In the
United States Court of Appeals
For the Seventh Circuit
Nos. 97-3510 & 97-3548
SCOTT H. SOUTHWORTH, AMY SCHOEPKE,
KEITH BANNACH, et al.,
Plaintiffs-Appellees, Cross-Appellants,
v.
MICHAEL W. GREBE, SHELDON B. LUBAR,
JONATHAN B. BARRY, et al.,
Defendants-Appellants, Cross-Appellees.
Appeal from the United States District Court for the Western District of
Wisconsin.
No. 96 C 292--John C. Shabaz, Chief Judge. Submitted February 26,
1998*--Decided August 10, 1998 Before BAUER, HARLINGTON WOOD, JR., and
MANION, Circuit Judges.

MANION, Circuit Judge. Students attending the University of
Wisconsin-Madison must pay a student activity fee. A portion of this
mandatory fee is distributed to private organizations which engage in
political and ideological activities. Plaintiffs, students at the
University of Wisconsin-Madison, sued the Regents of the University
claiming that forcing objecting students to fund such organizations
violates their First Amendment rights, as well as other federal and state
statutes. After various procedural motions and argument, the district court
granted plaintiffs summary judgment on their freedom of speech and
association claims, dismissed the remaining claims, and entered an
injunction which both barred such funding and established a detailed
opt-out mechanism. We affirm the district court's determination that
forcing objecting students to fund private organizations which engage in
political and ideological activities violates the First Amendment, but
reverse and vacate portions of the declaratory judgment and injunction.

I. BACKGROUND

A. Procedural and Factual Background

Plaintiffs Scott Southworth, Amy Schoepke, Keith Bannach, Rebecca Bretz,
and Rebecka Vander Werf each attended or still attend the University of
Wisconsin-Madison. They sued the members of the Board of Regents of the
University of Wisconsin System ("the Regents"), claiming that the Regents'
use of objecting students' mandatory student activity fees to fund private
organizations that engage in political and ideological advocacy,
activities, and speech violates their rights of free speech and
association, the Free Exercise clause of the Constitution, the Religious
Freedom Restoration Act, ("RFRA"),? and various state laws. They sought
both injunctive and declaratory relief.

The district court granted plaintiffs summary judgment on their free speech
and free association claims, and the Regents appealed. We dismissed the
original appeal as impermissibly interlocutory, and remanded to the
district court. Southworth v. Grebe, 124 F.3d 205 (7th Cir. 1997)
(unpublished order). Following various interim procedural refinements--none
of which merit discussion here-- the district court dismissed the remaining
claims and granted the plaintiffs injunctive relief.

This successive appeal followed. Because extensive briefing and argument on
the merits of this case have already occurred, we instructed the parties to
limit their additional briefing to the district court's decision on remand.
We have reviewed these new briefs and the record, and conclude that
additional oral argument on those issues is unnecessary, Fed. R. App. P.
34(a), Cir. R. 34(f). We now proceed to the merits, which include only the
plaintiffs' First Amendment challenge to the Regents' mandatory student
activity fee policy.

B. Mandatory Student Fee Policy

Students enrolled full-time at the University of Wisconsin-Madison must pay
a mandatory student activity fee; it's mandatory because students who
refuse to pay cannot receive their grades or graduate. During the 1995-96
academic year (the academic year during which the plaintiffs filed suit)
the Regents assessed a mandatory student fee of $165.75 each semester.

Section 36.09 of the Wisconsin Code gives both the Regents and the students
control over the funds generated by the mandatory student fee. The extent
of control depends on the classification given the student fees: The
Regents classify a portion of the student fees as nonallocable and a
portion as allocable. Although the students (through student government
representatives) review and make recommendations regarding the use of
nonallocable fees, the Regents control the distribution of these fees. (The
nonallocable fees cover expenses such as debt service, fixed operating
costs of auxiliary operations, student health services, and the first and
second year of the Recreational Sports budget.) On the other hand, the
Associated Students of Madison ("ASM") (the official representative of the
student body) has complete authority over most of the allocable funding.
Because the plaintiffs challenge only the funding from the allocable
portion of student fees, we focus on those expenditures.

The distribution network for allocable student fees is rather complicated.
We will attempt to draw the money trail to help explain the source of the
complaint. As just noted, the ASM has authority over the allocable portion
of student fees. Among other things, these fees fund the General Student
Service Fund ("GSSF") and the Associated Students of Madison budget. In
turn, both the GSSF and the ASM distribute the mandatory student fees to
other private organizations, although the distribution process differs. The
GSSF is distributed to private organizations by a committee of the ASM
called the Student Services Finance Committee ("SSFC").? Registered student
organizations, University departments, and community-based service
organizations qualify for funding from the GSSF. To obtain money from the
GSSF, the organization must apply to the SSFC. After reviewing the
application, the SSFC determines whether to grant or deny the request for
money, and if granted the SSFC also determines the amount of funding the
private organization will receive. During the 1995-96 school year, the SSFC
distributed about $974,200 in student fees to private organizations.

The ASM budget also funds private organizations, although only "Registered
Student Organizations" qualify for funding from the ASM budget. To qualify
as a Registered Student Organization, among other things, a group must be a
formalized not-for-profit group, composed mainly, but not necessarily
exclusively, of students, and controlled and directed by students. A
Registered Student Organization may obtain money from the ASM budget in the
form of a grant to support its operations, related travel, or to sponsor an
event. During the 1995-96 school year, the ASM budget distributed $109,277
in student fees to private organizations.

In addition to obtaining money from the GSSF and the ASM budget, a
Registered Student Organization may seek funding through a student
referendum. With a student referendum, students vote at large on whether or
not to approve an assessment for the student group. The Wisconsin Student
Public Interest Research Group ("WISPIRG") obtained $49,500 in student fees
during the 1995-96 academic year as the result of a student referendum.

After the ASM and the SSFC (or the students by referendum) have made their
funding decisions, these decisions are sent to the Chancellor and the Board
of Regents for their review and approval; while the ASM has complete
authority over most of the allocable funding, the Regents have final
authority to approve or disapprove the allocations of funds by the student
government under section 36.09(5) of the Wisconsin Code.

C. Organizations Funded by the Student Fees

The GSSF, the ASM budget, and student referendums can fund many different
activities and organizations. However, the plaintiffs object only to the
funding of organizations which engage in political and ideological
activities with fees collected from students who object to such funding.
(Henceforth we shall refer to them as "objecting students.") Plaintiffs
presented evidence of eighteen organizations which both receive student
fees and engage in political and ideological activities: WISPIRG; the
Lesbian, Gay, Bisexual Campus Center; the Campus Women's Center; the UW
Greens; the Madison AIDS Support Network; the International Socialist
Organization; the Ten Percent Society; the Progressive Student Network;
Amnesty International; United States Student Association; Community Action
on Latin America; La Colectiva Cultural de Aztlan; the Militant Student
Union of the University of Wisconsin; the Student Labor Action Coalition;
Student Solidarity; Students of National Organization for Women; MADPAC;
and Madison Treaty Rights Support Group.

