Fees case ruling silences opposition

The recent ruling by the 8th U.S. Circuit Court of Appeals rejecting an attempt by three student organizations to participate in the lawsuit challenging the University’s mandatory students fees system, reflects an undue view of the role of the law and ignorance of the reality of life at the University.
The appellate court earlier this month unanimously affirmed a ruling of the Federal Trial Court in St. Paul that forecloses participation in the lawsuit by three student organizations that are specifically named in the case: Queer Student Cultural Center, La Raza Student Cultural Center and University Young Women, three of the 23 student organizations that received mandatory student fees in varying amounts at the institution.
The lawsuit asserts that students should not be forced to pay fees that are distributed, in part, to organizations with political and ideological views that conflict with those paying the fees. Although the lawsuit is a blunderbuss attempt to dismantle the entire fees system at the University, it singles out the three named organizations for particular enmity.
The lawsuit is brought only against the University and various University regents and officials and not against any particular student organization. But being named in the lawsuit, the three organizations sought to intervene, a legal procedure that allows parties with an interest in pending litigation to seek to have their voice heard in the case. The federal trial court said they could not; it was that ruling that a three-judge panel of the court of appeals affirmed.
It is not unusual for courts, particularly in the federal system, to reject efforts to intervene in litigation. Interlopers generally are disfavored because they tend to clutter cases, often making them more expensive. In contrast, the Minnesota state court system seems to be more favorable to outside participation, recognizing that intervention often adds important input into litigation.
While the ruling rejecting intervention in the federal fees case is not that surprising, the court’s reasoning to reject the right to participate in the lawsuit was troublesome. It proffered two reasons:
1. That the groups only claimed an “economic interest” in the lawsuit; and
2. That their presence would inject “collateral” issues into the case.
Both reasons are disingenuous. The litigation system revolves, in a large part, around people seeking vindication of their economic interests. The fees case is based on students not wanting to pay money to the University –surely an economic interest, although clothed in philosophical garb. It is disingenuous to all the challengers to assert their “economic” interests while those defending their own pecuniary prerogatives are not allowed to respond.
The notion that the trio of student groups may inject “collateral” issues is equally specious. The court invoked the doctrine of “pares patriae” to fend off participation by the three organizations. Under this tenet, a government entity is deemed to be acting in the best interests of the public.
But this is not always so, especially at the University. There are natural and inevitable clashes between those organizations and the institution. But the times, and the law, have changed. A few years ago, a case of this type would have been thrown out of court. In the 1980’s, the same court of appeals upheld the mandatory student fees that were allocated to The Minnesota Daily in the face of a cutback by the Regents brought about by a public clamor over a controversial “Finals Week” issue that lampooned and insulted University officials, societal morales and cultural icons.
A number of recent court rulings, including a comparable case at the University of Wisconsin, have undermined the Constitutional validity of mandatory student fees. The ruling rejecting intervention cannot simply be ascribed to procedural jockeying around. Not only was the groups’ demand for an opportunity to participate in the case rejected, but they may have lost the chance to go down with a sinking vessel.
In a telling remark that may presage the ultimate outcome, the appellate court observed that student organizations have “no constitutional or legal rights to charge unwilling students to provide financial support for their activities.” The statement hauntingly tracks the basic premises of the challenge to the fees system.
Although there are valid reasons for a mandatory fees system, the reality is, under existing law, the challengers stand a decent chance of prevailing. The University seems to recognize that it is already making overtures to reaching some type of settlement.
The possibility of the University entering into some kind of arrangement with the challengers to set aside or modify student fees could leave the organizations voiceless and speechless. They need to be able to participate in the litigation, to shape possible settlement arrangements and to present their views concerning the significance of the funding to their organizations. These can hardly be deemed “collateral” issues — this goes straight to the heart of the case.
Oddly, the “economic” interest that the court found so unappealing in this case is lurking elsewhere in the fees process. The Minnesota Student Association recently announced it was contemplating receiving money from private companies, including Coca Cola.
In the 1960s, the revelation that MSA and other student organizations had been aided by the Central Intelligence Agency triggered a national scandal. The notion that the student organization would be corrupted by government emissaries, especially surreptitious ones, was breathtaking.
Today, the desire of economic giants to subsidize, and indirectly control, university activities is more benign, indeed, welcome. It’s a reflection that economic interests loom large in academia.
The judicial process has not recognized that reality. In rejecting the participation by the three student organizations, the Court has prevented them from having a needed voice in important litigation whose outcome is likely to shape their organization and countless others at the University for a long time to come.

Marshall H. Tanick, from the law firm of Mansfield, Tanick & Cohen, is an adversary who represented The Minnesota Daily in its lawsuit upholding its right to receive mandatory fee funding at the University.