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Student Activity Fee Referenda: when the democratic process violates the First Amendment

Posted on June 3rd, 2010 Freedom of Speech | 1 Comment »

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.


ADF Senior Legal Counsel - University Project

Progress on 5 University Speech Codes

Posted on May 28th, 2010 Freedom of Speech,Uncategorized | 1 Comment »

Six weeks ago ADF allied attorneys launched an ambitious project seeking to eliminate unconstitutional speech codes in the Third Circuit (PA, NJ, and DE). Despite a clear and controlling Third Circuit decision in DeJohn v. Temple University, dozens of public universities under that Court’s jurisdiction retained their unconstitutional policies, threatening expulsion for students whose religious or other speech is deemed “offensive.” Whether they remain in place because of obstinance or indifference, these policies chill student speech. There is no need for an actual censor of student speech when a university can inform you that you can be expelled for “religiously offensive” speech and where university administrators get to decide whether you have “offended.”  The threat that another student will claim offense at the Gospel – potentially resulting in expulsion of the speaker – will cause many Christian students to self-censor just to get through school.  The First Amendment doesn’t permit this and the courts have consisently gotten this one right.

ADF allied attorneys Len Brown, Randy Wenger and Demetrios Stratis (with assistance from many more allies) sent letters to 5 schools – Rutgers, Indiana University of Pennsylvania, Westmoreland Community College (PA), Cheyney University (PA), and Delaware State. The letters, on behalf of students at each of the schools, specified how each policy is out of step with Third Circuit law and offered to assist the universities in revising their policies. These ranged from the “bias incident” policy at Rutgers that authorized punishment of students whose speech was perceived (however unfairly) as “malign[ing]” another’s religion or sexual orientation (with review over “bias incidents” and punishment for them left to Rutgers’ “Center for Social Justice Education and LGBTQ Communities”) and Cheyney’s ban on words or images that offend on the basis of religion (i.e. the Gospel to some or an image of Mohammed) to Delaware State’s ban on “offensive utterances.”

I’m pleased to let you know that while none have been finalized yet, all five schools have acknowledged the need to revise their policies to protect students’ free speech rights. ADF allies have again offered to assist the schools in conforming their policies to the First Amendment’s requirements and will be following up to ensure that the schools follow through. This is good news for anyone that favors robust protection for speech on campus.

In the next few weeks I hope to be able to share more specifics on the revisions to these universities’ policies as they are finalized. But in the meantime, if you are a student at a public university in Pennsylvania, Delaware, or New Jersey we want to hear from you.  These five schools are only the beginning of this effort.

Several other schools still retain unconstitutional speech codes and we would like to work with you to address them. Email me at if you would like to become part of this effort to free campus speech by eliminating unconstitutional speech codes.


Senior Counsel - Life

Friday Fun: Supreme Court Justices- They’re Just Like Us

Posted on May 28th, 2010 Uncategorized | No Comments »

The Justices on the United States Supreme Court sometimes seem larger than life.  Their superior intellect, tremendous success, and all the pomp and circumstance of the Court can sometimes create the impression that they are somehow above all the problems we mortals must deal with.

Check out what happened to Justice Kennedy a couple of years ago when he met some important government officials in China:

See?  Even Supreme Court Justices have embarrassing moments.  (Though, for most of us, our faux pas won’t result in a possible international relations crisis!)


ADF Legal Counsel - University Project

Great New SCOTUS Website

Posted on May 26th, 2010 Uncategorized | No Comments »

For those of you interested in following Supreme Court news and the confirmation process, our friends at the Federalist Society just launched a brand new website for that purpose:  SCOTUSReport.

Complete with multimedia, a news feed from top sources, and a blog feed, their website is a one-stop shop for those seeking information and commentary on the nominee and the process.  Check it out!

Please leave a comment below to share your thoughts or follow us on Facebook to join the conversation.


ADF Legal Counsel - University Project

Dear Atheists and Vegetarians of Penn State – Erie: Oops.

Posted on May 26th, 2010 Religious Liberty,Uncategorized | No Comments »

     Several months ago I was reviewing a policy at Penn State-Erie when I stumbled upon the “Safe Zone” at Penn State-Behrend (the Erie campus). I finally got around to blogging about the school’s decision to extend its “Safe Zone” coverage to atheist and vegetarian students – something I had never seen before. I observed that this left meat eating Christians in a dwindling class of students in the “Danger Zone” that is apparently the remainder of the Penn State-Behrend campus.

     Surprisingly, someone at Penn State – Behrend evidently read my blog and the school quickly altered its “Safe Zone – Behrend” to remove atheists and vegetarians.  (You can also view the same website here, with a delicious treat added).  This means that these woebegone classes have now been cast back to the lions (seriously, that’s their mascot) of Penn State – Behrend alongside the Christian, Muslim, Jewish, agnostic (who evidently were not convinced enough of the non-existence of God for the “Safe Zone”), omnivorous, and other students who must fend for themselves in the wilds of Erie, PA. Google cache still has the former “Safe Zone” website with your inclusion if you would like to relive those happier and more secure days.

     I do not know if Penn State – Behrend will be immediately revoking your “Safe Zone” cards or if there is some transitional grace period to allow you to reacquaint yourself with life in the “Danger Zone.”  But it was never my intention to see this fate befall you. The purpose of my blog post was to simply note the silliness of the whole “Safe Zone” idea and to demonstrate how it reveals the pervasiveness of the leftist mindset on university campuses that anyone perceived as non-conservative is a potential victim in need of protection from the school – even when the facts don’t support the narrative.  In fact, studies have shown that atheists are generally viewed positively by faculty and evangelical Christians are the only group that is viewed negatively by a majority of faculty.  The counterfactual leftism in Behrend’s treatment of vegetarians and atheists was truly E(e)rie. (I’ll be here all week).

 So as you re-enter the “Danger Zone,” it is incumbent upon me to offer you my well-wishes and a promise on behalf of Christians and meat eaters everywhere. This is particularly aimed at the vegetarian students but applies with equal force to the atheists as well. We promise not to eat you.

     It occurs to me that perhaps the confusion behind the inclusion of vegetarians in the Safe Zone in the first place was a misunderstanding about the eating habits of omnivores. In the remainder of the animal kingdom, it is true that vegetarian species might reasonably fear that they could be eaten by carnivores or omnivores. Perhaps a zoology professor at Penn State – Behrend, well aware of this and too focused on his work, was behind the inclusion of vegetarians in the safe zone out of an abundance of caution. But human beings – even those who eat meat on occasion – have traditionally abstained from eating grain fed vegetarian humans. I fully endorse this continued abstinence from cannibalism and trust that my fellow meat eating friends at Penn State – Behrend will as well.

As to the atheists, you can rest in the confidence that surveys actually show that most faculty members think warmly of you (unlike evangelicals) so you can probably still find refuge in any professor’s office.  But more importantly, God knows we Christians don’t want to see you harmed. Undoubtedly, you will think our Christian beliefs to be silly superstition. But the upside for you is that those “superstitions” check our sin natures and should hopefully give you some degree of confidence that we will not be plotting your destruction even if our reasons for restraint are unavailing to you. And since Penn State Behrend previously noted the difficulty of identifying atheists as a reason for including you in the Safe Zone, your anonymity might serve you well now.  (Though that Darwin fish eating the Christian fish on the back of your car isn’t doing you any favors).   

      Again, my apologies that my simple blog post has caused this upheaval in your lives. I will try to be more careful in the future.


Casey Mattox


Senior Counsel - Life

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