My last post discussed the criteria student activity fee systems must use when allocating money to student groups.  Today, I examine the constitutional implications of melding student fee allocation with the democratic process:  the student fee referendum.  First, some clarifications.

When I refer to a student activity fee referendum, I mean a democratic vote held on a college campus whereby students vote “yes” or “no” on funding a particular student group.  I do not mean student referenda that decide whether general fees paid by students should increase or decrease next academic year.  The latter is a system, used widely in California, whereby students vote whether their fees (usually nonallocable fees that fund the student union, bookstore and other campus services) should increase by X% in the following year.  An example of this type of referendum can be found here.  In this post, I focus on referenda that determine whether a particular student group gets to charge each student $10 per semester to fund its activities.

The Supreme Court has ruled that as a condition for requiring students to pay a student fee that funds disagreeable speech, universities must allocate the fees on a viewpoint neutral basis.  When students vote to fund particular student groups via a referendum, they violate viewpoint neutrality.  In Southworth, the University of Wisconsin distributed the fees, in part, through a referendum process.  While the legality of the referendum was not directly before the Court, the opinion states that “[t]o the extent the referendum substitutes majority determinations for viewpoint neutrality it would undermine the constitutional protection the program requires.  The whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views. . . . Access to a public forum . . . does not depend on majoritarian consent.  That principle is controlling here. ”  Thus, the Court determined that allocating student fees by referendum violates viewpoint neutrality.

Recently, in Amidon v. Student Association of the State University of New York at Albany, the United States Court of Appeals for the Second Circuit held that student activity fee referenda violate viewpoint neutrality.  SUNY-Albany required every student to pay a student activity fee, which it distributed to student groups through a budget submission process or a student referendum.  To access the referendum process, a student group had to gain the approval of two-thirds of the student senate or submit a petition signed by at least 15% of the student body.  If the petition was successful, the student government used a nonexclusive set of criteria to determine whether to use a student referendum to help calculate how much funding a group should receive.  Yet, the student referenda were advisory and were not binding on the student government, which made the final funding decisions.  A few students filed a lawsuit challenging the facial validity of the advisory student referendum under the First Amendment.

The Second Circuit held that the advisory student referendum violated viewpoint neutrality because it “creates a substantial risk that funding will be discriminatorily skewed in favor of [student groups] with majoritarian views,” which violates Rosenberger and Southworth (for a full discussion of these cases, see my first postin this series).  Even though the referenda were only advisory in nature, the court found that while the student government was “free to disregard a viewpoint-discriminatory, advisory referendum, this practice nevertheless injects a substantial risk of undetectable viewpoint discrimination into the allocation process.”  The court noted that an advisory referendum could be constitutional depending on what protections there is for viewpoint neutrality, but found that SUNY’s system still violated viewpoint neutrality because it provide a nonexclusive list of criteria that the student government used to determine funding and a couple of the criteria were too vague.  I am not aware of adequate protections that would cure the constitutional defects in a referendum system, even an advisory one.  Accordingly, the Second Circuit struck down SUNY’s advisory student fee referendum.

On May 11, 2010, the ADF Center for Academic Freedom sent a letter on behalf of Collegians for a Constructive Tomorrow to the University of Connecticut concerning its student activity fee system.  UConn uses an advisory student activity fee referendum to determine which groups may have a special student fee for their activities.  Yet, UConn’s referendum suffers from the same defects outlined in Amidon.  Even though the referendum is advisory, it “injects a substantial risk of undetectable viewpoint discrimination into the allocation process.”  “Viewpoint discrimination arises because the vote reflects an aggregation of the student body’s agreement with or valuation of the message [a student group] wishes to convey.”  UConn’s referendum favors popular groups over smaller groups and injects viewpoint into the decision-making process.

UConn’s fee policy also requires student organizations that want to establish a new fee to submit a petition containing the signatures of at least 200 students.  Like the referendum system in Amidon, this necessarily favors popular student organizations over less popular ones and gives preference to majoritarian views on campus.  The petition requirement benefits groups, like the Public Interest Research Group, who advocate popular views on campus, and penalizes smaller, newer groups, like CFACT, who may not be able to gather the requisite amount of signatures for the petition.

UConn’s advisory student referendum and petition process for obtaining a new student fee is in conflict with Amidonand First Amendment jurisprudence because it places student groups with majoritarian views in a better position to receive funding than minority groups.  Student fees and the democratic process simply do not mix well.  It would behoove UConn to eliminate this system and make student fee funding fair for all student groups.  Stay tuned to see if they correct the problems.