Reviewing the evidence in the light most favorable to the Regents, as we
must, we conclude that the 18 organizations listed above both receive
student fees and engage in political and ideological activities. While the
record is replete with examples, we limit ourselves to a sample:

WISPIRG, which received $49,500 in student fees during the 1995-96 school
year, distributed $2,500 directly to its parent organization U.S. PIRG for
use in lobbying Congress and developing candidate- voter guides. WISPIRG
also published a voters' guide, which ranked congressional candidates based
on their views on various pieces of federal legislation. During 1995-96,
the UW Greens received $6,905 in student fees. The UW Greens, along with
the Progressive Student Network (another group funded with student fees),
lobbied the Wisconsin state legislature, and encouraged legislators to
introduce three bills which would limit mining in the state. The UW Greens
also distributed literature for the Green Party USA, a political party, and
distributed campaign literature for Ralph Nader during his bid for U.S.
President on the Green Party ticket. Along with WISPIRG and other groups,
the UW Greens also organized a march on the state capital to show their
opposition to the governor and the governor's budget. Another recipient of
mandatory student fees, the International Socialist Organization, advocated
the overthrow of the government: "Revolution Not Reform. Reforms within the
capitalist system cannot put an end to oppression and exploitation.
Capitalism must be overthrown. The structures of their present
government--parliaments, the army, the police and capitalism--cannot be
taken over and used by the working class." Along with the UW Greens and
other groups, the International Socialist Organization sponsored a rally at
the state capitol and at a congressman's office. The International
Socialist Organization also joined with about 400 others to demonstrate
outside a church located in Madison to oppose the ideological views of a
church speaker.

The Campus Women's Center, which received $34,200 in student fees, used its
bimonthly newsletter to advocate its political and ideological views. For
instance, in the February/March 1996 issue of "The Source," the newsletter
published a lengthy article opposing the Informed Consent Bill (Assembly
Bill 441), which proposed certain regulations of abortion. This article
urged people to contact the Campus Women's Center to learn how they could
work against this legislation:

We must act now to block this bill. You can obtain a copy of the bill at
the Legislative Reference Bureau. Familiarize yourself with its contents
and get prepared to defend women's rights to reproductive choice when the
bill hits the Senate Floor in March. For more information or to find how
you can become further involved, contact Jennifer at the Campus Women's
Center: 262-8093.

Other examples include the Ten Percent Society which in its funding
application stated that it has "also been active in the political arena as
necessary." The Ten Percent Society received funding and used its Internet
Home Page to advocate legislation authorizing same-sex marriages, while
condemning attempts by the Wisconsin Legislature to ban them. The
Progressive Student Network and Amnesty International also received student
fees: The Progressive Student Network focused on a variety of issues
including "free trade (NAFTA/GATT), welfare reform, . . . right-wing
backlash on campus, the GOP's 'contract with America,' etc. . . ." And
Amnesty International worked publicly for the abolition of the death
penalty.

The defendants do not dispute that these and other organizations engage in
political and ideological speech. Instead, the Regents argue that the First
Amendment protects the rights of these organizations to engage in such
speech. Of course it does. But the students do not ask that we restrict the
speech of any student organization; they merely ask that they not be forced
to financially subsidize speech with which they disagree. In other words,
Amnesty International is free to oppose the death penalty and can continue
to advocate its position; the Women's Resource Center can still speak out
against informed consent legislation; and the UW Greens, the International
Socialist Organization and WISPIRG can lobby all they want. The Regents and
amici rely on the First Amendment's guarantee of free speech as support for
their position, but the First Amendment does not guarantee that the
government will subsidize speech. See, Federal Election Comm'n v.
Massachusetts Citizens for Life, Inc., 479 U.S. 238, 256 n.9 (1986)
("[T]here is no right to have speech subsidized by the Government."). In
short there is absolutely no question here of restricting the speech of any
private organization. See, e.g., Smith v. Regents of the University of
California, 844 P.2d 500, 503 (Cal. 1993) ("In fact, the case has nothing
to do with restrictions on speech. It goes without saying that all students
are free to organize, to promote their ideas, and to seek by all legal
means to persuade others that their views are correct. . . .").

Other aspects of the mandatory student fee which the students do not
challenge include: the Regents' authority to collect student activity fees;
the Regents' use of the non-allocable portion of the student activity fee;
the Regents' use of the allocable portion of the student activity fee to
fund the student government; the Regents' use of the allocable portion of
the student activity fee to fund private organizations which do not engage
in political or ideological speech, activities, or advocacy; the Regents'
use of the allocable portion of non-objecting students' activity fees to
fund private organizations engaging in political or ideological speech,
activities, or advocacy; or the Regents' use of the allocable portion of
the student activity fee to fund the student newspaper, or the
Distinguished Lecture Series.

This leaves a very limited constitutional question: whether the Regents can
force objecting students to fund private organizations which engage in
political and ideological activities, speech, and advocacy. The district
court concluded that they could not, and granted the plaintiffs declaratory
and injunctive relief. We begin by considering the declaratory relief.

II. ANALYSIS

A. Declaratory Judgment

The district court entered a declaratory judgment that "the defendants' use
of the mandatory segregated fees to support political and ideological
activities violates the First Amendment to the United States Constitution,
. . ."

The First Amendment provides:

Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridge the freedom of speech, or
of the press; or the right of the people peaceably to assemble, and to
petition the Government for redress of grievances. The Supreme Court has
long recognized two necessary corollaries to the First Amendment's
guarantee of free speech: the right not to speak, West Virginia State Board
of Education v. Barnette, 319 U.S. 624, 642 (1943); and the right not to be
compelled to subsidize others' speech, Abood v. Detroit Bd. of Educ., 431
U.S. 209 (1977); Keller v. State Bar of Cal., 496 U.S. 1 (1990). It is
based on these familiar corollaries, and specifically Abood and Keller,
that the plaintiffs challenge Wisconsin's mandatory student fee policy.

The Supreme Court has yet to determine whether these First Amendment
corollaries protect objecting students from being forced by state
universities to subsidize private political and ideological organizations.
However, in Rosenberger v. Rector and Visitors of the University of
Virginia, 515 U.S. 819 (1995), the Supreme Court provided guidance on the
appropriate analysis for such a challenge. In Rosenberger, students who
published a Christian newspaper at the University of Virginia challenged
the university's denial of their request for funding from the university's
mandatory student activity fees. Although the university had used student
fees to pay for printing costs for non- religious newspapers, the
university denied the plaintiffs' request because of the newspaper's
religious viewpoint. Id. at 825-27. The Supreme Court held that the student
activity fees created a fora of money and that once established the fora
had to be made available on a viewpoint-neutral basis. Because the
University of Virginia discriminated based on the religious viewpoint of
the newspaper, it had violated the First Amendment.

While Rosenberger did not consider the question we have before us, in
noting what was not before it, the Court directed us to the Abood and
Keller analysis: The fee is mandatory, and we do not have before us the
question whether an objecting student has the First Amendment right to
demand a pro rata return to the extent the fee is expended for speech to
which he or she does not subscribe. See Keller v. State Bar of California,
496 U.S. 1, 15-16 (1990); Abood v. Detroit Board of Ed., 431 U.S. 209, 235-
236 (1977). Id. at 840. See also, Rosenberger, 515 U.S. at 851 (O'Connor,
concurring) ("Finally, although the question is not presented here, I note
the possibility that the student fee is susceptible to a Free Speech Clause
challenge by an objecting student that she should not be compelled to pay
for speech with which she disagrees. See, e.g., Keller v. State Bar of
California, 496 U.S. 1, 15 (1990); Abood v. Detroit Board of Education, 431
U.S. 209, 236 (1977).").?

