Judicial Notebook

In its 2000 term, the U.S. Supreme Court set new First Amendment guidelines for public universities regulating how student groups may use mandatory fees collected from enrollees. The case began at the University of Wisconsin­Madison where students pay a standard activities fee separate from their assessed tuition. As is the case at many other academic institutions, part of that money is designated for distribution by the student government to registered student organizations (RSOs).

One portion of the fee supports extracurricular activities, allocated in part through the discretion of the student-government group, Associated Students of Madison. The university also holds a campus-wide referendum to assist in distributing the fee. The student body as a majority can vote either to approve or to disapprove an assessment for a particular RSO. In the 1995­96 academic year, a referendum resulted in a substantial allocation of money to one RSO, the Wisconsin Public Interest Research Group, which spends some of its money for lobbying efforts aimed at influencing legislation regarding homelessness, environmental and consumer-protection issues.

A group of students filed a claim in district court arguing that the use of the activities fee for political causes violated their rights of free speech, free association and free exercise under the First Amendment. The district court found the activities fee program was a violation of the students' First Amendment rights and the Seventh Circuit Court of Appeals affirmed that holding.

The Supreme Court heard the case, University of Wisconsin v. Southworth, 120 S.CT. 1346 (2000), and held that a public university may support activities that result in speech that is "contrary to the profound beliefs and sincere convictions" of some students when the school is not the initiator of the speech but instead acts to facilitate "the free and open exchange of ideas by, and among, its students." The justices looked to public forum cases to set a standard for this First Amendment claim--see Lamb's Chapel v. Center Moriches Union Free School Dist., 113 S. Ct. 2141 (1993).

A call for 'viewpoint neutrality'

The Court held that, "When a university requires its students to pay fees to support the extracurricular speech of other students, all in the interest of open discussion, it may not prefer some viewpoints to others." Therefore, it held that "viewpoint neutrality" is the proper standard for requiring students to pay the fee in the first instance and for ensuring the integrity of the program's operation. The student government, therefore, acting as an agency of the public university may allocate activity fees to student organizations if the distribution process does not favor one viewpoint over another.

Because the both parties (i.e., the University and the student plaintiffs) stipulated that the program at the University of Wisconsin respects the principle of viewpoint neutrality, the Court did not offer instruction on how to determine whether any specific policy is, in fact, neutral. However, it did find that the student referendum process as practiced at the University of Wisconsin may "substitute[s] majority determinations for viewpoint neutrality [and undermine] the constitutional protection the program requires." The Court ruled that while a university may use alternative devices, such as allowing each student to indicate at the time of fee payment which causes he or she does not wish to support, the Court did not go so far as to find a constitutional requirement for public universities to institute this type of First Amendment protection.

A role for psychology researchers

The holding in Southworth has important implications for psychology research and academics. The concept of viewpoint neutrality in the context of student speech on campuses is an important legal construct that invites empirical investigation. Researchers can study judgments of students, professors and administrators regarding the psychological criteria that define viewpoint neutrality and the procedures that will protect or violate it.

Because the Court did not provide a legal definition, it left the door open for psychologists to influence the ultimate rules that define this important standard that regulates the exercise of free speech on university campuses. Finally, academics--psychologists and others--now have a responsibility to ensure that procedures for allocating activities fees do not use majority opinion to curtail the expression of unpopular minority perspectives.

"Judicial notebook" is an effort by the Courtwatch Committee of APA's Div. 9, the Society for the Psychological Study of Social Issues, to encourage involvement by psychologists in judicial decision-making.