Today’s post will provide principles that student fee allocation committees can rely upon when distributing fees and insight for student groups to determine if their rights are being violated (and they just don’t know it). As a recap, in my previous student fee post I wrote: “the committee [that allocates student fees to student groups] . . . must use objective, specific criteria when deciding how much each student group should receive.”
Student fee allocation committees need objective, specific criteria to guide their decisions so that they cannot hide viewpoint discrimination behind a veil of vagueness. After the Supreme Court’s decision in Southworth, the case returned to the court of appeals on the question of whether the criteria and funding methods of the University of Wisconsin violated viewpoint neutrality by granting the student government unbridled discretion. The United States Court of Appeals for the Seventh Circuit found that the university’s funding policy appeared facially viewpoint neutral at that time because the university promulgated an express policy prohibiting viewpoint discrimination, sanctioned officials for violating that policy, used specific criteria to allocate funding to student organizations, and imposed procedural requirements for funding hearings and appeals. These procedures, in theory, should minimize viewpoint discrimination and ensure equal access. But the court warned that many of the procedures could give rise to constitutional claims by student groups denied funds.
Without specific, objective criteria for allocating fees, fee allocation committees have unbridled discretion and can hide their viewpoint discriminatory motives. In Amidon v. Student Association of the State University of New York at Albany, the United States Court of Appeals for the Second Circuit described the danger of unbridled discretion this way: “it allows officials to suppress viewpoints in surreptitious ways that are difficult to detect.” In that case, the State University of New York at Albany provided a list of nonexclusive criteria that the student government used in determining whether to use a referendum to allocate funding. The court found these criteria constitutionally deficient for two reasons. First, the list of criteria was nonexclusive, which enabled the student government to “camouflage its discriminatory use of the referenda through post-hoc reliance on unspecified criteria.” Second, two of the criteria (concerning whether the “organization can demonstrate that it will expend funds for the enrichment of campus life,” and whether the “organization can provide services that complement the educational mission” of the university) were too “vague and pliable to effectively provide the constitutional protection of viewpoint neutrality.” When the government is charged with making decisions whether to grant or deny a permit for free speech activity, it must be guided by “adequate standards to guide the official’s decisions.”
Not just any criteria will suffice. The funding criteria should not be vague or unclear. They should be specific and objective, leaving little room for subjective interpretation of a student group’s activities or reasons for requesting funding. The criteria also cannot be based on how long the group has existed on campus nor how much funding the group received in prior years, because these things relate to the popularity of the group and lead to viewpoint discrimination. Criteria can examine how many people will attend the event for the purpose of determining how much pizza to fund, but they cannot veer into the popularity of the group (something I will discuss more in my next post).
How does your university fare? Let us know. We’re here to ensure that your university does not violate the Constitution when allocating student fees. Please leave a comment below to share your thoughts or follow us on Facebook to join the conversation. http://www.facebook.com/SpeakUpU
Next post: When the democratic process violates the First Amendment.