The U.S. Supreme Court, many had hoped, would use this term to clarify constitutional law and move jurisprudence somewhat closer to the original understanding of the Constitution. The Court has yet to issue important opinions regarding school vouchers, partial-birth abortion, the Violence Against Women Act, and prayer at high school football games, but the latest First Amendment decision to be released has sent an alarming signal.

It’s my duty as Chronicles‘ legal affairs editor to interpret the Court’s decisions for you, and part of that job is to predict how the Court will rule. In an earlier article, I indicated that the Supremes would probably nix the University of Wisconsin’s policy of using mandatory student fees to subsidize ideological speech, but I’ve been proved wrong—and by a nine to zero vote, no less. I’m not alone, however. The Wisconsin Federal District Court judge who first heard the case got it wrong, too, as did the three judges on the panel of the U.S. Court of Appeals for the Seventh Circuit. All opined that mandatory student fees of this type were “coerced speech” and therefore impermissible under the First Amendment.

Previous Supreme Court decisions had held that non-union teachers could not be compelled to pay “service fees” that teachers’ unions use to fund political activities, and that lawyers who are compelled to join state bar associations could prevent their dues from being used to fund such activities. In both cases, the Court ruled that the political activities were not “germane” to the purpose of the organization in question (collective bargaining, in the case of teachers’ unions; “regulating the legal profession and improving the quality of legal services,” in the ease of bar associations).

The Seventh Circuit Court of Appeals, following these precedents, observed that the mandatory fee program funded such student organizations as the Wisconsin Student Public Interest Research Group; the Lesbian, Gay, Bisexual Campus Center; the UW Greens; the Madison Aids Support Network; the International Socialist Organization; and the Ten Percent Society’. These groups, the Seventh Circuit noted, lobbied Congress and Hie Wisconsin legislature, developed voter guides, supported bills to limit mining in Wisconsin, promoted Ralph Nader’s Green Party candidacy for president, and even advocated the overthrow of the “capitalist system.” The Seventh Circuit concluded, “germaneness cannot be read so broadly as to include forced funding of private political and ideological groups.”

Thus the district and appellate courts upheld the challenge brought by conservative students who objected to being required to underwrite ideological positions with which they disagreed. Perhaps the courts thought that it is the job of a university to educate students, not to force them to make contributions to ideological causes. Given precedent and the dubious nature and educational value of the compelled “speech” at issue, I predicted that the highest court in the land would concur. But no.

Said Mr. Justice Kennedy, writing for the Supreme Court, “To insist upon asking what speech is germane would be contrary to the very goal the University seeks to pursue. 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.” Elaborating, Justice Kennedy indicated that “The University may determine that its mission is well served if students have the means to engage in dynamic discussions of philosophical, religious, scientific, social, and political subjects in their extracurricular campus life outside the lecture hall. If the University reaches this conclusion, it is entitled to impose a mandatory fee to sustain an open dialogue to these ends.”

Justice Kennedy’s opinion did imply that a university could still run afoul of the First Amendment if it did not exercise “viewpoint neutrality” when funding student political action groups. His message to the plaintiff students was apparently to request funding to combat offensive speech with speech more to their liking; if they were still denied funding, then they could come back to the federal courts. A century and a half ago, when Chief Justice John Marshall decided the Dartmouth College case, he prevented the New Hampshire legislature from interfering with the college because he thought that it would be wrong for institutions of higher learning to become embroiled in partisan politics. Marshall’s successors seem to believe that partisan politics is more or less “the very goal the University seeks to pursue.”