objecting students,
especially since a university may achieve similar goals through course work and other85
less onerous methods.
Even if the Supreme Court determines that the Carroll approach is sufficient to
protect the First Amendment rights of objecting students, it is likely that the Seventh
Circuit’s decision will be upheld as it applies to student fees allocated through the
referendum process.86 Specifically, the Seventh Circuit’s decision finds support in
Galda v. Rutgers, where the Court of Appeals for the Third Circuit addressed a
challenge by students at Rutgers University who objected to a referendum allocation87
supporting NJPIRG. The court struck down the allocation, noting that while
organizations funded from a general fee “can be ‘perceived broadly as providing a

80 (...continued)
“hands-on experience in recognizing, researching, and solving the problems of society,” by
“sponsoring internships, conferences, workshops, research reports, and leadership training.”
Id. at 1039.
81Id. at 1040, n.5.
82Id. at 1038.
83844 P.2d 500 (Cal. 1993).
84Id. at 508.
85Id. at 508, 512.
86 Apart from the allocable funds distributed amongst various groups, the University of
Wisconsin also distributed $49,500 to WISPIRG through a student referendum. See
Southworth, 151 F.3d at 720.
87Galda, 772 F.2d at 1061.

‘forum’ for a diverse range of opinion,’” those that are funded from a dedicated fee
do “‘not provide a forum for the expression of differing views.’”88
This analysis applies to referendum allocations in Southworth, as well, as the
scenarios are essentially identical, and share a close nexus with the union and bar dues
rejected in Abood and Keller. Specifically, while the Supreme Court may determine
that the Carroll approach is proper given the university’s traditional role in fostering
a variety of viewpoints, such a justification fails “when an outside organization
independent of a university and dedicated to advancing one position, is entitled to
compelled contributions from those who are opposed.”89 As such, the Seventh
Circuit’s decision seems well entrenched as it regards the student referendum process.
In light of the factors noted above, it appears that the court of appeals correctly
assessed the constitutional burden imposed by the disbursement of mandatory student
activity fees. As such, arguments asserting that the court employed an improper
analytical framework in striking down the allocation of student fees to political and
ideological groups appear to be misplaced. Indeed, it seems evident that the Seventh
Circuit properly interpreted the Supreme Court’s decision in Rosenberger by applying
the Abood/Keller analysis as modified under Lehnert. At the same time, the Seventh
Circuit’s decision departs from precedent established in other student fee cases,
leaving open the possibility that the Supreme Court will reverse.

88Id. at 1064.
89Id. at 1067.