Student Activity Fees and Free Speech

Most colleges and universities charge their students a mandatory activity fee, which is then used to support various student organizations and events. In Rosenberger v. Rector & Visitors of University of Virginia (1995), the U.S. Supreme Court held that the University of Virginia’s student activity fee fund constituted a type of ‘‘metaphysical’’ public forum that had been created to encourage diverse extracurricular expression. Having produced this forum, the university was bound by the First Amendment to distribute the funds within it without preferring one viewpoint to another. By funding all student publications except those that were overtly religious, the university in that case was found to have committed unconstitutional Viewpoint Discrimination.

When student activity fees are allocated in a viewpoint- neutral manner, dissenting students at public institutions have no First Amendment right to a rebate of the amount of their fees spent to finance speech they find objectionable. This was the Court’s holding in Board of Regents of the University of Wisconsin System v. Southworth (2000), where some conservative students had complained that the University of Wisconsin’s fee system forced them to support student organizations with which they disagreed. The Court ruled that those fee monies distributed by the student government association had been allocated in a viewpoint-neutral manner, and, therefore, that the dissenting students were not entitled to a rebate. However, the Court warned that funding decisions made pursuant to student referenda probably did not meet the viewpoint neutrality test, stating that ‘‘[a]ccess to a public forum . . . does not depend upon majoritarian consent.’’

NICOLE B. CA ´ SAREZ

References and Further Reading

• Calvert, Clay, Where the Right Went Wrong in Southworth: Underestimating the Power of the Marketplace, Maine Law Review 53 (2001): 53–80.
• Ca´sarez, Nicole B. Public Forums, Selective Subsidies, and Shifting Standards of Viewpoint Discrimination, Albany Law Review 64 (2000): 501–581.

Cases and Statutes Cited

• Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000)
• Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819 (1995)

See also Universities and Public Forums; Viewpoint Discrimination in Free Speech Cases