Not only does Rosenberger direct us to Abood and Keller, but every other
circuit to have considered the constitutional uses of mandatory student
activity fees has applied the Abood and Keller analysis (although the
circuits are split on how exactly the analysis applies). Galda v. Rutgers,
772 F.2d 1060, 1063-64 (3d Cir. 1985); Carroll v. Blinken, 957 F.2d 991,
997 (2d Cir. 1992); Hays County Guardian v. Supple, 969 F.2d 111, 123 (5th
Cir. 1992); Kania v. Fordham, 702 F.2d 475, 479-80 (4th Cir. 1983). See
also, Smith v. Regents of the University of California, 844 P.2d 500, 511
(Cal. 1993) (applying the Abood and Keller analysis). Given the Supreme
Court's lead and the overwhelming authority from other circuits, the issue
before us is properly reviewed under the authority of Abood and Keller.

In Abood, 431 U.S. 209, employees of the Detroit Board of Education
challenged the constitutionality of an agency-shop agreement which required
teachers who did not join the union to pay a service fee to the union. The
teachers argued that this mandatory fee violated their First Amendment
rights to free speech and free association. The Supreme Court held that the
Board of Education could compel non-union teachers to pay the service fee,
explaining that "such interference as exists is constitutionally justified
by the legislative assessment of the important contribution of the union
shop to the system of labor relations established by Congress." Id. at 222.
Thus, so "long as [the union] act[s] to promote the cause which justified
bringing the group together, the individual cannot withdraw his financial
support merely because he disagrees with the group's strategy." Id. at 223.

The Court continued, clarifying its holding:

We do not hold that a union cannot constitutionally spend funds for the
expression of political views, on behalf of political candidates, or toward
the advancement of other ideological causes not germane to its duties as
collective-bargaining representative. Rather, the Constitution requires
only that such expenditures be financed from charges, dues, or assessments
paid by employees who do not object to advancing those ideas and who are
not coerced into doing so against their will by the threat of loss of
governmental employment. Id. at 235-36 (emphasis added). Thirteen years
later in Keller v. State Bar of California, 496 U.S. 1 (1990), the Supreme
Court revisited the issue of compelled funding. In Keller, a group of
lawyers challenged the use of mandatory state bar dues to fund lobbying on
social issues.

The Supreme Court began by explaining Abood:

Abood held that unions could not expend a dissenting individual's dues for
ideological activities not germane to the purpose for which compelled
association was justified: collective bargaining. Here the compelled
association and integrated bar are justified by the State's interest in
regulating the legal profession and improving the quality of legal
services. The State Bar may therefore constitutionally fund activities
germane to those goals out of mandatory dues of all members. It may not,
however, in such manner fund activities of an ideological nature which fall
outside of those areas of activity. Id. at 13-14. From Keller's holding
("The State Bar may therefore constitutionally fund activities germane to
those goals. . . .", 496 U.S. at 13) and Abood's qualification (the
Constitution requires that expenditures for ideological cause not germane
be financed by voluntary funds, 431 U.S. at 235), courts have named the
analysis born of Abood the "germaneness analysis."4 Yet Abood did not
provide much guidance as to its actual application. Keller did more by
setting forth guidelines for determining permissive expenditures: "[T]he
guiding standard must be whether the challenged expenditures are
necessarily or reasonably incurred for the purpose of regulating the legal
profession or 'improving the quality of the legal service available to the
people of the State.'" Id. at 14 (quoting Lathrop v. Donohue, 367 U.S. 820,
843 (1961) (plurality opinion)). But Keller still left many lines to be
drawn.

Beyond Abood and Keller, the Supreme Court has addressed the issue of
germaneness in several other cases. Chicago Teachers Union v. Hudson, 475
U.S. 292 (1986); Ellis v. Brotherhood Railway Clerks, 466 U.S. 435 (1984);
International Ass'n of Machinists v. Street, 367 U.S. 740 (1961). The most
significant development came in Lehnert v. Ferris Faculty Assn., 500 U.S.
507 (1991). In Lehnert, the Supreme Court considered the constitutionality
of various union expenditures under the germaneness analysis originating in
Abood and Keller. However, in doing so, Lehnert explained that this
required a three-prong analysis for determining whether union expenditures
violated the objecting employees' First Amendment rights: To be
constitutional, the expenditure must be "germane to collective bargaining;
justified by the government's vital policy interest in labor peace and
avoiding 'free-riders'; and not significantly add to the burdening of free
speech that is inherent in the allowance of an agency or union shop." Id.
at 519. The Supreme Court recently reaffirmed this test. Air Line Pilots
Assoc. v. Miller, 118 S.Ct. 1761 (1998).

Lenhert's three-prong analysis is the test today. And as Lehnert holds,
there is more to the germaneness analysis than whether the activity is
germane to the governmental interest, but because "germaneness" is the
first prong, we begin there.


1. Germaneness.

Under Lehnert, the first prong considers whether the mandatory fee is
germane to some otherwise legitimate government scheme, in that case
collective bargaining. This prong really presents two questions: initially
whether there is some otherwise legitimate governmental interest justifying
any compelled funding; and then whether the specifically challenged
expenditure is germane to that interest. We need not answer the initial
question because the students do not contend that the Regents lack a
legitimate interest in the compelled funding of the student government or
student organizations.

That leaves the second question: whether the challenged activity is germane
to the government's asserted interest. Here the Regents assert an interest
in education. They then contend that funding private organizations which
engage in political and ideological activities is germane to education
because the funding allows for more diverse expression and this in turn is
educational. See reply brief at 2 ("[E]xpression of diverse viewpoints is
germane to the educational mission of the UW-Madison.").

However, "germaneness" cannot be read so broadly as to justify the
compelled funding of private organizations which engage in political and
ideological advocacy, activities and speech. For example, in Keller, the
State Bar defended its funding of lobbying on nuclear weapons, abortion,
and prayer in public schools arguing that it was authorized to fund
activities "in all matters pertaining to the advancement of the science of
jurisprudence or to the improvement of the administration of justice." 496
U.S. at 15. The Supreme Court rejected such an over-encompassing reading of
germaneness, holding instead that expenditures "to endorse or advance a gun
control or nuclear weapons freeze initiative," clearly fell at "the extreme
end[ ] of the spectrum" of expenditures not germane and therefore
unconstitutional. Id. at 15-16.

In Lehnert the Supreme Court again rejected a broad interpretation of
"germaneness." Lehnert involved a challenge to the union's use of dues to
fund lobbying related to financial support of the employee's profession or
public employees generally. The Court held that "[w]here, as here, the
challenged lobbying activities relate not to the ratification or
implementation of a dissenter's collective bargaining agreement, but to
financial support of the employee's profession or of public employees
generally, the connection to the union's function as bargaining
representative is too attenuated to justify compelled support by objecting
employees."5 500 U.S. at 520 (plurality). The Court further concluded "that
the State constitutionally may not compel its employees to subsidize
legislative lobbying or other political union activities outside the
limited context of contract ratification or implementation." Id. at 522
(plurality).

