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...)

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

before this court.1

 At issue in this appeal is the district
2 No. 03-2314

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, therefore, 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.

court’s award of attorneys’ fees and costs to the PlaintiffAppellees, students (the “Students”) in the University of

Wisconsin System (the “University”).2

 The district court

awarded the Students these fees and costs in litigation challenging 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 familiarity with the disbursement of these funds and, more importantly, the procedural history of this case is important to

the resolution of this appeal.
No. 03-2314 3

3 To qualify as an RSO a group must be a formalized not-forprofit group, composed mainly, but not necessarily exclusively,

of students, and controlled and directed by students.

The University collects a mandatory student activity fee

from all students enrolled full-time. By state statute, responsibility 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 representatives. A portion (by far the larger portion) of the collected

fees are classified by the Regents as nonallocable. This portion 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 discretion 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 receiving a portion of the allocable fees could do so through

three means. First, a “Registered Student Organization” (an

“RSO”)3

 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 categories of activities: operations, events, and travel. The SGAF is
4 No. 03-2314

4 For ease of reference, the following is a recap of the abbreviations 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

administered through another committee of the ASM, the

Finance Committee. Finally, an RSO could seek funding

through a student referendum.4

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, participation, 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 reductions in funding previously exclusively funded through

tuition or “GPR” moneys. 
No. 03-2314 5

7. Capital expenditures are provided for equipment that

will substantially enhance the service offered to students 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 guidelines stated that the awards could not be used for “(1) fundraisers, (2) food and beverages, (3) gifts, donations or contributions, (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 decisions 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 ideological 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 viewpointneutral 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 recognizing 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 applicable 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 referendum method of funding. Id. at 230 (“The student referendum aspect of the program for funding speech and expressive 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 protection, 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 remanded the case to the district court. Southworth, 2000 WL

831585, at **4. This court, while expressing doubt as to its
8 No. 03-2314

5 The district court did not ultimately consider the constitutionality 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 constitutionality 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 University barred the funding of partisan political and religious

organizations. Before trial, the University eliminated this prohibition.

constitutionality, instructed the district court on remand to

consider the constitutionality of the referendum method after 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’ stipulation and granted the Students’ motion to amend their

complaint.5

 The Students’ amended complaint alleged that

the University’s system failed the requirement of viewpoint

neutrality by vesting the student government with unbridled discretion in making allocation decisions.6

In December 2000, the district court conducted a bench

trial on the Students’ amended complaint. At the conclusion
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 government 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 Supreme 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 unchecked. 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 students.” Id. at 4.

This court affirmed in part, and reversed in part, the district 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 operation 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 viewpoint, 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 attorneys’ 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 continuing 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 argued, 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 expiration 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 expenditure of fees.”

The district court also held that the Students were a prevailing 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. Second, 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, reduced 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 consequence, 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 interpretation 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, according 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 deference 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 burdened 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 ‘prevails’ when actual relief on the merits of his claim materially

alters the legal relationship between the parties by modifying 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 discretion in the allocation of mandatory student fees to various

organizations, thus protecting against viewpoint discrimination. Second, the University established an appeal procedure

to ensure that student fees are allocated in a viewpointneutral 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 maintain 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). Conversely, 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 collecting 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 concluded, [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 unchecked.” 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 impermissible factors from consideration by the University in its

funding decisions. Southworth II, 307 F.3d at 592-94. Specifically, 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 mandatory fee system violated the principle of viewpoint neutrality, and in response to the district court’s order, the University

adopted the detailed procedures, criteria, and appeals process governing funding decisions. The University did not challenge 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 reversed 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 University 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 consideration 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 This court also held in Southworth II that the University’s criterion 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 attendees, 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 expressive activities. Therefore, until such standards are adopted,

the University cannot use the mandatory fees of objecting students 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. 

established parties and speech.7 Id. The striking of those

criteria thus established a very important protection to the

Students’ right to a system of viewpoint neutrality.8

The University also argues that the Students did not obtain 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
22 No. 03-2314

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 demonstrates 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 neutrality 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 violates 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...)

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 Students 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

concrete and particularized interest.”9
No. 03-2314 23

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.

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 required 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 defunding 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
24 No. 03-2314

goal in the amended complaint—protection against viewpoint 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 prevail because they failed to prove that the University allocated funds in a viewpoint-discriminatory way. However,

as this court explained in Southworth II, “the prohibition

against unbridled discretion is a component of the viewpoint-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 because 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 ensures 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

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 determine whether similar RSO applications were treated equally.” Id.

at 589.

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 funding 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 succeeded in forcing the University to adopt funding criteria

and an appeals process10 which limit the previously unfettered discretion of the decisionmakers to assure compliance

with the constitutional mandate of viewpoint neutrality. Id.
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 discrimination. For many, if not most, of the requests for funding, the applicant’s viewpoint is obvious. The decisionmakers 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 purpose, 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 supply. 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 organization should have a lock on funding, and the distribution 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 challenged 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