In the 1999 case of Board of Regents of the University of Wisconsin System v. Southworth, et al., the U.S Supreme Court ruled that public universities can use mandatory student activity fees to fund campus groups, including those involved in political or ideological activities, as long as they maintain a system for allocating these funds that is viewpoint neutral. The case was brought forward by three law students who objected to their fees being used to support organizations with which they disagreed politically or ideologically. They argued this violated their First Amendment rights. However, Justice Anthony Kennedy writing for a unanimous court held that such funding does not infringe upon free speech rights if it's distributed in an unbiased manner without regard to the group’s perspective.

In the case of Board of Regents of the University of Wisconsin System v. Southworth, Justice Scalia dissented from the majority opinion. He argued that mandatory student activity fees used to fund a public university's program for extracurricular student speech should not be subjected to viewpoint neutrality requirement under First Amendment free-speech rights. According to him, this approach would lead universities into an impossible task as they would have difficulty determining what constitutes a neutral funding decision and could face endless litigation over perceived biases in their funding choices. Instead, he proposed that students who disagree with how their fees are being used should express their dissatisfaction through democratic means such as electing different student government representatives or lobbying for changes in university policies rather than resorting to constitutional litigation.