In these cases, the Supreme Court rejected arguments that political and
ideological speech is germane to the governmental interest involved. In
fact, in Lehnert, the Supreme Court stated that germaneness cannot be read
so broadly in the context of a private sector union as to "include
political or ideological activities." Id. at 516 (emphasis added). See
also, Ellis, 466 U.S. at 452 (holding that while union activities in
question may benefit collective bargaining, the benefits were too
attenuated to be germane).

Similarly, here germaneness cannot be read so broadly as to include forced
funding of private political and ideological groups. The private groups are
voluntary and may be open to both students and non-students alike. Many of
the groups mirror organizations which exist outside of the University
setting (for example, WISPIRG, the UW Greens, the International Socialist
Organization, and Amnesty International all have non-university
counterparts). And most of the private student groups (over 70%) do not
even apply for funding, showing that the funding is not even germane to the
private organizations' existence, much less germane to education. Moreover,
unlike, for example, a political science class on socialism, the
International Socialist Organization is only incidentally concerned with
education. Its primary goal is the promotion of its ideological beliefs.
The fact that some educational benefit may come from it is secondary, and
therefore not sufficiently germane to overcome the objecting students'
constitutional rights. The mere incantation of the rubric "education"
cannot overcome a tactic, repugnant to the Constitution, of requiring
objecting students to fund private political and ideological organizations.

To justify compelling objecting students to fund the private organizations,
the Regents point to the expansive governmental interest they have --
education -- as compared to the limited interests involved in Abood and
Keller -- collective bargaining and oversight of the bar--and argue that
because the interest is so broad, more activities are germane, including
political and ideological activities. The Regents correctly recognize the
breadth of "educational"; everything is in a sense educational (organizing
a student activity, engaging in political and ideological speech, even
choosing which political party or candidate to fund) even if it merely
teaches you that you do not want to do it again. Yet when presented with a
similarly expansive interest in Keller -- the advancement of the law--the
Supreme Court rejected such a broad reading of germaneness. Keller, 496
U.S. at 15-16 ("[T]o endorse or advance a gun control or nuclear weapons
freeze initiative," clearly fell at "the extreme end[ ] of the spectrum" of
expenditures not germane and therefore unconstitutional.). We therefore
reject the Regents' argument.

The Regents also rely on Carroll v. Blinken, 957 F.2d 991 (2d Cir. 1992)
("Carroll I"), and Carroll v. Blinken, 42 F.3d 122 (2d Cir. 1994) ("Carroll
II"), wherein the Second Circuit applied the "germaneness" analysis of
Abood and Keller and held that a state university could constitutionally
fund the New York Public Interest Research Group with students' activity
fees even though some students disagreed with that speech "as long as that
organization spends the equivalent of the students' contribution on campus
and thus serves the university's substantial interests in collecting the
fee."6 957 F.2d at 992. The plaintiffs respond by citing the contrary
precedent of Galda v. Rutgers, 772 F.2d 1060 (3d Cir. 1985), wherein the
Third Circuit applied the Abood and Keller "germaneness" analysis, and
concluded that while the New Jersey Public Interest Research Group offered
some educational benefits to students, such benefits were incidental to the
organization's primary political and ideological purpose, and this
incidental educational benefit did not justify the infringement of the
dissenting students' speech and association rights:

Although the training PIRG members may receive is considerable, there can
be no doubt that it is secondary to PIRG's stated objectives of a frankly
ideological bent. To that extent the educational benefits are only
"incidental"--arising from or accompanying the principal objectives--and
subordinate to the groups' function of promoting its political and
ideological aims. Galda, 772 F.2d at 1065.

The students also rely on the California Supreme Court decision in Smith v.
Regents of the University of California, 844 P.2d 500, cert. den., 510 U.S.
863 (1993), which followed Galda and rejected Carroll. In Smith, students
at the University of California at Berkeley challenged the school's
mandatory activity fee which financed the student government and other
student activity groups. The students claimed that using their fees to
subsidize private organizations which engaged in political or ideological
activities violated the First Amendment. The California Supreme Court held
that:

The principles that we derive from Carroll and Galda, as well as Keller and
Abood, are these: A university may, in general, support student groups
through mandatory contributions because that use of funds can be germane to
the university's educational mission. At some point, however, the
educational benefits that a group offers become incidental to the group's
primary function of advancing its own political and ideological interests.
To fund such a group may still provide some educational benefits, but the
incidental benefit to education will not usually justify the burden on the
dissenting students' constitutional rights. Phrased in terms of the tests
that courts have applied, a regulation that permits the mandatory funding
of such groups is not "narrowly drawn to avoid unnecessary intrusion on
freedom of expression" and it "unnecessarily restrict[s] constitutionally
protected liberty, [when] there is open a less drastic way of satisfying
its legitimate interest." Id. at 511 (internal citations omitted).

Were we to have to decide based solely on Carroll, Galda, and Smith, we
would find Galda and Smith's analyses and conclusions more persuasive, and
we would conclude that funding of political and ideological speech of
private organizations is not germane to the university's mission.7 But our
decision is not confined to lower court analyses. Rather, we have the
Supreme Court's guidance on interpreting "germaneness," and the Court's
example, see supra 14-17, counsels against adopting the broad reading of
"germaneness" which Carroll took. However, even if germaneness could be
read as broadly as the Regents suggest and the Second Circuit allowed, and
we (along with the Third Circuit and the California Supreme Court) are
wrong in our assessment of the germaneness of a University's funding of
private political and ideological groups to education, the Regents would be
less than halfway home. As Lehnert made clear, "germaneness" is not the
be-all/end-all question in the constitutional analysis, but rather is only
the first prong: Under Lehnert, not only must the mandatory fee be germane
to some otherwise legitimate economic or regulatory scheme, the compelled
funding must also be justified by vital interests of the government, and
not add significantly to the burdening of free speech inherent in achieving
those interests. Yet Carroll did not consider these additional
requirements, and in a case such as this involving the forced funding of
political and ideological speech, those factors obtain the utmost
significance.8

2. Vital policy interests of the government.

The second prong under Lehnert considers whether the compelled fee is
justified by vital policy interests of the government. Lehnert, 500 U.S. at
520. In the context of unions, those policy interests included both labor
peace and avoiding free riders, and with the bar "the state's interest in
regulating the legal profession and improving the quality of legal
services" justified the compelled association inherent in the integrated
bar. Keller, 496 U.S. at 13-14. While the Regents do not address this
prong,9 throughout this appeal the Regents have focused on their interest
in education. The Regents also speak of the government's interest in shared
governance, or in other words the interest in allowing students to share in
the running of the Wisconsin University System. No doubt there is a vital
interest in education, and the government has an interest in allowing
students to share the governance of the university system (although whether
the latter interest is also "vital" is not clear). However, for the vital
policy interest to survive scrutiny under Lehnert, it must justify
compelled funding of the private or quasi-private activity. Neither of
these interests presents a vital interest in compelling students to fund
private organizations which engage in political and ideological speech.
Again, Lehnert, 500 U.S. at 521, illustrates this.

In Lehnert non-union members challenged various union expenditures,
including "lobbying activities related not to the ratification or
implementation of a dissenter's collective-bargaining agreement, but to
financial support of the employee's profession or of public employees
generally . . . ." Id. at 522 (plurality). In determining the
constitutionality of these expenditures, a plurality of the Court analyzed
the vital policy interests involved--labor peace and preventing free
riders--and concluded "[l]abor peace is not especially served by . . .
charging objecting employees for lobbying, electoral and other political
activities that do not relate to their collective-bargaining agreement."
Id. at 521. Lehnert further explained that labor peace would not be
furthered: "[B]ecause worker and union cannot be said to speak with one
voice, it would not further cause harmonious industrial relations to compel
objecting employees to finance union political activities as well as their
own." Id.

