Erratum

[Conkle, Daniel O.]

Please ignore my second, parenthetical paragraph, which, on second thought,
is oversimplified at best, if not simply wrong.  Sorry; I was too quick to
hit the "send" button.  - Dan Conkle

-----Original Message-----
From: Conkle, Daniel O. [mailto:conkle at indiana.edu]
Sent: Thursday, November 11, 1999 11:49 AM
To: CONLAWPROF at LISTSERV.UCLA.EDU
Subject: compelled student fees case


According to the NY Times, Justices O'Connor and Ginsburg raised questions
relating to the fact that public universities, using tuition dollars, pay
for all kinds of things that individual students surely resent on political
grounds (e.g., they pay the salary of professors who advance controversial
ideas and theories, etc.).  Is tuition different than mandatory student
fees?   If so, could the university simply use tuition dollars to fund
student groups, etc.?

(And on the issue of neutral distribution of funding, I assume that
universities, using tuition dollars, are free (subject perhaps to very
limited restrictions) to engage in content- and even viewpoint-based
discrimination.)

Dan Conkle
**********************************
Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail conkle at indiana.edu
**********************************



-----Original Message-----
From: Ann Althouse [mailto:althouse at FACSTAFF.WISC.EDU]
Sent: Thursday, November 11, 1999 11:24 AM
To: CONLAWPROF at LISTSERV.UCLA.EDU
Subject: Re: Any word on the oral argument in the compelled student fees
case, the Driver's Privacy Protection Act case, or the nude dancing redux
case?


 [snip]


As to Southworth, the student fees case, which originated here at my law
school, I understand from news reports and from the report ofmy student who
attended the oral arguments, that the lawyer for the University had a
difficult time attempting to respond to confusing questions that came from
lots of different directions. My student had the impression that only
Justice Ginsburg seemed sympathetic to the University's argument.


It seems crucial to the University's case to persuade the Court that the
funding of student groups is analytically equivalent to building a speaker's
platform: that it's a neutral forum. I think the Justices had difficulty
believing that funding is like building a forum and believing that the
system is handled neutrally.


I attended a forum on the Southworth case here at the law school last month
and heard the University's lawyer discuss the arguments. Then, it appeared
that everyone was assuming that the system did hand out the money in a
neutral way, though I was not sure how that issue had dropped out of the
case. Based on the argument, it looks like the neutrality issue is in play.
Some of the money is handed out based on a student referendum, and Justice
Breyer noted the first amendment idea of protecting unpopular speach and
said "a referendum would seem to protect the views that are popular."


Also, there is a problem with the University's attempt to make the system
legal by screening out the really political groups: this step is key to
characterizing the student groups as within the scope of the University's
educational mission (see the labor union dues cases). But Justice Souter
said "The core first amendment value is in political speech. If you're
excluding hat kind, what does that do to your forum analysis?" Thus, the
University might be seen as needing to advocate two inconsistent
propositions.


If Souter and Breyer are against the University, it is almost certain to
lose the case.





Ann Althouse

Arthur-Bascom Professor of Law

University of Wisconsin

Madison, Wisconsin 53706