How the Christian Right Came to Fund a Free Speech Case

Marcia Coyle,
The National Law Journal,
October 26, 1999

The name party to a U.S. Supreme Court case rarely gets to sit with attorneys at the high court's counsel table. But that's where Scott Southworth will be on Nov. 9 when the justices take up the major First Amendment challenge bearing his name.

Mr. Southworth, a graduate of the University of Wisconsin-Madison School of Law, will not be arguing his own case. But as he and two law school friends have done for three years, Mr. Southworth will assist the solo practitioner who has successfully pressed their suit against their alma mater in the lower courts.

Mr. Southworth, a research assistant to a Wisconsin assemblywoman; Amy Schoepke, a Wisconsin state government attorney; and Keith Bannach, of Lomurro, Davison, Eastman & Munoz P.A., in Freehold, N.J., were the catalysts for the free speech challenge, which has provoked a classic battle in the high court between liberal and conservative civil liberties and religious groups.

In Board of Regents, University of Wisconsin v. Southworth, No. 98-1189, the justices will decide whether the university can use mandatory student activity fees to fund student-run organizations that advocate political or ideological positions with which some students disagree.

As law students, Mr. Southworth and his two friends objected to having portions of their activity fees go to 18 student groups, including the International Socialist Organization (which advocated the overthrow of the federal government); the Lesbian, Gay, Bisexual Campus Center; and the Campus Women's Center.

They argue that they do not want to censor speech but that the university, by forcing them to give financial support to groups with which they disagree, is violating their own rights of free speech and association. "What a lot of people on both sides have misunderstood is this is really about choice, not about the groups themselves," said Ms. Schoepke.

The university argues that its fee system distributes the money on a viewpoint-neutral basis to all registered student groups, which furthers First Amendment values in the university community.

Last year, the U.S. Court of Appeals for the 7th Circuit agreed with the plaintiffs, holding that the fee system was unconstitutional. "Funding of private organizations which engage in political ideological activities is not germane to a university's educational mission, and even if it were, there is no vital interest in compelled funding," said the court.

Mr. Southworth said that he and Ms. Schoepke first discussed the issue as undergraduates. A leader in the campus movement to reform the student government, Mr. Southworth said that he repeatedly--and to no avail--contacted the university to discuss an opt-out, a reimbursement or some other way of restricting the use of his money. He also tried to get the Wisconsin Legislature involved.

"I had exhausted the executive and legislative branches, and there was only one left," he recalled. At that point, he was in law school and shared his frustration with a fellow devout Christian, Mr. Bannach, who also was upset with the advocacy "antics" of some of the groups, particularly homosexual ones, and who also had had no luck in getting the university to address his concerns.

Mr. Bannach suggested to Mr. Southworth that he contact the Alliance Defense Fund, which he had heard about during a radio broadcast by Focus on the Family. The Arizona-based organization, whose board of directors reads like a Who's Who of conservative Christian leadership groups, said that it does not bring court cases but does fund them, and it referred him to Jordan Lorence, of Fairfax, Va., of Northstar Legal Center.

The center, which Mr. Lorence founded in 1994, "is basically me and a few other people doing conservative free speech and religious liberty type cases around the country," he said, adding that Alliance has funded all of his cases.

Mr. Lorence said that he saw a Southworth-type case coming after the Supreme Court's 1995 ruling in Rosenberger v. University of Virginia, 515 U.S. 819, which struck down the university's refusal to fund student religious organizations. The high court explicitly left open the question that is now being presented by Southworth.

He has handled the Southworth case alone, with occasional help from the three law-students-turned-lawyers and "many late hours at Kinko's." He will argue the case at their request. The high court challenge has drawn 30 amicus briefs, spanning the political spectrum.

"I don't want to think about losing," said Mr. Southworth. "God calls us to be faithful, not successful. We just have to focus on making our arguments, doing the honorable thing and leaving it in God's hands."

From Law News,, 99/10/26.