Lawyers representing opposite sides of a pending court case set to shape the nature of segregated fee allocation recently cited the same Supreme Court decision as evidence supporting each side's argument.
In early February, the three-judge panel in the 7th U.S. Circuit Court of Appeals received letters from both the plaintiff and defendant in UW System Board of Regents v. Kendra Fry, et al., a case originally filed by then-UW-Madison student Scott Southworth which addressed the constitutionality of the UW System's student organization funding process.
Both letters brought to the court's attention the ruling of Thomas v. Chicago Park District, a case settled by the U.S. Supreme Court after an appeal by the defendant in Board of Regents v. Fry in November.
Thomas v. Chicago Park District originated in 1997 when The Windy City Hemp Development Board was denied an application for a rally permit. Members of the board retaliated with a lawsuit, claiming the park permit process was a form of censorship in violation of the First Amendment.
Thomas Balistreri, an assistant attorney general who represents the Board of Regents, cited the Thomas case in his letter to the court but acknowledges that very little of it is directly pertinent to Board of Regents v. Fry.
\Essentially what we have cited the Chicago Park District case for is this little snippet that appears in the case that stands for the proposition that if there is an unconstitutional decision to give money to one person, that has to be pleaded and proved separately, as opposed to what's going on in this case [Board of Regents v. Fry], which is just an attack on the way the student government distributes money on its face,"" Balistreri said.
Though the Supreme Court ruled that the Park Department was not guilty of viewpoint discrimination, Jordan Lorence, a lawyer for the Alliance Defense Fund which argued against the Board of Regents, cited the case as an example of ""pretty specific"" guidelines for application denial.
""What we argued was that, in contrast, the student fee committees, the [General Student Service Fund] standards and the finance committee standards [in the UW System] are much more vague,"" Lorence said.
If the UW System loses the case, the judges will likely mandate changes in the student organization funding process.
Balistreri said it is not uncommon for opposing sides to cite the same case in support of a legal argument. He also said the Thomas ruling established a ""new authority"" for cases involving viewpoint discrimination.
Neither Balistreri nor Lorence would speculate as to when a ruling in the Fry case would be handed down.
""It's totally up to the discretion of the court,"" Lorence said. ""They can take ... a year; we might get the decision tomorrow; it might be six months from now. We just don't know.\