While labor peace is not at issue here, the above quotation illustrates the
importance of a common cause for justifying the compelled funding. In the
context of union cases, where the union and non- union members share a
common cause, a vital policy interest justified the compelled funding. But
where that was missing, the expenditure could not be justified. In this
case while there may be a common cause in education and shared governance,
there is no common cause between private organizations which engage in
political and ideological speech and the objecting students. Thus, we see
no vital policy interest supporting compelled funding of the private
associations. And we might even conclude that far from serving the school's
interest in education, forcing objecting students to fund objectionable
organizations undermines that interest. In some courses students are likely
taught the values of individualism and dissent. Yet despite the objecting
students' dissent they must fund organizations promoting opposing views or
they don't graduate.

The Regents also speak of a "free-rider" problem, claiming that because
private organizations must open their activities to all students, allowing
objecting students to withhold funding would result in a free-rider problem
similar to that acknowledged as a vital policy interest in Abood. Where, as
here, the Regents' own policy allows non- students to join registered
student organizations and attend campus activities, they cannot
legitimately claim a concern over free riders. Most student organizations
subject to this open-access policy receive no funds. Free riders might more
accurately describe those organizations that receive a share of the
mandatory fees.

Even if objecting students were labeled free riders, the basis underlying
the free-rider concern in Abood is absent here. In Abood, in holding that
an employee's free speech rights are not unconstitutionally burdened
because the employee opposes positions taken by a union in its capacity as
collective-bargaining representative, the Court clearly recognized that to
hold otherwise would create a free-rider problem. The reason a free- rider
problem exists in the context of unions, however, is significant (and in
the case of student organizations lacking): In the case of unions, the
government has imposed on unions the duty to fairly represent all
employees, including those who do not belong to the union, and these legal
requirements "often entail expenditure of much time and money." 431 U.S. at
221. Forcing non-union employees to fund the union's collective bargaining
agreement thus "counteracts the incentive that employees might otherwise
have to become free riders--to refuse to contribute to the union while
obtaining benefits of union representation that necessarily accrue to all
employees." Id. at 222.

Conversely, here the private organizations which the plaintiffs object to
funding do not act in a representative capacity for the students and have
no obligation to fairly represent the students, as the union does for
non-union members. Rather, the private organizations' advocacy and speech
further positions espoused by the organizations and their members. The
political and ideological activities of private organizations are not
limited to the university setting, and have ramifications that extend into
the diverse aspects of the student's life. In fact, many of the ideological
and political activities and speech to which the plaintiffs object occurred
off-campus, further limiting the benefit to objecting students. These
differences make the free-rider concern inapplicable here.10 See also
Ellis, 466 U.S. at 452 (holding that the union could not force non- union
employees to fund the recruitment of workers outside the bargaining unit
because it did not implicate a free-rider concern: "the free rider Congress
had in mind was the employee the union was required to represent and from
whom it could not withhold benefits obtained for its members. Non-
bargaining unit organization is not directed at the employee."); Lehnert,
500 U.S. at 521 (rejecting union's free-rider justification for lobbying
expenditures, holding that the free-rider concern is inapplicable because
"[t]he balancing of monetary and other policy choices performed by
legislatures is not limited to the workplace but typically has
ramifications that extend into diverse aspects of an employee's life.").

3. Burdening of free speech.

Even if the Regents could satisfy the first and second prongs, they cannot
satisfy Lehnert's third and final prong by proving that the forced funding
does not "significantly add[ ] to the burdening of free speech inherent in
achieving those interests." This prong recognizes that any time the
government forces individuals to fund private organizations, a burden on
free speech and association may incidentally result, but that burden may be
justified by an important governmental interest. Assuming there is a vital
governmental interest in funding (which we have concluded there is not),
the question then becomes whether a specific expenditure adds to the burden
on speech inherent in the mandated funding of the organization in the first
instance. If it does, funding those expenditures cannot constitutionally be
required even if it is germane to an organization's mission.

In determining whether using compelled fees to fund a private organization
which engages in political and ideological activities "significantly adds
to the burdening of free speech," we are again guided by Lehnert. In
Lehnert, the Court held that funding political lobbying and using objecting
employees' funds to garner public support "present[s] additional
'interference with the First Amendment interests of objecting employees.'"
500 U.S. at 521-22 (internal citation omitted). In doing so, the Court
explained:

[t]he burden upon freedom of expression is particularly great where, as
here, the compelled speech is in a public context. By utilizing
petitioners' funds for political lobbying and to garner the support of the
public in its endeavors, the union would use each dissenter as "an
instrument for fostering public adherence to an ideological point of view
he finds unacceptable." [Wooley v.] Maynard, 430 U.S. 705, 715 (1977). The
First Amendment protects the individual's right of participation in these
spheres from precisely this type of invasion. Where the subject of
compelled speech is the discussion of governmental affairs, which is at the
core of our First Amendment freedoms, the burden upon dissenters' rights
extends far beyond the acceptance of the agency shop and is
constitutionally impermissible.

Id. at 522 (plurality). The Court further explained that "[a]lthough First
Amendment protection is in no way limited to controversial topics or
emotionally charged issues, the extent of one's disagreement with the
subject of compulsory speech is relevant to the degree of impingement upon
free expression that compulsion will effect." Id. at 521-22.

If there was any doubt, Lehnert makes clear that the Regents' policy cannot
stand. Here the burden on objecting students' speech "is particularly
great"; the private organizations use the funds to "garner the support of
the public in its endeavors," and as "an instrument for fostering public
adherence to an ideological point of view" which the students find
objectionable. "The degree of impingement upon free expression that the
compulsion will effect" is also especially severe given the extent and
source of the students' disagreement with the speech engaged in by the
organizations which receive their fees. In this case, the speech to which
the plaintiffs object includes such emotionally charged issues as abortion,
homosexuality, and the United States' democratic system. The source of the
plaintiffs' disagreement, as explained at length in their affidavits, is
their deeply held religious and personal beliefs.

