University of Wisconsin–Eau Claire Responds to FIRE

Last Wednesday, FIRE put out a press release dealing with the University of Wisconsin–Eau Claire’s Student Senate legislation that bans funding for any student organized activity that promotes a “particular ideological, religious, or partisan vie point.” The next day, a letter from the University of Wisconsin’s Office of General Counsel arrived in FIRE’s mail stating, in part, that

the legislation you discuss in your letter [read FIRE’s letter here] is not yet in effect, pending review by my office. We will work with the campus and the student government to provide any guidance necessary to assure that their segregated student fee policies are consistent with Board of Regents v. Southworth (2000) and other relevant law.

Therefore, it appears that there’s a hope that the general counsel’s office will overrule the student senate’s patently unconstitutional regulation. As FIRE has said many times, students should not be penalized simply because their beliefs are political or religious in nature rather than apolitical or secular. There is nothing inherently less noble or worthy about organizing around politics or religion as opposed to, say, a love of golf or of Quentin Tarantino movies. Perhaps funding the latter two types of clubs is less controversial than funding the former two types of clubs, but the U.S. Constitution, thankfully, doesn’t make a lack of controversy a requirement for expression.

FIRE has received a number of emails from people who disagree with our involvement here, many of them making basically the same point about this case, which is that they don’t think that students should be forced to have their mandatory fees go to clubs with which they don’t agree. Good point — ­in fact, I agree. However, the U.S. Supreme Court has determined (in the 2000 case of Board of Regents of the University of Wisconsin System v. Southworth — yes, that’s right, the very same University of Wisconsin!) that the mandatory student-fee system is constitutional at state universities provided that the program is viewpoint neutral, ­which UWEC’s student senate amendment is emphatically not, as it discriminates against “political, religious, and ideological” viewpoints.

It is vital to realize that determining what viewpoints are truly political, religious, or ideological is in itself a content-based process that will inevitably lead to viewpoint discrimination. Even a golf club that advocates the creation of a new municipal golf course could plausibly be accused of having an “ideological” viewpoint on city development, zoning, or even environmental issues. It is for this reason that viewpoint neutrality is so important—do we really want misinformed or uninformed student government representatives making those kinds of decisions? Even if students do their best to keep their own prejudices out of their decisions, the best that can plausibly be achieved will be an arbitrary and therefore unjust system. Indeed, it’s far more likely that student government representatives with this kind of power would abandon viewpoint neutrality altogether and fund only groups made up of their political allies, their coreligionists, or other like-minded people.

Now, do I think that the student-fee system at most universities is, in reality, viewpoint neutral? Of course not­. Anecdotal evidence, at least, suggests that it’s horrendously biased. But this is an argument against the system itself, which, like it or not, is going to be around for some time. I suspect that if and when universities really do begin to start making viewpoint neutral decisions, the mandatory student-fee system will quickly fall out of favor as administrators shy away from funding “disagreeable” clubs at the same level to which they fund their own pet organizations. Time will certainly tell.