Southworth, Scott v. Bd Regents Univ WI ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2314
SCOTT H. SOUTHWORTH and BENJAMIN THOMPSON,
Plaintiffs-Appellees,
v.
BOARD OF REGENTS OF THE UNIVERSITY
OF WISCONSIN SYSTEM,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 96 C 292—John C. Shabaz, Judge.
____________
ARGUED JANUARY 13, 2004—DECIDED JULY 23, 2004
____________
Before BAUER, MANION, and ROVNER, Circuit Judges.
MANION, Circuit Judge. This is the fifth time this case is
1
before this court. At issue in this appeal is the district
1
Southworth v. Grebe, No. 97-1001, 1997 WL 411225 (7th Cir. July
11, 1997); Southworth v. Grebe, 151 F.3d 717 (7th Cir.), rehearing
denied, 157 F.3d 1124 (7th Cir. 1998), rev’d sub nom. Bd. of Regents
of the Univ. of Wis. Sys. v. Southworth, 529 U.S. 217 (2000);
(continued...)
2 No. 03-2314
court’s award of attorneys’ fees and costs to the Plaintiff-
Appellees, students (the “Students”) in the University of
2
Wisconsin System (the “University”). The district court
awarded the Students these fees and costs in litigation chal-
lenging the funding of certain groups by the University as
violative of the Students’ constitutional rights. Because the
Students prevailed in part, we hold that the district court
did not err in its award and we affirm its decision.
I.
The collection and distribution of mandatory fees paid by
students to the University prior to this litigation, and as a
result of this litigation, has been set forth in great detail in
previous opinions of the district court, this court, and the
Supreme Court. We do not recite them in their entirety
again here. Nevertheless, a certain degree of renewed fa-
miliarity with the disbursement of these funds and, more im-
portantly, the procedural history of this case is important to
the resolution of this appeal.
1
(...continued)
Southworth v. Bd. of Regents of the Univ. of Wis. Sys., Nos. 97-5310,
97-3548, 2000 WL 831585 (7th Cir. June 23, 2000); Southworth v. Bd.
of Regents of the Univ. of Wis. Sys., 307 F.3d 566 (7th Cir. 2002). Of
these decisions, the most important for resolving the current
dispute are our reported opinions. For ease of reference, there-
fore, we refer to our first reported decision (151 F.3d 717) as
“Southworth I” and our second reported decision (307 F.3d 566) as
“Southworth II.”
2
Although stylized a suit against the University of Wisconsin
System, the facts relied on here relate specifically to the Madison
campus and the Appellees are, or were, all students enrolled at
that campus.
No. 03-2314 3
The University collects a mandatory student activity fee
from all students enrolled full-time. By state statute, re-
sponsibility for the allocation of these fees is shared by the
Board of Regents for the University and students at the
University through their student government representa-
tives. A portion (by far the larger portion) of the collected
fees are classified by the Regents as nonallocable. This por-
tion is used to cover expenses such as debt service, student
health services, and the University’s intramural sports
program. This nonallocable portion is not at issue here. The
remainder of the fees are classified as allocable and are
largely controlled by the University’s student government
body, the Associated Students of Madison (the “ASM”),
although, as we shall see, the measure of control and dis-
cretion exercised by the ASM has changed over the course
of this litigation.
A. The Allocable Fees—Pre-Litigation
At the outset of this litigation, a party interested in re-
ceiving a portion of the allocable fees could do so through
three means. First, a “Registered Student Organization” (an
3
“RSO”) could receive a portion of these fees through an
application to a committee of the ASM, the Student Services
Finance Committee (the “SSFC”). The SSFC is responsible for
the allocation of that portion of the fees held in the General
Student Services Fund (the “GSSF”). Second, an RSO could
apply for a grant drawn from the Student Government
Activity Fund (the “SGAF”) to support three separate catego-
ries of activities: operations, events, and travel. The SGAF is
3
To qualify as an RSO a group must be a formalized not-for-
profit group, composed mainly, but not necessarily exclusively,
of students, and controlled and directed by students.
4 No. 03-2314
administered through another committee of the ASM, the
Finance Committee. Finally, an RSO could seek funding
4
through a student referendum.
At the time this litigation was initiated, the SSFC had ten
guidelines for making GSSF funding decisions:
1. An applicant must be an [RSO] that provides an
important, ongoing service to significant numbers of
[University] students. These services should contribute
significantly to student health, safety, well-being, parti-
cipation, opportunity or education.
2. The service must be not-for-profit.
3. When serving both students and non-students, the
SSFC will generally only consider funding portions of
programs serving students.
4. The SSFC will generally consider funding only those
portions of programs directed by students.
5. Services receiving fees are expected to abide by all
SSFC, campus, state and federal wage policies.
6. GSSF funding is not intended to replace any reduc-
tions in funding previously exclusively funded through
tuition or “GPR” moneys.
4
For ease of reference, the following is a recap of the abbrevia-
tions utilized in discussing the funding system:
ASM—Associated Students of Madison
RSO—Registered Student Organization
SGAF—Student Government Activity Fund
GSSF—General Student Service Fund
SSFC—Student Services Finance Committee
No. 03-2314 5
7. Capital expenditures are provided for equipment that
will substantially enhance the service offered to stu-
dents only when other funding avenues have been
exhausted.
8. All expenditures and revenues by student groups
must be documented and made available.
9. Where possible, there must be a record system for
measuring the number of students served.
