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The following selection is excerpted from ������ýapp�ٷ�’s Guide to Student Fees, Funding, and Legal Equality on Campus.

FIRE on many campuses understand that the fees they must pay are often used to fund groups that advocate a wide array of beliefs and causes. Most campuses have some combination of groups composed of evangelical Christians; gay, lesbian, bisexual, and transgender students; environmentalists; Latin mass Catholics; vegetarians; Muslims; atheists; feminists; anarchists; communists; or conservatives (in addition, indeed, to bagpipers and chess players).

Many students ask, “How can the school force me, as a condition of my getting an education here, to fund groups with which I don’t agree?” 

Starting in the 1970s, students at public colleges and universities have brought numerous lawsuits that asserted, on First Amendment grounds, the right of individual students to opt out of having to fund groups they find objectionable. The results of such suits are finally becoming clear.

Viewpoint neutrality: The crucial legal concept in assessing mandatory fees at public colleges and universities

In two major cases, the Supreme Court of the United States has ruled that “viewpoint neutrality” governs both the distribution of student fees and the question of whether students may opt out of paying a mandatory fee. In the first case, Rosenberger v. Rectors of the University of Virginia (1995), the Court ruled that the University of Virginia violated the free speech rights of the student journalists producing a Christian campus newspaper when it denied that paper funding because of its “religious” views. In the second case, Board of Regents of the University of Wisconsin System v. Southworth (2000), the Court ruled that individual students have the right not to pay fees that fund groups they find objectionable only if the university distributed money in a “viewpoint discriminatory” manner. 

In both these cases, Rosenberger and Southworth, the Court identified a vital constitutional principle that always must decide student fee disputes at public colleges and universities: viewpoint neutrality that stands opposed to its opposite, viewpoint discrimination.

FIRE may opt out of funding an objectionable group only if the state university does not distribute its money in a viewpoint neutral manner.

Viewpoint neutrality is a well-known concept in First Amendment law. It stands for the idea that when government actions implicate the speech rights of groups and individuals, those actions must be done in an even-handed way. They may not discriminate based on the message advocated. Thus, a city has the power to prohibit all speakers from using bullhorns to amplify their speeches on public streets at three o’clock in the morning. If the city allows Republicans to make such speeches at that hour, however, it may not forbid Democrats from doing so too. 

Such “viewpoint discrimination” would be a deviation from the constitutional requirement of viewpoint neutrality. “Viewpoint discrimination” occurs when the government uses its power to advance one person’s opinion over another’s in such matters as religion, politics, and belief.

Rosenberger and Southworth establish the principle that a state university or college must distribute funds collected by mandatory student fees in a viewpoint neutral manner. State universities and colleges violate the right of free expression guaranteed by the First Amendment if they deny funding to a group because of the viewpoint it advocates, or if they require students to pay into a system whose official policies prohibit religious or political groups from receiving school funding. If a state university or college forbids its officials or agents from considering a group’s viewpoint when deciding whether to fund it, then the school may require all students to pay fees. 

Together, the rulings show clearly that (1) any student organization at a state school that is denied funding because of its views can sue claiming viewpoint discrimination; and (2) students may opt out of funding an objectionable group only if the state university does not distribute its money in a viewpoint neutral manner.

‘Unbridled discretion’and viewpoint neutrality

Courts increasingly interpret the obligation of viewpoint neutrality to require state colleges and universities to do two things to ensure they do not act unconstitutionally. 

First, they must set forth clear, objective, and nonideological standards that all applicants must meet to receive funding. Without such standards, recent court decisions have held, colleges and universities may not compel all students to contribute funds that are disbursed to student groups. That was the holding of the U.S. Court of Appeals for the Seventh Circuit, in its potentially pathbreaking decision in Southworth v. Board of Regents of the University of Wisconsin System (2002), when it applied the Supreme Court’s 2000 decision to the facts of the case at the University of Wisconsin. Vague standards are unconstitutional, the court held, because they would enable the government to make decisions about whether to fund student groups according to the ideological, political, religious, or other preferences of the government officials. In this case, “the government” is university officials or their agents (such as student governments or committees). 

FIRE's Guide to Student Fees, Funding, and Legal Equality on Campus

This FIREguide explains the significance of student activity fees and their relationship with free expression and campus equality.

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The Supreme Court has a wonderful term for this unconstitutional practice of governing people by vague rules: “unbridled discretion.” If a state college or university uses such arbitrary power and procedures to distribute money, then it cannot constitutionally require students to pay the fee. 

There are several safeguards against the danger of forbidden “unbridled discretion.” A public campus, in distributing student fees, must state and follow a clear policy that prohibits making funding decisions on the basis of a group’s viewpoint. It must require student government (or other) officials to give written reasons why they are denying funds. It must provide a fair and effective appeals process for those denied funding. Crucially, it must state nonideological standards that spell out very clearly what qualifications an applicant must meet to receive funding. 

Specific funding schemes may require additional safeguards to protect both student applicants and student contributors from funding based on the decision-makers’ “unbridled discretion.” Such safeguards might include objective standards that remove discretion from student government leaders, requirements to put in writing the specific reasons for denying funding to a group, a right of appeal to nonstudent and impartial administrators, and similar barriers against arbitrary action.

Fees and funding at private colleges and universities

Private universities and colleges stand in a different relation to the Constitution than governmental institutions such as public universities and colleges. The Constitution limits only government action. Because a private college or university is not a governmental entity, it does not have to obey the First Amendment. Voluntary associations in private society are a vital part of American freedom. The fact that a private institution is not bound by the Constitution, however, does not mean that it is not bound by the rule of law. 

The First Amendment’s right of association protects the right of those private schools to promote their specific ideological or religious beliefs. 

Many private schools choose by their own formal and advertised policies to hold themselves to certain standards regarding freedom of speech, due process, diversity of opinion, academic freedom, and the protection of individual conscience. A private school that claims to adhere to such policies may be required under state laws that apply to contract or fraud to live up to its own internal standards — in this case, the protection of freedom of speech. Such policies might compel a private college or university to distribute student fees in a viewpoint neutral manner or prevent it from ordering a controversial student group to disband because the school objects to the views expressed by the group. The law does not permit breach of contract or fraud. This model might apply to private universities and colleges that promote no distinct ideological or religious belief system, or, above all, that promise certain standards of nondiscrimination, legal equality, and academic freedom. An institution that induces students to attend by promising legal equality, variety of viewpoints, and nondiscrimination may not break those promises with impunity.

By contrast, if a private college or university is organized around a specific set of ideological or political beliefs, then the First Amendment protects its right to require students to fund speech that promotes the beliefs of the institution. FIREattending a private school established around a clear system of belief have no legal right to demand that the school allow dissenters to express conflicting views on campus. 

The First Amendment’s right of association protects the right of those private schools to promote their specific ideological or religious beliefs. A private college or university may not in good faith present itself as a secular liberal arts institution that guarantees a student’s right to free expression but then, in practice, further a particular ideological or religious agenda by funding only organizations that promote that agenda. Such a practice would arguably violate the contractual obligation that the institution has undertaken to the student to whom it has promised a liberal arts education in a setting in which the free marketplace of ideas prevails. 

To learn more about your rights, read ������ýapp�ٷ�’s Guide to Student Fees, Funding, and Legal Equality on Campus.