Notwithstanding these deep-seated beliefs, the Regents attempt to justify
forcing the objecting students to fund these organizations because without
funding less speech will result, and less controversial speech, and
according to the Wisconsin Assistant Attorney General at oral argument,
"hateful speech has a place in our society too." That may well be true, but
the Constitution does not mandate that citizens pay for it. See Regan v.
Taxation With Representation of Wash., 461 U.S. 540 (1983) ("Although TWR
does not have as much money as it wants, and thus cannot exercise its
freedom of speech as much as it would like, the Constitution 'does not
confer an entitlement to such funds as may be necessary to realize all the
advantage of that freedom.'"). See also, Thomas Jefferson, Notes on the
State of Virginia 233 (2d Amer. ed., 1794) ("[I]t is error alone which
needs the support of government. Truth can stand for itself."). In fact it
guarantees the opposite--that "we the people" will not be compelled to pay
for such speech: "[T]o compel a man to furnish contributions of money for
the propagation of opinions which he disbelieves, is sinful and
tyrannical." Abood, 431 U.S. at 234-35 n.31 (quoting Irving Brant, James
Madison: The Nationalist 354 (1948)). Yet that is exactly what the Regents
do, and to support this policy they again point to the educational benefits
flowing from the very speech to which the plaintiffs so strenuously object.
That by its nature is an interest in the compelled funding of private
speech, which "significantly adds to the burdening of free speech."11

One of the Supreme Court's more recent compelled- funding cases, Glickman
v. Wileman Bros. & Elliott, 117 S.Ct. 2130 (1997), confirms our conclusion.
In Glickman, a number of growers, handlers, and processors ("respondents")
of California tree fruits challenged the constitutionality of various
regulations contained in marketing orders which the Secretary of
Agriculture promulgated pursuant to the Agricultural Marketing Agreement
Act of 1937. The orders at issue imposed assessments on the respondents
that covered the costs of administrative expenses and included the cost of
generic advertising of California nectarines, plums, and peaches. The
respondents argued to the Supreme Court that compelled funding of such
generic advertising abridged their First Amendment rights. In a 5-4
decision, the Supreme Court upheld the marketing orders. In upholding the
assessment, the Supreme Court relied on three characteristics of the
regulation scheme at issue to distinguish it from laws that [the Court has]
found to abridge the freedom of speech protected by the First Amendment.
First, the marketing orders impose no restraint on the freedom of any
producer to communicate any message to any audience. Second, they do not
compel any person to engage in any actual or symbolic speech. Third, they
do not compel the producers to endorse or to finance any political or
ideological views. (Citing Abood and Keller.) Id. at 2138.

The third characteristic, that the assessment does "not compel the
producers to endorse or to finance any political or ideological views,"
id., proved of the utmost significance to the Court's ruling. Throughout
its opinion, the Court reiterated the last distinction--that the orders "do
not compel the producers to endorse or to finance any political or
ideological views." See, e.g., id. at 2140 (the germaneness test is clearly
satisfied because the generic advertising is unquestionably germane to the
purposes of the marketing orders and "in any event, the assessments are not
used to fund ideological activities."). In fact, the Court used the absence
of political and ideological speech to distinguish Abood:

However, Abood, and the cases that follow it, did not announce a broad
First Amendment right not to be compelled to provide financial support for
any organization that conducts expressive activities. Rather, Abood merely
recognized a First Amendment interest in not being compelled to contribute
to an organization whose expressive [activities] conflict[ ] with one's
"freedom of belief." . . . Relying on our compelled speech cases, however,
the Court found that compelled contributions for political purposes
unrelated to collective bargaining implicated First Amendment interests
because they interfere with the values lying at the "heart of the First
Amendment--the notion that an individual should be free to believe as he
will, and that in a free society one's beliefs should be shaped by his mind
and his conscience rather than coerced by the State." (quoting Abood, 431
U.S. at 234-35). Here, however, requiring respondents to pay the
assessments cannot be said to engender any crisis of conscience. Id. at
2139.

The very factors the Court used to distinguish Abood, however, in this case
compel the opposite result. The students, like the objecting union members
in Abood, have a First Amendment interest in not being compelled to
contribute to an organization whose expressive activities conflict with
one's "freedom of belief." Glickman, 117 S.Ct. at 2139. And here, unlike
Glickman, requiring the students to pay the mandatory student activity fees
does engender a crisis of conscience. Glickman, 117 S.Ct. at 2130. Finally,
in the words of the Glickman Court: "compelled contributions for political
purposes . . . implicated First Amendment interests because they interfere
with the values lying at the 'heart of the First Amendment[--]the notion
that an individual should be free to believe as he will, and that in a free
society one's beliefs should be shaped by his mind and his conscience
rather than coerced by the State.'" Id. at 2139 (quoting Abood, 431 U.S. at
234-35).12 In essence, allowing the compelled funding in this case would
undermine any right to "freedom of belief." We would be saying that
students like the plaintiffs are free to believe what they wish, but they
still must fund organizations espousing beliefs they reject. Thus, while
they have the right to believe what they choose, they nevertheless must
fund what they don't believe.

The Regents respond with a barrage of arguments, none of which have merit,
or merit much attention. First, the Regents contend that the district court
improperly applied a mixed strict- scrutiny/germaneness analysis. The
district court did intermingle these two tests. However, we review this
case de novo and have applied the Lehnert analysis, so any error on the
district court's part is harmless.13

The Regents next argue that there is no evidence that the student activity
fees were used to fund the actual political or ideological activities the
organizations promoted. However, the Supreme Court rejected this argument
in Abood, 431 U.S. at 237 n.35 (holding that "[i]t is plainly not an
adequate remedy to limit the use of the actual dollars collected from
dissenting employees to collective- bargaining purposes"). Therefore,
whether or not the student fees directly fund the political or ideological
activities is irrelevant; the First Amendment is offended by the Regents'
use of objecting students' fees to subsidize organizations which engage in
political and ideological activities. This also means that the Regents
cannot earmark the objecting students' activity fees to fund non-political
organizations and then continue to distribute the same amount of funding to
the political and ideological organizations albeit with funds in "name"
paid by non-objecting students. This too is merely a bookkeeping matter,
with the end result being that the objecting student subsidizes the
political and ideological activities of the organization. Abood, 431 U.S.
at 237 n.35. The dollars are fungible and splitting the same amount in two
directions does not cure the obvious subsidy.

The Regents next argue that because the organizations do not purport to
speak for all students, the First Amendment is not violated. This is
irrelevant. The First Amendment protects the right to free speech and the
corresponding right not to be compelled to fund private speech. These
rights are premised on an individual's freedom to say what he wants to say
and conversely not say what he does not want to say. It matters not whether
a third party attributes the private organization's political and
ideological views to the objecting student.

The Regents also attempt to distinguish this case from Abood and Keller by
arguing that here the objecting students can work through the democratic
process, whereas in the union and bar association cases that remedy was not
available. While it is true that the teachers in Abood were not members of
the union, and therefore did not have a role in electing union leaders, in
Keller the objecting attorneys were required to be members of the state bar
association and therefore were able to work within the democratic system.
Given that Keller did not distinguish itself from Abood on this basis, we
won't either. Actually, there is a more basic flaw in the Regents' reliance
on the democratic nature of student representation: The First Amendment
trumps the democratic process and protects the individual's rights even
when a majority of citizens wants to infringe upon them.14

Finally, the Regents rely on Buckley v. Valeo, 424 U.S. 1 (1976), and
Libertarian Party of Indiana v. Packard, 741 F.2d 981 (7th Cir. 1984), to
argue that as the government they can use the student activity fees to fund
private organizations even if those organizations engage in political and
ideological activities and speech. However, both those cases involved the
legislature's appropriation of public funds raised through taxation. In
Buckley, Congress appropriated income tax revenue to fund political
organizations, while in Libertarian Party Indiana's legislature
appropriated money generated by what in effect constituted a sales tax. 741
F.2d at 990. The student activity fee, however, does not equate to a tax.
Rosenberger made this clear, stating that "the $14 paid each semester by
the students is not a general tax designed to raise revenue for the
University. . . . Our decision, then, cannot be read as addressing an
expenditure from a general tax fund." Rosenberger, 515 U.S. at 841. See
also, 515 U.S. at 851-52 (O'Connor, concurring) ("The Student Activities
Fund, then represents not government resources, whether derived from tax
revenue, sales of assets, or otherwise, but a fund that simply belongs to
the students."). Therefore, Buckley and Libertarian Party are inapposite.