10. Services that receive more than 30% of their budget
from student fees and have an advisory board shall
have a SSFC-appointed liaison.
Fry v. Bd. of Regents of the Univ. of Wisconsin System, 132 F.
Supp. 2d. 744, 746-47 (W.D. Wis. 2000). An RSO that sought
to appeal the funding decision of the SSFC could appeal to
the ASM Council and subsequently to the Chancellor of the
University.
The guidelines for SGAF grants depended on the type of
grant. For grants to cover operations and events, the guide-
lines stated that the awards could not be used for “(1) fund-
raisers, (2) food and beverages, (3) gifts, donations or con-
tributions, (4) financial aid, (5) legal services, (6) expenses
incurred prior to ASM approval, (7) wages, (8) non-university
printing services, (9) event funding, (10) telephone charges,
and (11) conference/travel costs.” Fry, 132 F. Supp. 2d at
747. The guidelines for travel grants appear to have been
limited to a requirement that the travel would be central to
the purpose of the RSO. Like SSFC decisions, SGAF deci-
sions could be appealed from the ASM finance committee to
the full ASM Council.
Under Wisconsin law, the decisions of the ASM Finance
Committee, the SSFC, and the ASM Council were sent to the
Chancellor and the Board of Regents for their approval. The
6 No. 03-2314
Board did not approve or disapprove individual funding
decisions but, instead, voted on the budget of the ASM,
“which contained a line item or line items representing an
aggregate amount of [student] fee expenditures.” Id.
B. The Litigation—Round One
In March 1996, the Students filed suit in the District Court
for the Western District of Wisconsin. The Students’ primary
allegation was that the collection of a mandatory fee (at least
that portion that was allocable) violated their rights of free
speech, free association, and free exercise under the First
Amendment. The Students argued that requiring them to pay
the fee, part of which was distributed to RSOs, amounted to
forcing them to fund RSOs engaged in political and ideolog-
ical expression offensive to their beliefs. In support of their
argument, the Students cited funding to groups including
the Wisconsin Public Interest Research Group (“WISPIRG”),
the Lesbian, Gay, Bisexual Campus Center, the Campus
Women’s Center, the UW Greens, the Madison AIDS
Support Network, the International Socialist Organization,
the Ten Percent Society, the Progressive Student Network,
Amnesty International, United States Student Association,
Community Action on Latin America, La Colectiva Cultural
de Aztlán, the Militant Student Union of the University of
Wisconsin, the Student Labor Action Coalition, Student
Solidarity, Student NOW, MADPAC, and the Madison
Treaty Rights Support Group. In their initial complaint, the
Students stipulated that the University distributed funds
through the SSFC and the SGAF to RSOs in a viewpoint-
neutral manner. This stipulation did not, however, cover
funds distributed through the referendum method of
funding.
The district court granted summary judgment in favor of
the Students. This court affirmed. Southworth I, 151 F.3d 717
No. 03-2314 7
(7th Cir. 1998). The Supreme Court granted certiorari,
however, and reversed. Bd. of Regents of the Univ. of
Wisconsin Sys. v. Southworth, 529 U.S. 217 (2000). While rec-
ognizing that “students who attend the University cannot be
required to pay subsidies for the speech of other students
without some First Amendment protection,” id. at 231, the
Supreme Court held that this protection was not achieved by
a blanket prohibition on the use of allocable fees to fund the
groups listed above (or similar groups) or a refund (or
similar opt-out mechanism) to dissenting students. Id. at 230
(“[T]he means of implementing First Amendment protections
adopted in [Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977) and
Keller v. State Bar of Cal., 496 U.S. 1 (1990)] are neither ap-
plicable nor workable in the context of extracurricular student
speech at a university. ”). Instead, the protection for the
Students’ First Amendment rights is the requirement that
the University allocate these funds in a viewpoint-neutral
manner. Id. at 233 (“The proper measure, and the principal
standard of protection for objecting students, we conclude,
is the requirement of viewpoint neutrality in the allocation of
funding support.”). The Supreme Court expressed doubt
concerning, but did not rule on, the propriety of the referen-
dum method of funding. Id. at 230 (“The student referen-
dum aspect of the program for funding speech and expres-
sive activities, however, appears to be inconsistent with the
viewpoint neutrality requirement.”). The Court held that it
was necessary to remand the case to determine “what pro-
tection, if any, there is for viewpoint neutrality in [the
referendum method of funding].” Id. at 235.
C. The Litigation—Round Two
Following the Supreme Court’s decision, this court re-
manded the case to the district court. Southworth, 2000 WL
831585, at **4. This court, while expressing doubt as to its
8 No. 03-2314
constitutionality, instructed the district court on remand to
consider the constitutionality of the referendum method af-
ter the development of a more complete record. Id. at **3.
This court also remanded the case to the district court for
consideration of the Students’ request for leave to amend
their complaint and for leave to withdraw their stipulation
that the University administered SGAF and GSSF funds in a
viewpoint-neutral manner. Id. While finding that the Students’
request, in light of the Supreme Court’s decision, “seems
reasonable,” this court left the request to the district court to
consider on remand. Id. at **4.
On remand, the district court voided the Students’ stip-
ulation and granted the Students’ motion to amend their
5
complaint. The Students’ amended complaint alleged that
the University’s system failed the requirement of viewpoint
neutrality by vesting the student government with unbri-
6
dled discretion in making allocation decisions.
