Colleges across America have long been the target of hate group recruiting. As long ago as 1980, for instance, the Ku Klux Klan littered University of Washington dormitories with literature urging students to join the "Klan Youth Corps." Much more recently, Southwest Texas State University was inundated by E-mail propaganda from the neo-Nazi National Alliance.
Now colleges face a new problem — a potential obligation not only to tolerate hate group recruiting, but to subsidize hate group activity.
In Board of Regents of the University of Wisconsin System v. Southworth, a group of students challenged a University of Wisconsin policy requiring that mandatory student activity fees be used to support all qualifying groups, regardless of the groups' political or ideological views.
The plaintiffs argued that the policy required them to support groups with beliefs contrary to their own — a violation of their "First Amendment right not to speak."
The Southworth plaintiffs seemed to have Supreme Court precedent on their side. In Abood v. Detroit Board of Education, the Court held that mandatory union fees could not be used to support political views unrelated to union issues.
In Keller v. State Bar of California, the Court held that although attorneys in California could be required to join the state bar association, they could not be required to fund the bar association's political expression.
But the Supreme Court in Southworth found the university context to be quite different. "To insist upon asking what speech is germane [to a college] would be contrary to the very goal the University seeks to pursue" — namely, the goal of promoting a wide range of speech. "It is not for the Court to say what is or is not germane to the ideas to be pursued in an institution of higher learning."
Because the University's mandatory student activity fee was imposed for the purpose of promoting a wide range of speech, the Court concluded that the fee was permissible as long as it was used the same way for every qualifying group — that is, in a viewpoint-neutral manner.
"The whole theory of viewpoint neutrality," the Court explained, "is that minority views are treated with the same respect as are majority views." For this protection to be available to some, it must be available to all.
Thus, in Southworth, the plaintiffs — conservative Christian students — had to pay funds to support gay and lesbian organizations supporting views offensive to their own. Likewise, if a Ku Klux Klan group became a recognized campus group, black students could have to pay fees to support a group that would deny them their basic rights — a result that many will surely find anomalous.
Because the First Amendment applies only to governmental action, private universities typically are not subject to its dictates. As a result, even after Southworth, private universities do not have to foster speech in a viewpoint neutral manner.
This private versus public distinction is important. Matt Hale has recently tried to form a World Church of the Creator group at Northwestern University, a private school. The University requires all groups to abide by Northwestern's non-discrimination policy. Because Hale's group cannot pretend to satisfy that requirement, the group need not be recognized.
But in light of Southworth, public universities will not have such an easy way out. If they use mandatory student fees to support some groups, they may have to support them.