Compelled to Pay, Compelled to Speak: Rethinking Mandatory Student Fees Post- Janus 

By Morgan Larson. 

Mandatory Student Programs Fees Are Unlawful 

Included in the list of mandatory tuition and fees for students enrolled at Arizona State University is a $35 fee labeled “Student Programs Fee.” The money from this fee funds registered student organizations (“RSOs”). The student government manages the distribution of funds at each campus location by reviewing funding requests from RSOs and dispersing the funds at its discretion. Many RSOs advocate for specific political and ideological views, such as Young Democrats, College Republicans, Students for Life, Reproductive Freedom for All, etc. Naturally, some students find the speech of certain RSOs objectionable, even offensive. The problem is not the diversity of thought but that students are forced to subsidize such speech, even if they vehemently disagree with it.  

Both the collection of the fee and the current dispersal process are unlawful. First, the compulsory nature of the fee constitutes compelled speech, which violates students’ First Amendment right to free speech. Second, even if the collection of the fee was deemed constitutional, the current fee dispersal process violates A.R.S. § 15-1626.01.

Historical Primer On Mandatory Student Fees

The constitutional right to free speech is an essential pillar of democracy. This right includes “both the right to speak freely and the right to refrain from speaking at all.” As Thomas Jefferson famously said, “[T]o compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.” Yet, for decades, universities across the country have levied mandatory fees against students. Hiding behind the guise that the fees are essential to facilitating the free and open exchange of ideas on campus, the fees have been largely unquestioned for nearly two decades.

This primarily stems from two landmark decisions addressing mandatory student fees. The first, Rosenberger, tackled how the funds from these fees should be distributed after they are collected—requiring universities to use a “viewpoint neutrality” standard for distributing such funds. The second, Southworth, concentrated on the antecedent question—the collection of mandatory student fees before they are distributed. The Southworth court reasoned that the university could justify the infringement so long as (1) the fee served to advance the school’s educational mission and (2) the school provided some First Amendment protections. This proposition was said to follow from Abood, which upheld the constitutionality of compelled public union fees against non-members for activities that advanced the union’s collective bargaining duties. Essentially, killing two birds with one stone, the Court in Southworth decided that viewpoint neutrality could serve as both the justification for “requiring the student to pay the fee in the first instance” and the protection mechanism “for ensuring the integrity of the program’s operation once the funds have been collected.” 

Arizona Lawmakers Attempt To Protect Students

Following the Southworth decision, students have been forced to pay mandatory student fees with no opportunity to object or direct where their money goes. However, this began to change following the October 7th attack on Israel, as Jewish students began experiencing unprecedented levels of antisemitism on their campuses, including ASU. Arizona lawmakers started questioning the mandatory Student Programs Fee and were troubled that students are effectively forced to fund RSOs, regardless of whether they approve of the RSOs’ speech. Representative Alexander Kolodin, a former Jewish student himself, stated in front of the Arizona House Education Committee: “As an American, I recognize that those who call for the destruction of the Jewish people have an absolute First Amendment right to do so . . . . What they do not have a right to do, however, is to make other Jewish students . . . fund the calls for the annihilation of their own people . . . .”

Thus, the Arizona State Legislature sought to enhance students’ free-speech protections via H.B. 2178—a statutory amendment intended to provide students with an opt-out mechanism. Specifically, the amendment requires public universities to provide students with a “reasonable opportunity” to select RSOs that may not receive any portion of “the student’s pro rata share of the fee monies.” A.R.S. § 15-1626.01. In response to H.B. 2178, ASU launched a “Student Fee Programs Allocation Form” whereby students could designate the student organizations or clubs they do not wish to fund through their tuition and fees. The form required that students type in the names of RSOs exactly as they appear in ASU’s database. Problematically, the deadline to submit the form was August 28th; meanwhile, student organizations remain free to register even after this deadline. As a result, students are not actually afforded the statutorily required reasonable opportunity to opt-out. ASU’s attempt at complying with the Arizona statute falls far short of the requirements and evades the legislative intent by effectively creating a loophole for RSOs.

Mandatory Student Fees Are Ripe For Reconsideration

However, even if ASU properly complied with the statutory requirement, it would not change the unconstitutional nature of the fees. The Southworth decision relied on by public universities is now on shaky ground. In 2018, the Supreme Court issued Janus, which explicitly overruled Abood—the rationale embedded in the Southworth decision. The Court reaffirmed that our freedom of speech includes the right to refrain from speaking at all. The Court warned, “Because the compelled subsidization of private speech seriously impinges on First Amendment rights, it cannot be casually allowed.” 

Post-Janus, public universities can no longer compel students to fund the private speech of RSOs simply because they advance the school’s educational mission. Instead, to justify the fee, the school must also prove that its educational mission “[could not] be achieved through means significantly less restrictive of associational freedoms.”  Said differently, Janus added a third requirement to Southworth—the infringement (i.e., the mandatory fee) must also be the least restrictive means of achieving the school’s educational mission. If the university cannot prove that the fee is the least restrictive means of achieving its broader educational mission, the infringement cannot stand.

Implications For ASU’S Student Programs Fee

There is no doubt that RSOs contribute to ASU’s educational mission. These extracurricular activities stimulate advocacy and debate and provide opportunities for students to develop various social skills. However, coercing students to betray their convictions and monetarily endorse ideas they find objectionable can hardly be said to be the least restrictive means for achieving this end. 

For example, ASU could eliminate the mandatory fee. This fee is a relatively new phenomenon; it was first implemented in Fall 2008. However, RSOs existed well before the fee, proving that RSOs and their educational benefits are not dependent on the fee. Eliminating the fee will not suddenly cause the campus to go silent or become an echo chamber of uniform ideas. Rather, the varied voices that exist on campus will continue to stimulate discourse and promote the broader educational mission. Eliminating the fee and, thereby, the infringement, is one option that is significantly less restrictive than the current fee structure.

Alternatively, ASU could roll the fee into tuition and fund the RSOs from the general tuition pool. While this may seem like a distinction without a difference, the speaker, in this instance, is no longer the objecting students but ASU itself. The university decides how the monies in the general tuition pool will be spent. If ASU believes subsidizing RSOs is academically valuable, it could do so out of its own pocket instead of infringing on students’ rights. Additional alternatives may also exist. Nonetheless, because ASU could avoid infringing on students’ rights while still advancing its educational mission through less restrictive alternatives, the current fee structure fails the third Janus requirement and is, therefore, unconstitutional.

Conclusion

The mandatory “Student Programs Fee” is ripe for challenge under Arizona and Federal law. The collection of the fee is likely unconstitutional. Moreover, even if the fee survived a constitutional challenge, the current fee dispersal process violates A.R.S. § 15-1626.01. Thus, while everyone is entitled to exercise their First Amendment right, forcing students to open their wallets and fund the private speech of RSOs is an assault on this right and a violation of Arizona law.