A funny thing happens when you pay for a forum: mandatory student fees to support political speech at public universities.

• Author: Wiggin, Carolyn
• Position: Case Note

Classroom nudity(1) and hate speech regulations(2) are two much publicized free speech issues that have arisen recently at the University of California at Berkeley (hereinafter "U.C. Berkeley" or "University"). Both topics raise important questions about the limits of tolerance for free expression at a large public university, particularly one with a long tradition of free speech activities, yet both deal with expression which many believe has little civic value. Pleas to protect hate speech, for instance, often take the form of arguments that if we do not protect speech and expression absolutely, we risk jeopardizing speech on public policy, the speech which First Amendment theory values most.(3) Yet a greater threat to free speech on campus has gone largely unnoticed. In Smith v. Regents of the University of California,(4) the California Supreme Court ruled that the use of mandatory activity fees to fund political or ideological student groups at public universities violates the First Amendment. This decision will in fact severely diminish student speech on issues of public concern at state universities.

University administrations typically have not considered the political content of a student organization's speech in determining whether or not to grant it funding.(5) Since the early 1970's, students have challenged activity fee systems that funnel general fees to groups that individual fee payers find offensive.(6) Prior to Smith, courts consistently upheld such systems, basing their decisions on factors such as university officials' discretion to determine which activities warrant subsidization, the importance in higher education of learning to tolerate speech and debate with one's opponents, and the idea that universities foster a "marketplace of ideas" by providing "wide exposure to that robust exchange of ideas which discovers truth |out of a multitude of tongues.'"(7) Underpinning most of these decisions is a concept of the university campus as a public forum for its students.

This Note argues that in Smith the California Supreme Court broke with a tradition that permits universities to fund political student groups with mandatory fees, and that it did so because it failed to appreciate the relationship between the fee system and the creation of a public forum for students' speech. If the campus is viewed as a public forum, not only is the fee program which supports speech within the forum constitutional, but cutting off "political" student groups from such support is unconstitutional. These two propositions are intimately connected: The reason that the University does not violate the First Amendment when it compels students to support on-campus political speech is that the activity funding system, like campus grounds and facilities, is a public forum; because the activity funding system is a public forum, the University of California Regents (hereinafter "Regents") may not discriminate against political groups in subsidizing speech within that forum. If the Regents choose to subsidize speech within the public forum of the campus, they must do so according to content-neutral criteria. Reciprocally, by remaining neutral toward student speech within the forum, the University avoids endorsing any particular group's political and ideological opinions and thus avoids compelling speech in violation of the First Amendment.(8)

Part I of this Note describes the Smith opinion, outlining the logic that led the court to order the Regents to identify student groups whose objectives are more political than educational and deny those groups access to funds generated by mandatory fees. Part III discusses the mandatory fee doctrine on which the court relied. It argues that the court should have asked whether or not funding a wide range of student speech, including political speech, was "germane" to the purpose of the activity fee program, rather than asking whether particular student groups were more "political" than "educational." In addition, Part II illustrates that in the past courts have found that support for controversial speech on public matters, as part of public university programs to support a campus forum in which a diversity of views are expressed, is germane to the university's educational mission. Part III argues that because the activity fee program's purpose was to support a public forum for students' speech, the University could not constitutionally discriminate against political and ideological speech in distributing funds for speech within that forum. Part IV explores the impact the Smith court's order will have on the activity group system and argues that discrimination against "political" and "ideological" student speech amounts to discrimination against student organizations based not only on the content but also on the viewpoint they express. Part V concludes that, as long as public universities utilize a distribution system which is itself content-neutral, they should be able to distribute funds generated from mandatory activity fees to political and ideological student groups that participate within the public forum of the campus.

1. THE Smith DECISION

   In Smith, the California Supreme Court ordered the Regents to restructure the student activity fee system that had been in place at U.C. Berkeley since 1955.(9) For nearly forty years before Smith was decided, every student at U.C. Berkeley had paid a mandatory activity fee to the Regents each semester. A portion of the funds generated by this fee were transferred from the University to the Associated Students of the University of California, Berkeley (hereinafter "A.S.U.C."), a student association which finances student government and student activity groups. Under the guidelines in place when the system was challenged, any four U.C. Berkeley students could create an activity group eligible for A.S.U.C. funding by registering with the University and agreeing to comply with content-neutral regulations. Properly constituted student activity groups could use funds they received from the A.S.U.C. for defined activities.(10) The guidelines provided that the funds could be used for purposes related to the University or beneficial to the student body, and could not be used in connection with partisan political activities or ballot measures, except to fund nonpartisan educational fora on issues of interest.(11) In practice, this meant that groups receiving money were allowed to take ideological stands, but not to endorse political candidates or lobby for legislation.(12)

   In 1979, the Pacific Legal Foundation filed a complaint in the California Superior Court on behalf of four U.C. Berkeley students challenging the Regents' power to collect mandatory fees and distribute them to student organizations dedicated to political or ideological causes.(13) The plaintiffs claimed that the University had violated both the California and U.S. Constitutions(14) by providing mandatory student contributions to the following groups: Amnesty International, Berkeley Students for Peace, Campus N.O.W. (National Organization for Women), Campus Abortion Rights Action League, East Bay Right to Life, Gay and Lesbian Union, Progressive Students Organization, Radical Education and Action Project, Sparticus Youth League, Students Against Intervention in El Salvador, Students for Economic Democracy, Iranian Student Association, U.C. Berkeley Feminist Alliance and Women Organized Against Sexual Harassment, U.C. Campus Sierra Club, Conservation and Natural Resources Study Student Organization, and Greenpeace Berkeley.(15)

   The Smith court began its discussion by reviewing the Supreme Court's First Amendment mandatory fee doctrine. This doctrine generally prohibits the state from compelling an individual to fund political or ideological speech with which he or she disagrees. An exception to this prohibition arises when the state can compel an individual to support an organization because the organization serves a public function, and speech by the organization which the individual incidentally supports is "germane" to that function.(16) The question before the Smith court was whether speech by political and ideological student groups was sufficiently "germane" to the function served by the University to fit within the exception.

   The court rejected the University's argument that funding political student groups is germane to the University's purpose because it educates students by allowing them to express their views, participate in campus administration, learn about governmental processes, develop social skills, inform the student body about various issues, and ensure freedom of expression and association.(17) The court dismissed the possibility that public forum doctrine applied to the case, relegating that issue to a footnote.(18) Rather than analyzing the entire mandatory fee system as a means of promoting a forum for a wide range of student speech, the court attacked the educational value of particular groups that received funding. The court asserted that it is "obviously true ... 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."(19) Thus, the court reasoned, the mandatory fees were being spent for political speech which, by definition, was not germane to the public function served by the University. The court's solution to what it perceived as a violation of the freedom not to fund speech was to require the Regents to determine which student groups are more ideological or political than educational, and to offer students the option of deducting an amount corresponding to the percentage of the A.S.U.C. budget that any of those groups would receive from the students' activity fees.(20)

   Under the Smith regime, groups branded "political" or "ideological" will suffer. While the amounts of money at stake are not huge...