In sum, we conclude that the Abood and Keller analysis, as explained in
Lehnert, governs the students' First Amendment challenge of the Regents'
mandatory student fee policy. The Regents have failed to sustain their
burden under this three- prong analysis; even if funding private political
and ideological organization is germane to the university's mission, the
forced funding of such organizations significantly adds to the burdening of
the students' free speech rights. Therefore, the Regents cannot use the
allocable portion of objecting students' mandatory activity fees to fund
organizations which engage in political or ideological activities,
advocacy, or speech. We also hold that the 18 challenged private
organizations engage in ideological and political activities and speech,
and cannot be constitutionally funded with objecting students' fees.15

B. Injunctive Relief

The district court ordered "that the defendants, their officers, employees
and other agents shall forthwith cease the funding of private groups that
engage in ideological or political advocacy." The district court further
ordered that the Regents publish written notice of organizations engaging
in political or ideological speech, and the pro rata share of mandatory
fees devoted to these organizations, and that the Regents establish an
arbitration proceeding for disputes over the amount of fees paid and the
nature of the organizations involved.

In issuing the injunction, the district court properly rejected the
Regents' proposed procedure for compliance--a refund mechanism. In Ellis,
466 U.S. at 443-45, the Supreme Court held (in the union context) that a
pure rebate approach inadequately protects the constitutional rights of
objecting employees:

By exacting and using full dues, then refunding months later the portion
that it was not allowed to exact in the first place, the union effectively
charges the employees for activities that are outside the scope of the
statutory authorization. The cost to the employee is, of course, much less
than if the money was never returned, but this is a difference of degree
only. The harm would be reduced were the union to pay interest on the
amount refunded, but respondents did not do so. Even then the union obtains
an involuntary loan for purposes to which the employee objects.

In arguing in support of the refund mechanism, the Regents assert various
administrative problems, and contend that it will be impossible to
determine the appropriate refund, given that each year the student
government determines the level of funding of various activities. But these
same administrative burdens face unions and bar associations, and yet the
Supreme Court has refused to allow a rebate system to stand: "The only
justification for this union borrowing would be administrative convenience.
. . . Given the existence of acceptable alternatives, the union cannot be
allowed to commit dissenters' funds to improper uses even temporarily." Id.
See also, Hudson, 475 U.S. at 305 ("[A] remedy which merely offers
dissenters the possibility of a rebate does not avoid the risk that the
dissenters' funds may be used temporarily for an improper purpose. . . .
For, whatever the amount, the quality of respondents' interest in not being
compelled to subsidize the propagation of political or ideological views
that they oppose is clear.").16

ut we agree with the Regents that the order is overbroad in some respects.
The district court's order enjoining the university from "funding private
groups that engage in ideological or political advocacy" applies to both
objecting students and non-objecting students, but the plaintiffs pursued
only a challenge to contributions made with objecting students' fees.
Similarly, the district court's mandate that the Regents "may use mandatory
segregated fees only for activities reasonably intended to promote its
educational mission by providing opportunities and fora for the free
expression of diverse viewpoints," fails to limit itself to those fees paid
by objecting students. Moreover, the plaintiffs in this case did not argue
that the Regents cannot use any mandatory segregated fees to fund student
activities--they only objected to the use of objecting students' fees, and
then only to fund organizations which engage in their own political and/or
ideological speech, activities, and advocacy. They did not object to the
use of student fees to fund services or student activities which do not
involve political or ideological speech and advocacy. Because this portion
of the injunction, as worded, goes too far, it cannot stand.17

The injunction also establishes rather detailed and specific procedures
which the Regents must undertake to administer the distribution of
mandatory student activity fees. While it is appropriate to issue an
injunction stating what the state cannot do, federalism requires caution in
ordering states what to do. We recognized this point in ACORN v. Edgar, 56
F.3d 791, 797 (7th Cir. 1995). In ACORN, the district court entered an
injunction which enjoined state officials from refusing to comply with the
law, but also set forth specific details in the form of a mandatory
injunction. We concluded that the injunction "failed to exhibit an adequate
sensitivity to the principle of federalism," id. at 798, explaining that
"federal judicial decrees that bristle with interpretive difficulties and
invite protracted federal judicial supervision of functions that the
Constitution assigns to state and local government are to be reserved for
extreme cases of demonstrated noncompliance with milder measures." Id. We
then reversed the injunction stating that "until it appears that the state
will not comply with [an injunction commanding compliance with the law],
there is no occasion for the entry of a complicated decree that treats the
state as an outlaw and requires it to do even more than the 'motor voter'
law requires." In other words, detailed mandatory injunctions "are last
resorts, not first." Id.

Moreover, "[w]hile a district court has wide discretion in fashioning a
remedial injunction, such discretion is not without constraints. Prominent
among these restraints is the principle of federalism: 'federal courts in
devising a remedy must take into account the interests of state and local
authorities in managing their own affairs. . . .'" Consumer Party v. Davis,
778 F.2d 140, 146 (3d Cir. 1985). Considerations of comity and federalism
require that injunctive relief against a state be no broader than necessary
to remedy the constitutional violation. Lewis v. Casey, 518 U.S. 343,
362-63 (1996). See also Clark v. Coye, 60 F.3d 600, 604 (9th Cir. 1995)
("[I]n reviewing a district court's injunction against an agency of state
government, we scrutinize the injunction closely to make sure that the
remedy protects the plaintiffs' federal constitutional and statutory rights
but does not require more of state officials than is necessary to assure
the compliance with federal law."); Toussaint v. McCarthy, 801 F.2d 1080,
1087 (9th Cir. 1986) ("[I]njunctive restraints that exceed constitutional
minima must be narrowly tailored to prevent repetition of proved
constitutional violations, and must not intrude unnecessarily on state
functions."). This is especially true in the context of education, which by
its very nature is a local concern.

The district court's injunction went much further than enjoining the
Regents from using objecting students' mandatory activity fees to fund
organizations which engage in political and ideological activities--the
injunction set forth detailed measures which the Regents must undertake.
Because the Constitution does not mandate this exact procedure, and because
the state has not yet refused to comply with a general negative
injunction--saying what the State cannot do-- paragraphs two through five
of the injunction cannot stand.

In addition to the above issues regarding the injunction, the plaintiffs
contend that the injunction should have specifically provided that each
individual student, and not the University, "must have the final decision
as to whether to fund an advocacy group or not before any fees are paid to
the University," and that "[t]he University may not define private groups'
advocacy as a 'service' to other students in order to require students to
fund those groups." We do not think that the district court erred by
failing to specifically state the above. However, we reiterate that under
our holding above, the University cannot even temporarily collect from
objecting students the portion of the fees which would fund organizations
which engage in political and ideological activities, speech, or advocacy,
whether or not the organization also provides some a service in doing so.

III. CONCLUSION

Under the Lehnert analysis, the Regents' mandatory student fee policy
cannot stand. Funding of private organizations which engage in political
and ideological activities is not germane to a university's educational
mission, and even if it were, there is no vital interest in compelled
funding, and the burden on the plaintiffs' First Amendment right to
"freedom of belief" outweighs any governmental interest. We therefore hold
that the Regents cannot use the allocable portion of objecting students'
mandatory activity fees to fund organizations which engage in political or
ideological activities, advocacy, or speech, and they are hereby enjoined
from doing so. The Regents, however, are free to devise a fee system
consistent with our opinion and Supreme Court precedent; we will not
mandate one at this time.

