Arthur S. Leonard
CLAGS Board Member
& New York Law School Professor

The U.S. Supreme Court announced March 29 that it will intervene in the "culture wars" raging in academia by considering whether public university students have a constitutional right to block use of their student activity fees by student organizations of which they disapprove. Lesbian and gay studies programs, such as CLAGS, are at the heart of these culture wars, as right-wing groups raise public controversies about the discussion of sexuality in the academy and question the very legitimacy of lesbian and gay studies as an academic discipline.

By granting the petition filed by the Board of Regents of the University of Wisconsin, seeking review of the U.S. Court of Appeals for the 7th Circuit's August 19, 1998, decision in Southworth v. Grebe, the Supreme Court has set the stage for a decision that could have a major impact on the ability of lesbians, gay men, bisexuals and transgendered people, and a variety of other "controversial" groups to continue to have a visible presence on the nation's public university campuses.

This lawsuit is part of a coordinated strategy by right-wing groups to stifle the visibility on campus of those who "deviate" in any way from conformity with majority norms. At strategically-selected campuses across the nation, these groups have recruited conservative students to file lawsuits challenging the allocation of student activity funds to organizations with which they disagree.

In the case accepted for Supreme Court review, five self-styled "Christian" students, backed up by a right-wing litigation organization, filed a lawsuit against the University of Wisconsin at Madison, characterizing as "political" eighteen student organizations, including two lesbian/gay groups, an AIDS support group, the campus women's center, and a variety of other organizations that could be characterized as "left" or "progressive." The student plaintiffs claimed that because they were compelled to pay the student activity fee, it would violate their rights under the First Amendment to freedom of speech and association for any money they were compelled to pay to be allocated to these groups.

Siding with these student plaintiffs, the Court of Appeals rejected the counter-argument that no individual student was being forced to support or associate with any particular student group.  The University argued that student activity fees are used, in general, to fund a public forum in which students of diverse views can form organizations and obtain university funding.

The Court of Appeals also rejected the argument that because the amount of money from any particular student's activity fee that went to any particular student organization was very small, there was no constitutional injury as a practical matter.

According to the Court of Appeals, this case was like cases in which courts held that union members are entitled to a reduction of dues when the union engages in political activity with which they disagree, or that lawyers who are compelled in some states to join the state bar association in order to practice law would be entitled to dues reductions on similar grounds.

The Court of Appeals directed the University to come up with a method for giving students a way to select which groups they do not want to support and to reduce their fee accordingly. A moment's consideration will suggest that this approach will have serious consequences for the ability of "controversial" student groups to receive funding. Financially hard-pressed students will be strongly tempted to check off every "political" student group on the list in order to save money on activity fees, and even students for whom the amount in question is not significant may decide against paying towards groups in whose causes they have little interest.

The relevance of the issues raised by this case for CLAGS is inescapable. If students who disagree with the goals and activities of gay student groups can withhold their activity fee money, it is a short step to students arguing that their tuition money should not be used to compensate professors who take outspoken positions with which they disagree, or taxpayers arguing that a public university system should not be providing even partial funding or  support to a program whose goals are controversial. The true academy thrives on controversy, and the Supreme Court will be called on to recognize this issue as fundamentally different from the question whether union member dues may be used to subsidize political activities by a union.

The Supreme Court will hear arguments in the case during its term beginning in October 1999, with a decision expected sometime next winter.