In December 2000, the district court conducted a bench
trial on the Students’ amended complaint. At the conclusion
5
The district court did not ultimately consider the constitu-
tionality of the referendum method of funding. On May 3, 2000,
the University’s president, citing the Supreme Court’s opinion,
abolished the referendum method of funding. This action was
taken prior to the order of this court remanding the constitution-
ality of the referendum method to the district court. It appears,
however, that this court was not made aware of this when we
ordered the remand. The parties later stipulated to the dismissal
of the Students’ claims concerning the referendum method of
funding.
6
The Students’ amended complaint also alleged that the funding
system failed to ensure viewpoint neutrality because the Univer-
sity barred the funding of partisan political and religious
organizations. Before trial, the University eliminated this pro-
hibition.
No. 03-2314 9
of the trial, the district court issued an oral ruling that the
University’s mandatory fee system violated the plaintiffs’
First Amendment rights by granting the student govern-
ment too much discretion for determining which student
organizations to fund. Four days later, the district court
issued a written Supplemental Decision and Order further
explaining its oral ruling. Specifically, the district court
explained that after reviewing the guidelines for funding set
forth above, “no objective standards exist to determine
which eligible student groups receive the funds compelled
from the student body.” Fry, 132 F. Supp. 2d at 749. The court
found that “[d]ecisions as to who receives funding and in
what amounts are left to the complete discretion of the
student officials on student government committees.” The
court recognized that there was an appeals process but held
that “those hearing the appeals are no more bound by
objective standards than the original decision-makers.” Id.
The court also found that the absence of objective standards
for SGAF and GSSF funding decisions meant that these
funding decisions suffered from the same defect of the
referendum method criticized by this court and the Su-
preme Court, namely, that the decisions were an exercise of
majoritarian rule that was inconsistent with the principle of
viewpoint neutrality. Id. at 750.
Importantly, however, the district court deferred entry of
its judgment for two months to permit the University “to
establish a system which operates in a viewpoint neutral
manner.” Id.
In response to this order, the University instituted a series
of extensive changes to its funding system and submitted
these changes to the district court for its consideration.
These new policies are set forth in great detail in this court’s
October 2002 decision. See Southworth II , 307 F.3d at 581-88.
The district court reviewed the University’s new policies
but found that even these policies did not “address the
10 No. 03-2314
central constitutional defect,” namely, that the discretion
afforded the student government committees remained un-
checked. Fry v. Bd. of Regents of the Univ. of Wis. Sys., No. 96-
C-0292-S, slip op. at 3 (W.D. Wis. March 15, 2001). The
district court found that many of the criteria for determining
funding were “inherently subjective and malleable and
provide for the use of expansive discretion.” Id. Finally,
the court noted that the new system did not balance the
University’s announced goals of funding diverse speech
and, at the same time, “empower[ing] student government
to be the arbiter of that funding,” and questioned whether
such a balance could be found that was “viewpoint neutral
and protects the First Amendment rights of objecting stud-
ents.” Id. at 4.
This court affirmed in part, and reversed in part, the dis-
trict court’s decision concerning the new policies. This court
held “that the University’s Funding Standards, as a whole,
substantially limit the discretion of the SSFC and the ASM
Finance Committee as to the GSSF grants and SGAF opera-
tion and events grants.” Southworth II, 307 F.3d at 592-93.
We did, however, find that “a few of the criteria relied upon
by the University are related to the RSO’s speech or view-
point, and thus are improperly considered by the student
government.” Id. at 593. Specifically, this court found that
because the funding of travel grants was not guided by the
same criteria as funding for operation and events grants,
“the University cannot use the mandatory student activity
fees of objecting students to fund the travel of groups
engaged in political, religious or ideological activities or
speech.” Id. at 595. In addition, we rejected as improper
criteria for funding that considered “the length of time an
RSO has existed and the amount of past funding it has
received.” Id.
That decision was the last decision on the merits in this
litigation. We issued our opinion on October 1, 2002 and set
No. 03-2314 11
forth an amended opinion the next day. On October 24, 2002,
we issued our mandate to the district court.
D. The Current Dispute
We turn now to the facts surrounding the award of at-
torneys’ fees and costs. In December 1996, the district court
issued an order concerning attorneys’ fees and costs (the
“1996 Order”). The 1996 Order stated that “[t]he plaintiffs’
deadline for filing their request for attorney’s fees and costs
in this case is 30 days after the expiration of the time period
for appeal, or, if the decision is appealed, until 30 days after
all appeals are completed in this case.” The district court
issued a second order concerning attorneys’ fees on April
10, 2001 (the “2001 Order”). In this second order the court
deferred the filing of applications for attorneys’ fees or costs
“until thirty days after the issuance of the mandate to this
court following the resolution of all appeals.”
As we have noted, this court issued its mandate to the
district court on October 24, 2002. More than three months
later, on January 28, 2003, the Students filed a motion with
the district court under 42 U.S.C. § 1988 for $423,395.72 in
attorneys’ fees and costs ($394,690 in attorneys’ fees and
$28,705.72 in costs).
The University opposed the Students’ motion on two
grounds. First, the University challenged the timeliness of
the Students’ motion. The University argued that the 2001
Order required the Students to file their motion for fees and
costs within thirty days of the return of our mandate to the
district court. Under this interpretation of the 2001 Order the
Students’ request was more than two months late.
