voter guides from the campus environmentalists,rn”abortion rights” advocacyrnfrom the university’s Women’s Center,rnpornographic pictures and sexuallyrnexplicit literature from the residentrnpro-homosexual organizations, and evenrna videotape of a protest at which thernInternational Socialist Organizationrnhelped to disrupt a talk (at a localrnchurch) opposing homosexuality. Withrnthis mountain of previously unexposedrnevidence, we filed the suit on April 2,rn1996, in federal district court.rnOur allegations that the university violatedrnour rights to freedom of speech,rnfreedom of association, and the free exercisernof our religious beliefs were rebukedrnby the university and those organizationsrnwhich received funding. Name-callingrnensued. Three ACLU supporters labeledrnus “bigots” in a letter to a campus newspaper.rnMany students verbally attackedrnAmy in the law school, and I had a meetingrnwith the dean to discuss our physicalrnsafety on campus.rnThe fall of 1996 found us engaged inrndepositions, evidence collection, andrnbrief writing, and by early October 1996,rnall of the briefs lay on the desk of JudgernJohn Shabaz. Both sides knew that norntrial would be necessary, since no materialrnfacts were in dispute. The legal opinionrnof the judge, in the form of a “summaryrnjudgment,” would provide therndecision we needed. In the brief supportingrnits motion for summary judgment,rnthe university argued that its educationalrnmission included the funding ofrnstudent advocacy. We countered thatrnthe university’s mission could not extendrnso far as to violate students’ First Amendmentrnrights.rnOn November 29,1996, Judge Shabazrngranted our motion for summary judgment.rnNoting that the university compelledrnstudents to fund the advocacy ofrnprivate political and ideological groups,rnhe held the system unconstitutional as arnviolation of the First Amendment rightsrnto freedom of speech and association.rnSince the system stood as unconstitutionalrnon these grounds, he did not reachrna ruling on the free exercise claims.rnNot surprisingly, the university appealedrnin mid-December to the SeventhrnCircuit Court of Appeals, which holdsrnjurisdiction over Wisconsin, Illinois, andrnIndiana. Though the leftists on campusrnlauded the decision to appeal, they werernnot alone. We also approved of the decision,rnbecause a circuit opinion not onlyrncarries more weight but also affects arnlarger group of would-be defendantsrn(namely, the University of Illinois andrnthe University of Indiana).rnLegal theories become much morernimportant than facts at the appellate level.rnJordan taught me this well, and in laternFebruary he called me to discuss a newrnlegal theory that he had developed forrnthe case—one that combined two seeminglyrndichotomous lines of cases createdrnover decades of litigation in the UnitedrnStates Supreme Court.rnThe first line of cases we call thernAbood-Keller. Abood and Keller involvedrnthe payment of dues to a union and a barrnassociation, respectively. The CaliforniarnSupreme Court, in a case involving thernmandatory student fee at the Universityrnof California, summarized the principlesrnof these cases: “Keller and Abood teachrnthat the state may compel a person tornsupport an organization if there is a sufficientlyrncompelling reason to do so, andrnthat the organization’s use of mandatoryrncontributions must be germane to thernpurposes that justified the requirementrnof support.” In other words, unions andrnbar associations cannot compel membersrnto fund nongermane advocacy.rnThe second line of cases, the Widmar-rnRosenberger, involve the concept of thern”open forum” on university campuses.rnWidmar held that the university couldrnnot deny access to the physical forumrncreated by the university (classrooms,rnkiosks, etc.) because of a student group’srnideology. Rosenberger (decided in Junern1995) held that the university could notrndeny a group access to the pool of moneyrncreated through student fees (a metaphysicalrnforum). Of course, there is a differencernbetween the physical and metaphysicalrnforums; namely, the physicalrnforums have primary purposes otherrnthan subsidizing the advocacy of any particularrngroup.rnThough both lines of cases stoodrnalone, what the United States SupremernCourt had not yet decided was the issuernwe presented: What to do when a studentrndoes not wish to pay into the metaphysicalrnforum, which directly funds politicalrnand ideological advocacy? JusticernO’Connor had hinted at this problem inrnher concurring opinion in Rosenberger:rn”Finally, although the question is notrnpresented here, I note the possibility thatrnthe student fee is susceptible to a FreernSpeech Clause challenged by an objectingrnstudent that she should not be compelledrnto pay for speech with which sherndisagrees.”rnJordan combined both lines of cases torndetermine that the university has a dutyrnto implement both the Abood-Keller andrnthe Widmar-Rosenberger principles: inrnother words, the university may not denyrnaccess to the physical or metaphysical forumsrncreated, but they also cannot compelrnstudents to pay into the metaphysicalrnforum against their wishes. In Jordan’srnwords, “No exclusions due to viewpoints,rnno compulsions due to viewpoints.”rnThis new legal theory recently had itsrnfirst test at the Seventh Circuit. Arguingrnon June 4, 1997, Jordan eloquently explainedrnthis new theory to a three-judgernpanel in Chicago. Notwithstanding thernlogic of our argument, the university insistedrnthat its educational mission layrnbroadly enough to require compellingrnthe fee. However, Judge Manion, thernpresiding judge during oral arguments,rnasked the attorney representing the universityrnif a black student would have tornfund a Ku Klux Klan organization, or if arnJewish student would be forced to contributernto a Nazi group. The universityrnresponded in the only way it could:rn”Yes.” With that answer, the policy appearedrnas draconian and unconstitutionalrnas it ever had.rnWho defines what is “political” orrn”ideological”? Each individual. No privaternschool group on campus needs lifernsupport from the student government.rnIf an organization cannot survive in thernmarketplace of ideas, then it deservesrndissolution.rnWe are not arguing that the universityrndoes not have an interest in promoting arndiversity of opinions. However, even thernuniversity understands that promotingrnan environment where students can expressrncompeting viewpoints can only gornso far. In fact, university policy excludesrnall religious groups and both the Democraticrnand Republican organizationsrnfrom funding. Of course, the solution torna bad system is not to make it worse.rnFunding all organizations on campusrnwould only serve to increase the numberrnof people suffering a violation of theirrnconstitutional rights.rnThe answer is simple: stop funding privaterngroups. We do not oppose an “optrnin” system on campus, which would operaternmuch like the Combined FederalrnCampaign, allowing students to have arncertain amount of money added to theirrnfee/tuition bill and then distributed tornthe groups of their choosing. However,rnany system which operates to take moneyrnfrom students against their will cannotrnSEPTEMBER 1997/45rnrnrn