Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 23 (2000)

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Cite as: 529 U. S. 217 (2000)

Souter, J., concurring in judgment

dom and autonomy that bars legislatures (and courts) from imposing conditions on the spectrum of subjects taught and viewpoints expressed in college teaching (as the majority recognizes, ante, at 232), we have never held that universities lie entirely beyond the reach of students' First Amendment rights.5 Thus our prior cases do not go so far as to control the result in this one, and going beyond those cases would be out of order, simply because the University has not litigated on grounds of academic freedom. As to that freedom and university autonomy, then, it is enough to say that protecting a university's discretion to shape its educational mission may prove to be an important consideration in First Amendment analysis of objections to student fees. Sweezy, supra, at 262-264 (Frankfurter, J., concurring in result); Ewing, supra, at 226, n. 12.

The second avenue for addressing Southworth's claim to a pro rata refund or the total abolition of the student activity fee is to see how closely the circumstances here resemble instances of governmental speech mandates found to require relief. As a threshold matter, it is plain that this case falls far afield of those involving compelled or controlled speech, apart from subsidy schemes. Indirectly transmitting a fraction of a student activity fee to an organization with an offensive message is in no sense equivalent to restricting or modifying the message a student wishes to express. Cf. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 572-574 (1995). Nor does it require an individual to bear an offensive statement personally, as in Wooley v. Maynard, 430 U. S. 705, 707 (1977), let alone to affirm a moral or political commitment, as in West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 626-629 (1943). In each of these cases, the government was imposing far more directly and offensively on an objecting individual than col-5 Indeed, acceptance of the most general statement of academic freedom (as in the South African manifesto quoted by Justice Frankfurter) might be thought even to sanction student speech codes in public universities.

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