The University also argued that, even assuming the
Students’ motion was timely, the Students were not prevailing
12 No. 03-2314
parties eligible under § 1988 for an award of costs and fees.
The University argued, in effect, that in 2003 it was continu-
ing to do the same thing it had done when the litigation
started in 1996, namely, using mandatory fees collected
from the Students to fund political and ideological groups
with viewpoints opposed by the Students. The University
also argued that any victory the Students could claim with
respect to their argument concerning viewpoint neutrality
was merely a moral victory. There was, the University ar-
gued, little if any actual change in the University’s behavior
and there was no evidence that the University had ever
allocated funds in a manner that was not viewpoint-neutral.
The district court disagreed with the University on both
arguments. The district court held that the Students’ motion
was not untimely. The court agreed with the Students’
argument that the 2001 Order merely reaffirmed the 1996
Order and that the 1996 Order’s language that a request for
fees and cost could be filed up to thirty days “after the ex-
piration of the time period for appeal” meant that the thirty
days began to run at the expiration of the period during
which either party could petition for a writ of certiorari
from the Supreme Court. The court held that “[t]o wait
thirty days until the time for appeal expires is no burden on
either party and may save judicial resources and the expen-
diture of fees.”
The district court also held that the Students were a pre-
vailing party. The court concluded that:
As a result of this litigation the process by which funding
decisions are made has been altered in two important
ways. First, detailed viewpoint-neutral criteria have been
instituted significantly limiting funding discretion. Sec-
ond, a procedure was established to permit appeal of an
allocation made on a viewpoint discriminatory basis.
Unquestionably these changes significantly altered the
No. 03-2314 13
legal relationship between the parties rendering plaintiffs
prevailing parties under § [1987].
Southworth v. Bd. of Regents of the University of Wis. Sys., 96-
C-292-S, slip op. at 4 (W.D. Wis. April 11, 2003).
The district court did not award the Students all of their
request, however. The court found that the relief the Students
obtained “was less than that which they sought until the
Supreme Court decision.” Id. at 5. The court, therefore, re-
duced the award of costs and fees by one-half and entered
judgment in favor of the plaintiffs in the amount of
$211,697.86. This appeal followed.
II.
On appeal the University raises the same arguments
against the award as it did in opposing the motion before
the district court. First, the University argues that the Students’
motion for fees was untimely. Second, the University argues
that the Students were not a prevailing party entitled to fees
and costs. The University does not, however, contest the
amount of fees awarded should these challenges not
succeed. We address each argument in turn.
A. The Timeliness of the Students’ Motion
The University first argues that the Students’ request for
fees was untimely. The 1996 Order and the 2001 Order, the
University argues, were not compatible and established
different rules for requesting attorneys’ fees. As a conse-
quence, the University argues, the latter of these orders, the
2001 Order, is controlling and required the Students to make
a motion for fees within 30 days after the issuance by this
court of its mandate to the district court. Such an interpreta-
tion would have made the Students’ motion timely only if
14 No. 03-2314
it were made on or before November 23, 2002. The Students
made their motion nearly two months later.
The Students argue that the orders are not incompatible,
and that the 2001 Order merely reaffirmed the 1996 Order.
Each party, the Students argue, could have petitioned for a
writ of certiorari from the United States Supreme Court
following our decision in Southworth II. The time for filing
such a petition runs for 90 days from the date the opinion
sought to be reviewed is filed. Supr. Ct. R. 13.1. Thus, ac-
cording to the Students, a motion for attorneys’ fees was not
untimely until 30 days after the expiration of the time
during which the Students (or the University) could have
sought a writ of certiorari from the Supreme Court. This
court’s opinion in Southworth II was filed on October 1, 2002
and an amended decision was filed the next day. Ninety
days later was December 31, 2002 (counting from the date the
amended decision was filed). The parties, therefore, had
until January 30, 2003 to file a motion for costs and fees. By
such a calculation, the Students’ motion, filed on January 27,
was timely.
Our resolution of this issue is guided by the broad defer-
ence given to a district court in its interpretation of its own
orders. “That court is in the best position to interpret its
own orders.” In re Chicago, Rock Island & Pacific R.R. Co., 860
F.2d 267, 272 (7th Cir. 1988). We will not reverse a district
court’s decision in these circumstances “ ‘unless the record
clearly shows an abuse of discretion.’ ” Id. (quoting Arenson
v. Chicago Mercantile Exch., 520 F.2d 722, 725 (7th Cir. 1975)).
We think this deference is particularly important where the
district court is interpreting an order that is (at least in part)
aimed at managing post-trial scheduling issues. Cf. Smith v.
Village of Maywood, 970 F.2d 397, 399 (7th Cir. 1992) (per
curiam) (“We have emphasized the need for flexibility and
good sense in interpreting time limits on attorney’s fee
petitions.”).
No. 03-2314 15
The district court did not abuse its discretion. The district
court interpreted its order in such a way that the application
would be timely only after the parties had exhausted all
appeals (including a petition for a writ of certiorari) or had
forgone an opportunity to appeal, thus permitting the
application for fees to be all-inclusive. We have approved
such an approach to attorneys’ fees before. In Village of
Maywood, we discussed approvingly one district court judge’s
approach to the Northern District of Illinois’ Local Rule 46.