AFFIRMED IN PART,
REVERSED IN PART,
VACATED IN PART.



FOOTNOTES

* This is a successive appeal to No. 97-1001, which was argued on June 14,
1997, and which we dismissed for lack of jurisdiction. Southworth v. Grebe,
124 F.3d 205 (7th Cir. 1997) (unpublished order).

1. The Supreme Court declared the RFRA unconstitutional in City of Boerne
v. P.F. Flores, Archbishop of San Antonio, 117 S.Ct. 2157 (1997).

2. Because of the need to abbreviate the various student groups by
letters/acronyms, we insert for convenient reference: ASM þ Associated
Students of Madison; GSSF þ General Student Service Fund; SSFC þ Student
Services Finance Committee.

3. The Regents try to shoehorn this case into Rosenberger. However, as the
Court made abundantly clear, it considered only the disbursement of student
activity fees; it did not consider the constitutionality of forcing
students to fund private political and ideological organizations.
Rosenberger, 515 U.S. at 840.

4. Actually, the concept of "germaneness" derived from Railway Employees v.
Hanson, 351 U.S. 225, 235 (1956), wherein the Supreme Court held that only
expenditures "germane to collective bargaining" were chargeable to
dissenting employees under the Railway Labor Act (as opposed to the First
Amendment).

5. In Lehnert, five justices adopted the three-prong analysis set forth
above, although only four of those five justices agreed on the application
of the factors; four justices believed that the challenged lobbying was not
germane to collective bargaining, while one justice thought that it was.
That is nonetheless the Court's holding. Marks v. United States, 430 U.S.
188, 193 (1977) ("When a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of five Justices, 'the
holding of the Court may be viewed as that position taken by those Members
who concurred in the judgments on the narrowest grounds'. . . .") (internal
citation omitted). The remaining four justices also concluded that the
lobbying activities could not be financed, but applied a "statutory duties
test" instead of the three-prong analysis. Lehnert, 500 U.S. at 558
(Scalia, concurring in part, dissenting in part).

6. Carroll I required that NYPIRG "spend[ ] the equivalent of the students'
contribution on campus," 957 F.2d at 1002, while Carroll II refined the
holding to require that NYPIRG spend the equivalent on "activities that
foster a 'marketplace of ideas' on the [State University of New York]
campus; (2) activities that provide SUNY Albany students with hands-on
educational experiences; and (3) extra-curricular activities for SUNY
Albany students, both on and off the Albany campus, that fulfill SUNY
educational objectives." 42 F.3d at 128.

7. Galda (and Carroll for that matter) involved limited challenges to
compelled funding of PIRG, and did not address the specific question
presented here. 772 F.2d at 1064. Nonetheless, we believe the same analysis
should govern private student organizations.

8. The Regents also cite Hays County Guardian v. Supple, 969 F.2d 111, 123
(5th Cir. 1992), and Kania v. Fordham, 702 F.2d 475, 481 (4th Cir. 1983).
These cases held that a university could constitutionally fund student
newspapers with mandatory student activity fees. We need not consider the
correctness of those decisions because the plaintiffs have not challenged
the funding of the student newspaper.

9. The Regents fail to consider the latter two prongs of Lehnert (arguably
waiving the argument--in fact the Regents do not even cite Lehnert in their
briefs on appeal). We nonetheless proceed with this analysis, as set forth
by the Supreme Court.

10. The Regents also seem to argue that because all students benefit from
"robust debate," the objecting students are also free riders. While
arguably non-speakers benefit from the additional speech, that is not
enough: "[P]rivate speech often furthers the interests of nonspeakers, and
that does not alone empower the state to compel the speech to be paid for."
Lehnert, 500 U.S. at 556 (Scalia, concurring).

11. The compulsion which Madison condemned is of heightened concern
following Rosenberger, 515 U.S. 819 (1995), because under Rosenberger it
would seem that if the university opens up funding to private organizations
it must fund not only the Socialists and the Greens, but the Republicans,
the Democrats, the KKK, Nazis, and the skinheads; the Nation of Islam, the
Christian Coalition, and Catholic, Protestant, Jewish, and Islamic
organizations. To others, this engenders a "crisis of conscience." For
example, when a Christian campus group sought an ASM operations grant, the
Ten Percent Society opposed it, contending that it would be illegal and
unconstitutional to fund the proselytizing and anti-homosexual advocacy of
this Christian organization.

If the university cannot discriminate in the disbursement of funds, it is
imperative that students not be compelled to fund organizations which
engage in political and ideological activities--that is the only way to
protect the individual's rights. The Regents themselves recognized this
important First Amendment concern in passing the University of Wisconsin
Financial Policy and Procedure Paper No. 20 which prohibited the use of
student activities fees to fund "activities that are politically partisan
or religious in nature." As the Regents explained in their reply brief:
"The UW-Madison, like the University of Virginia whose policy was
challenged in Rosenberger, believed at the time that the policy was adopted
that it was required to protect students' rights under the First
Amendment." The Regents properly recognized the need to protect objecting
students' rights under the First Amendment, and that need still exists
following Rosenberger--in fact it is now more acute.

12. In Glickman, four justices concluded that the First Amendment protects
against the government compelling individuals to fund private speech
whether or not the speech at issue is political or ideological. 117 S.Ct.
2147 (Souter, dissenting). So in Glickman, all nine justices rejected as
unconstitutional the compelled funding of political and ideological views.

13. Conversely, the plaintiffs assert that strict scrutiny is the correct
standard of review. However, because the plaintiffs win under the Lehnert
analysis, the plaintiffs cannot complain as to the standard of review.
Moreover, while the Lehnert analysis derived by the Supreme Court from
Abood and Keller appears to be the appropriate test (as recognized by
Rosenberger), we note that the Regents' policy also cannot survive the more
exacting strict scrutiny standard.

14. Also, what good does it do objecting students to work within the
democratic process? Even if the objecting students run for, or obtain
representation on the ASM, once there they cannot de-fund organizations
whose viewpoint they opposed. Rosenberger, 515 U.S. at 833.

15. As a result of our decision, we need not consider what the association
clause of the First Amendment would add to the students' claim. We also
need not consider the plaintiffs' free exercise claim, which was dismissed
by the district court as moot.

16. Hudson also made clear that nonmembers must be provided adequate
information about the basis for the proportionate share, and "given
sufficient information to gauge the propriety of the union's fee," and that
the union must provide for a reasonably prompt decision by an impartial
decision maker concerning the propriety of the fees. Recently, the Supreme
Court reaffirmed these procedural protections in Air Line Pilots
Association v. Miller, 118 S.Ct. 1761 (1998), while also holding that
objectors need not exhaust an arbitration remedy before bringing claims in
a federal court, unless they had agreed to do so. These same constitutional
requirements apply equally to the University of Wisconsin.

17. The declaratory judgment likewise included this overbroad language, and
to the extent it is inconsistent with our holding today, it is also
vacated. For clarity, we again stress that the fees need not be directly
used for the political or ideological activities; the Regents cannot use
the objecting students' funds to subsidize organizations which engage in
political and ideological activities.


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