That local rule requires the filing of an application for fees
within 90 days of a “final judgment.” The district court’s
approach was that a final judgment for the purpose of fee
petitions included the consideration of appeals. Id. This
court noted that “[d]elaying the filing of fee petitions cuts
down on multiple petitions and time wasted on petitions
that may be reversed on appeal.” Id. The district court’s
interpretation of its orders in this case was motivated by the
same consideration: “[t]o wait thirty days until the time for
appeal expires is no burden on either party and may save
judicial resources and the expenditure of fees.” Southworth,
96-C-292-S, slip op. at 3. The situation is similar here. The
University has not argued that it was prejudiced or bur-
dened by having the district court consider the fee petition
in early 2003 rather than late 2002. The petition for fees was
timely.
B. Whether the Students Are Prevailing Parties
The University next argues that, even if the district court
did not err in finding the Students’ motion for costs and
attorneys’ fees timely, the district court erred in concluding
that the Students were prevailing parties. Classifying the
Students as “prevailing parties” is significant because, in
a suit brought under 42 U.S.C. § 1983, a court may award
plaintiffs reasonable attorney fees as part of the costs, if they
16 No. 03-2314
are prevailing parties. 42 U.S.C. § 1988(b). “[A] plaintiff ‘pre-
vails’ when actual relief on the merits of his claim materially
alters the legal relationship between the parties by modify-
ing the defendant’s behavior in a way that directly benefits
the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111 (1992).
In this case, the district court found that the Students were
prevailing parties because their suit altered their legal
relationship with the University in two ways. First, the
University established detailed criteria limiting the discre-
tion in the allocation of mandatory student fees to various
organizations, thus protecting against viewpoint discrimina-
tion. Second, the University established an appeal procedure
to ensure that student fees are allocated in a viewpoint-
neutral manner that avoids viewpoint discrimination, thus
further limiting the discretion of the University. Because,
however, the Students ultimately lost on their original claim
that forced funding of speech through the mandatory
student activity fee system violated the First Amendment,
the district court concluded that they were not entitled to
the full amount of attorneys’ fees. Accordingly, the district
court reduced the costs and fees requested by one-half.
On appeal, the University does not challenge the amount
of the award. Rather, it argues that the Students were not
entitled to costs and fees because they were not prevailing
parties. In making this argument, the University posits that
our standard of review is de novo, while the Students main-
tain that we review solely for clear error. The appropriate
standard of review depends on the circumstances. If the
question of prevailing party status involves elements of a
legal analysis, then our review is de novo. Harper v. City of
Chicago Heights, 223 F.3d 593, 603 (7th Cir. 2000). Con-
versely, if the issue is whether the plaintiff directly benefits,
that “is a factual determination which we review only for
clear error.” Cady v. City of Chicago, 43 F.3d 326, 329 (7th Cir.
No. 03-2314 17
1994). Or, as we explained in Federation of Advertising
Industry Representatives, Inc. v. City of Chicago, 326 F.3d 924,
932 (7th Cir. 2003), “[a]lthough the decision to award
attorney’s fees under § 1988 lies within the district court’s
discretion, when . . . an attorney’s fee award rests on the
application of a principle of law, our review is de novo.” Id.
In this case, because the University claims that the Students
did not directly benefit from the various court rulings, as
opposed to challenging the application of a principle of law,
we review the district court’s decision for clear error.
However, we note that even under the more searching de
novo standard, our analysis, see infra, would not change.
As noted, the University argues that the Students were not
prevailing parties. In making this argument, the University
offers several different rationales. First, the University
claims that the Students did not prevail because their desire
in bringing suit was to prohibit the University from collect-
ing mandatory student activity fees and distributing those
fees to organizations which engaged in political and
ideological speech with which they disagreed. Quoting Cady,
the University argues that determining whether a party has
prevailed requires a “pragmatic assessment of the goals the
plaintiffs had in mind in bringing the suit and the extent to
which they achieved those ends.” 43 F.3d at 330-31. The
University reasons that the Students failed to achieve their
goal because “[w]hen the [Students] brought this action they
were required to pay a mandatory student activity fee that
could be used to fund groups with positions and views to
which they objected. Now that the litigation has been con-
cluded, [the Students] are still required to pay a mandatory
student activity fee that can be used to fund groups with
positions and views to which they object.” Appellee Brief at
18. Therefore, the University contends, the Students were
not prevailing parties.
18 No. 03-2314
The University’s argument is misplaced. The district court
did not find that the Students were prevailing parties on
their original complaint’s attempt to bar the forced funding
of political and ideological speech through the mandatory
student activity fees. The Students clearly lost on that claim.
The district court correctly denied the Students attorneys’
fees to the extent that such fees were generated from that
claim.
This litigation did not end with the Supreme Court’s
decision, however. After losing on their first claim, the
Students amended their complaint and alleged that the
mandatory fee system failed to satisfy the requirement of
viewpoint neutrality. As discussed below, the Students were
prevailing parties on this amended complaint.
First, as detailed above, in response to the district court’s
2002 holding that the University’s funding system violated
the principles of viewpoint neutrality and the district court’s
order allowing the University to adopt a new method, the
University established detailed standards for the allocation
of student activity fees. It also created an appeal process for
challenges to funding decisions. The district court, however,
found those policies lacking, concluding that the “discretion
afforded the student government committees remained un-
checked.” Fry, 96-C-0292-S, slip op. at 3. It was this revised
system of funding, and not the previous system, that we
considered in Southworth II. Unlike the district court, we
concluded that the new guidelines sufficiently bridled the
University’s discretion. We struck, however, certain imper-
missible factors from consideration by the University in its
funding decisions. Southworth II, 307 F.3d at 592-94. Spe-
cifically, this court found impermissible the University’s
consideration of the length of time an RSO existed and the
amount of past funding as factors in whether to fund and
the level of funding an RSO could receive. Id. at 593-94. We
No. 03-2314 19
also held that funding of travel grants was impermissible
because the University failed to present any evidence that it
had established procedures limiting the decisionmakers’
discretion for these grants. Id. at 592.
In this second round of litigation, therefore, the Students
were prevailing parties in two ways. First, the Students
obtained a court ruling in the district court that the man-
datory fee system violated the principle of viewpoint neutral-
ity, and in response to the district court’s order, the University
adopted the detailed procedures, criteria, and appeals pro-
cess governing funding decisions. The University did not chal-
lenge the district court’s ruling that the original fee system
violated the principle of viewpoint neutrality by granting the
University unfettered discretion. Instead, in response to that
ruling, the University altered the mandatory fee system and it
was the district court’s decision concerning this newly
adopted system that this court affirmed in part, and re-
versed in part. The Students thus prevailed in obtaining the
protection they sought in their amended complaint—a
mandatory fee system that satisfied the requirements of
viewpoint neutrality—and this change resulted from a
“court-ordered ‘change in the legal relationship between the
plaintiff and the defendant.’ ” Buckhannon Bd. and Care
Home, Inc. v. West Virginia Dep’t of Health and Human Res.,
532 U.S. 598, 604 (2001) (citing Texas State Teachers Ass’n v.
Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989)).
On appeal, the University does not address the fact that
the system this court found constitutional was adopted only
after the Students filed suit and the district court entered an
order in favor of the Students. It was the district court’s
order allowing the University to adopt new standards (and
thus avoid a judgment against it) that caused the University to
adopt the criteria and procedures upheld in part in Southworth
II. The University instead claims that, since this court upheld
20 No. 03-2314
most of the newly adopted criteria, and only struck minor
aspects of the new mandatory fee system, the Students were
not prevailing parties. This argument, however, ignores the
Students’ success in the district court in forcing the Univer-
sity to adopt the new funding criteria in the first place.
The Students also prevailed in a second way on appeal.
Although we held that most of the new criteria were valid,
the criteria we found impermissible were not insignificant,
as the University contends. For instance, this court held that
“criteria considering the length of time an RSO has existed
and the amount of past funding it has received cannot be
considered viewpoint-neutral because those criteria are
related to the content and viewpoint of the applying RSO, as
well as based on a prior system which lacked the constitutional
safeguards of viewpoint neutrality.” Southworth II, 307 F.3d at
595. Although those were only two of the many criteria
established by the University, those two criteria were heavily
weighted in past allocation decisions, as demonstrated by the
University’s explanation during the course of this litigation
that the funding decisions began by looking at the prior
year’s allocations as a benchmark for current grants.
Southworth II, 307 F.3d at 593. The University had also relied
on these criteria to argue in Southworth II that “a group in
existence for ten years would have a reasonable basis for
objecting to a funding decision that treated groups with
comparable requests more favorably, which had been
around a much shorter time.” Id. This court rejected con-
sideration of the length of time an RSO was in existence and
the amount of past funding decisions because those criteria
institutionalized viewpoint discrimination from past years. Id.
at 593-94. We also held those criteria improper because they
discriminated against less traditional viewpoints in favor of
No. 03-2314 21
7
established parties and speech. Id. The striking of those
criteria thus established a very important protection to the
8
Students’ right to a system of viewpoint neutrality.
The University also argues that the Students did not ob-
tain a direct benefit as a result of the litigation because they
are still required to pay the student activity fees although
they had sought an injunction ordering the University “to
stop requiring students to fund campus organizations that
engage in political and ideological advocacy.” Appellant’s
Brief at 6. That, however, is only part of the relief the
7
This court also held in Southworth II that the University’s cri-
terion considering the number of students benefitting from speech
was impermissible to the extent it allowed the University to
consider the popularity of the speech as a factor in determining
funding. Southworth II, 307 F.3d at 595. But because there were
also legitimate situations when the University would consider the
number of students involved, for instance in assessing funding
necessary for variable expenses for food or programs for atten-
dees, this court did not strike that criterion. Id.
8
The Students also argue that they prevailed because this court
held “that the mandatory fee system unconstitutionally grants the
ASM Finance Committee unbridled discretion for awarding
travel grants to organizations which engage in speech and ex-
pressive activities. Therefore, until such standards are adopted,
the University cannot use the mandatory fees of objecting stud-
ents for such travel grants.” Southworth II, 307 F.3d at 592. The
University responds that by the time of this court’s decision, it
had already implemented such standards, and therefore the
Students did not prevail on this basis. The University, however,
failed to supplement the record by providing this court with
that information, and thus, on the record before this court, the
Students in fact prevailed. Nonetheless, because the University
does not challenge the amount of attorneys’ fees awarded, whether
the Students were prevailing parties on this aspect of the case is
irrelevant, since they prevailed on other portions of their case.
22 No. 03-2314
Students sought. The Students also sought an order “to stop
requiring students to fund campus organizations that
engage in political and ideological advocacy . . . unless or
until [the University] establish[es] a system of distributing money
that operates in a viewpoint neutral manner.” Record 96 at 7.
(Emphasis added.) Thus, although it is true that the Stu-
dents must still pay the mandatory fee, they prevailed in
vindicating the constitutional guarantee that the distribution
system would conform to the requirements of viewpoint
neutrality. Moreover, although the University calls this merely
a “moral victory,” as we explained in Southworth II, “the
Students’ alleged concrete and particularized interest is an
assurance that their mandatory student activity fees are
distributed in a viewpoint-neutral manner.” Id. at 573. Thus,
the victory was more than moral—it was one protecting “a
9
concrete and particularized interest.”
9
The Students also argue that because the University in the
2001-2002 academic year applied the impermissible criteria, they
were entitled to money back from the fees they paid in those
years. The right to a refund, according to the Students, also dem-
onstrates that they were a prevailing party. The University
responds that the Students are not entitled to a refund because
they failed to prove any instances of viewpoint discrimination.
The University’s position is misplaced. As the Supreme Court
explained in Southworth, a student “cannot be required to pay
subsidies for the speech of other students without some First
Amendment protection.” Southworth, 529 U.S. at 231. The First
Amendment protection is the requirement of viewpoint neutral-
ity which includes a requirement that the University’s discretion
is fettered. Southworth II, 307 F.3d at 575-80. Thus, if the funding
system provides the University with unfettered discretion it vio-
lates the mandates of the First Amendment and the University
cannot force the students to fund others’ speech. See Southworth
II, 307 F.3d at 593 (holding that the Students could not be forced
(continued...)
No. 03-2314 23
The University disagrees, arguing that, rather than having
succeeded, the Students are actually in a worse position
today because the Students had filed this lawsuit to prevent
being forced to fund ideological and political speech with
which they disagree, but now there is more money used to
fund such organizations because the bar on distributions
to partisan political organizations is gone. However, in
making these arguments, the University focuses on the first
round of litigation instead of the second. In the second
round, the Students (recognizing that they would be re-
quired to fund such speech) amended their complaint and
alleged that the system violated the principles of viewpoint
neutrality. The Students succeeded in establishing this
violation when the district court ruled that the previous
funding system was unconstitutional and the University
chose not to appeal this ruling.
Additionally, the University claims that the Students
are also worse off now (and thus not prevailing parties)
because, before this litigation, the Students could have
attempted to convince the University not to fund certain
ideological and political speech on the grounds that the
organizations’ viewpoints did not represent the viewpoints
of the Students, but now they are unable to seek defund-
ing of organizations with which they disagree. The University
once again confuses the Students’ original goal, a ban on
forced funding of groups the Students opposed, with their
9
(...continued)
to fund travel grants until the University established criteria
limiting the University’s discretion). However, because the
Students never filed a motion seeking a refund following remand,
it is too late to do so now. Nonetheless, the Students have
established their status as prevailing parties without reference to
any right to a monetary refund.
24 No. 03-2314
goal in the amended complaint—protection against view-
point discrimination. That the Students’ previous complaint
sought to bar forced funding of organizations with whose
viewpoint they disagreed is irrelevant.
The University presents several other arguments as to
why the Students were not prevailing parties. For instance,
the University contends that several of the changes the
University implemented were not required by a court order,
such as its abandonment of the referendum method of
funding and its elimination of the previous restriction on
funding of partisan political and religious activities. Thus,
according to the University, under Buckhannon the Students
cannot base their prevailing party status on these changes.
The University is correct that in Buckhannon the Supreme
Court rejected the “catalyst theory,” holding that a party is
not entitled to attorneys’ fees merely because the lawsuit
served as a catalyst for the change in behavior. Buckhannon,
532 U.S. at 605. Rather, as Buckhannon explained, there must
be a court-ordered change in the legal relationship between
the parties. Id. at 604. In this case, the University removed
its prohibition of funding for partisan political and religious
organizations without a court order requiring it to do so. It
also eliminated the referendum without a court order. Had the
only changes in the University’s behavior been to abandon
the referendum and the bar on the distribution of funds to
partisan political organizations and religious groups, the
University might be correct that the Students were not
prevailing parties. These were not, however, the only
changes. As we have explained, the University substantially
revised its funding system in response to a court ruling, and
this court struck two significant aspects of the University’s
funding criteria. Further, because the University does not
challenge the amount of costs and fees, we need not detail
every aspect on which the Students prevailed so as to
determine the proper allocation of attorneys’ fees.
No. 03-2314 25
The University also argues that the Students did not pre-
vail because they failed to prove that the University allo-
cated funds in a viewpoint-discriminatory way. However,
as this court explained in Southworth II, “the prohibition
against unbridled discretion is a component of the view-
point-neutrality requirement.” Southworth II, 307 F.3d at 578. In
their amended complaint, the Students did not argue that
the University engaged in specific incidents of viewpoint
discrimination (beyond the prohibition of funding partisan
political and religious organizations which the University
later removed). Instead, the Students challenged the system
for failing to comply with the constitutional prohibition
against unbridled discretion. The Students succeeded on
this claim, and that entitled them to prevailing party status.
See, e.g., Lewis v. Wilson, 253 F.3d 1077, 1082 (8th Cir. 2001)
(holding that successful facial challenge to decisionmaker’s
unbridled discretion bestowed “prevailing party” status).
In a final attempt to overcome the district court’s ruling
that the Students were prevailing parties, the University
maintains that the Students were not prevailing parties be-
cause nothing has changed: the University may still force
the Students to pay the mandatory student activity fee and
use that money to fund political and ideological speech with
which the Students disagree, and in fact, the organizations
which received funding in the past continue to receive
funding. For example, WISPIRG, which previously received
funding through the referendum method, still receives
funds at the same, or a slightly higher, level. The only
difference is that the funds are received through a different
distribution mechanism.
Notwithstanding the University’s claim, much has changed
since the inception of this lawsuit. The University now en-
sures that student fees are dispersed in a viewpoint-neutral
manner and, as a result of the district court’s order, it has
26 No. 03-2314
adopted detailed procedures, funding criteria and an appeal
process, most of which this court upheld in Southworth II.
Moreover, although the University appears to continue the
level of funding of some organizations at the same level as
under the previously invalid system, this court made clear
in Southworth II that “consideration of the length of time an
organization has been in existence and the amount of fund-
ing an organization has received in the past discriminates
against less traditional viewpoints.” Id. at 594. We therefore
concluded that “the University cannot consider the length
of time an RSO has been in existence, nor the amount of past
funding the organization has received, in assessing current
funding allocations as those criteria are improperly related
to the content of the speech.” Id. at 594. Contrary to the
University’s view, Southworth I and Southworth II changed the
status quo.
Furthermore, as we explained in Southworth II, “if one RSO
applied for funding following the blueprints of another
RSO, i.e., similar organizational structure, similar types of
activities, similar goals, and similar budgets, but received a
lower amount of funding, either the RSO or any student
who paid the mandatory student activity fee could present
an as-applied challenge in court.” Id. Thus, the University
must treat all viewpoints equally, and the Students suc-
ceeded in forcing the University to adopt funding criteria
10
and an appeals process which limit the previously unfet-
tered discretion of the decisionmakers to assure compliance
with the constitutional mandate of viewpoint neutrality. Id.
10
As we noted in Southworth II, “the appeals procedures require
the Student Council to compare the grant amounts the SSFC and
the ASM Finance Committee allocated to various RSOs to deter-
mine whether similar RSO applications were treated equally.” Id.
at 589.
No. 03-2314 27
Moreover, as the Supreme Court explained in Southworth,
“[t]he whole theory of viewpoint neutrality is that minority
views are treated with the same respect as are majority
views.” Southworth, 529 U.S. at 235. Thus, regardless of
viewpoint, each applicant should have equal access to the
funds available under the comprehensive procedures set out
in the University’s revised guidelines. Obviously if an
application were satisfactorily approved, the applicant would
have no objection. But if an application were not approved,
and the applicant determined that the rejection was based
on the viewpoint he hoped to use the funds to express, he
may have a valid challenge within the appeals process,
claiming that the decision was based upon viewpoint dis-
crimination. For many, if not most, of the requests for fund-
ing, the applicant’s viewpoint is obvious. The decisionmak-
ers on the SSFC and the ASM Finance Committee cannot
be expected consciously to avoid recognizing the obvious.
Rather, with full (or at least some) knowledge of the pur-
pose, the decision must be made based on the objective
criteria, viewpoint notwithstanding. No funding should be
given or denied based on viewpoint.
Of course, there are many issues that create polarizing
viewpoints. The demand for a share of the allocable funds
generated by the mandatory fees no doubt exceeds the sup-
ply. Thus, every request by an RSO and by others eligible
will not be granted. Viewpoint neutrality obviously does not
guarantee funding, but it does mandate that all viewpoints
have equal access to the limited public forum, be it a pool of
funding or a location for gathering and speaking. No or-
ganization should have a lock on funding, and the distribu-
tion should be determined on a periodic basis based on
current applications consistent with the detailed criteria and
procedures the University has formulated, which were
upheld by this court. If all applicants are treated equally
under the same rules, neutrality should be achieved.
28 No. 03-2314
Finally, before concluding, we note that had the University
argued that the district court erred in calculating the amount of
the attorneys’ fees, as well as the Students’ right to attorneys’
fees, this claim could have had merit. The district court merely
split the Students’ requested amount in half, as opposed to
awarding attorneys’ fees based on the fees incurred on the
claims on which the Students prevailed. At oral argument,
the Students’ attorney maintained that about half of the
attorneys’ fees were related to work performed after remand
from the Supreme Court, but failed to be specific. Because,
however, the University did not challenge the calculation of
the attorneys’ fees award on appeal, the fact that the
Students prevailed, at least in part, is sufficient to affirm the
entire award of costs and attorneys’ fees, as revised by the
district court.
III.
For the better part of a decade, the Students have chal-
lenged the collection and distribution of fees by the University.
The Students have not been entirely successful in their
efforts. The University continues to distribute funds to groups
with which the Students disagree. The Students, however,
did succeed in several respects. As a result of the Students’
efforts, the University has made significant changes to the
method by which it funds these groups (and other groups),
and established a detailed appeal process. These changes
are designed to ensure that the University makes its funding
decisions in a viewpoint-neutral manner which would give
access to funding by groups with viewpoints that are
different or contrary to groups that have been funded in the
past. The Students also succeeded in having impermissible
criteria stricken from the University’s consideration.
Because of this, the Students were prevailing parties entitled
No. 03-2314 29
to attorneys’ fees. We affirm, therefore, the district court’s
decision to that effect. We also affirm the district court’s
decision that the Students’ motion for fees was timely.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-23-04