Earlier this year, I posted about a new case we filed against Oregon State University officials because of their censorship of an independent student newspaper on campus.

As a refresher, the students in this case discovered one day last winter that all of their distribution bins on campus were missing.  Believing they were stolen, they contacted the police, who investigated the matter and found that no contrarian thieves were responsible for the missing bins and papers (as has been the case at many other schools)—instead, it was the OSU administration.   The students were informed of the location of their bins and arrived at a storage yard to discover this:

OSU’s purported reasons for this are detailed in my previous post, but in summary, they just didn’t add up.  For months, the students tried fruitlessly to convince the administration to allow them to put their bins back on campus.  Once it was clear that the university intended to simply ignore the students’ pleas for equal treatment, we filed the lawsuit in federal court.

The good news is that after being sued, the university finally relented, changed their policy, and allowed The Liberty to replace their distribution bins on campus, giving them access equal to the other student newspaper on campus.   The bad news is that despite the fact that the paper’s distribution bins were banned from most areas of campus for nearly an entire year pursuant to OSU’s policy, the judge found that the students had suffered no constitutional harm and dismissed the case.

We believe that the law is clear that a state university’s year-long period of censorship of student journalists constitutes a violation of their First Amendment rights.  We trust that the Ninth Circuit Court of Appeals will agree.

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.

Four years ago today, Ruth Malhotra and Orit Sklar took a stand for liberty at their public university, or in this case, their Institute.  While students at Georgia Institute of Technology, Malhotra and Sklar were subject to discrimination because of their religious and conservative views.  Their experiences were not isolated, but designed by an administration hostile to free speech.  Georgia Tech policy prohibited “acts of intolerance,” limited student free speech to the small amphitheater on campus, preferred some religious denominations to others in campus training programs, and prohibited religious students from gaining equal access to student fees (even though the student fees were mandatory).  When these policies and their experiences became intolerable, they sued.

The lawsuit eventually ended, but not until the speech code was removed, the student speech zone eliminated, and the religious discrimination stopped.  Along the way, did the campus community rally to their support in favor of free speech?  No.  Instead, people sent death threats, students started a group to intimidate Malhotra, and the administration created a council called “Finding Common Ground” to dialogue about diversity and criticize the efforts of these two women.

Four years later, Malhotra and Sklar will speak tonight about their experiences and the success of their lawsuit at Georgia Tech.  Much was accomplished by these women, but there is still work to be done.  Despite Supreme Court case law to the contrary, Georgia Tech still believes it can exclude religious activities from student fee funding.  Who will be the next person to stand for liberty at Tech? Keep reading… »

In my recent post, Student Fee Flop, a student at the University of Pittsburgh raised an excellent point that I thought deserved further discussion. Basically, the student said that the Student Government Board (SGB)—not the University—was in error when the SGB refused to allocate student activity fee funds to Students for Life because of the campus group’s pro-life viewpoint. But even though the SGB allocates the student activity fees, the University itself violated the Constitution. How is this so?

When it comes to student activity fees, public universities engage in a constitutional “bargain,” so to speak. A university wishing to impose a mandatory student activity fee to fund student speech must affirmatively ensure that those fees are allocated in a viewpoint-neutral manner, regardless of who does the allocating. A university that desires to fund only certain student viewpoints must relinquish the mandatory nature of the student activity fee. Pitt has chosen the former route, and so it has elected to shoulder the constitutional duty to ensure that the fees are distributed without regard for the views of the students requesting such funds. It cannot avoid this duty by passing the buck to the SGA. In fact, Pitt breached this duty even before SFL was denied funding, as it imposed the student activity fee without safeguards in place to prevent viewpoint discrimination. As the Supreme Court held in Southworth:

Viewpoint neutrality is the justification for requiring the student to pay the fee in the first instance and for ensuring the integrity of the program’s operation once the funds have been collected.

To remedy this constitutional deficiency, Pitt must establish clear, precise and exhaustive standards to guide the SGB’s allocation decisions and to eliminate the subjectivity currently inherent in the process. Until that time, Pitt will violate the Constitution every time it exacts the student activity fee, and student organizations’ First Amendment rights will remain subject to the whim of the SGB.

Free speech violations manifest themselves in many forms on America’s campuses. Perhaps one of the most frequent—and misunderstood violations—concerns the distribution of student activity fees.

In Rosenberger v. Rector & Visitors of the University of Virginia, and Board of Regents of University Wisconsin System v. Southworth, the Supreme Court explained that public universities requiring students to pay student activity fees must ensure that those fees are distributed in a viewpoint-neutral manner. In other words, the university cannot consider a student organization’s mission, goals, or views when allocating the student activity fee funds.

But all too often, universities ignore this constitutional command. Take, for example, the Student Government Board (SGB) at the University of Pittsburgh. The SGB initially denied Students For Life’s request for $1,515 to attend the National Students for Life Conference and the March for Life in Washington D.C. on the grounds that the group was “proselytizing” for its cause. The SGB President’s reasoning was telling:

“The fundamental purpose of this group is to promote an opinion, traditionally that of a religious perspective. Therefore I would disagree with the fundamental existence of the group, and so therefore, it was my opinion that this group is going to proselytize as a lobbying organization.”

Really? And other groups on campus don’t “promote an opinion?” At Pitt, there are thirty-two “Political & Advocacy” student organizations—not including religious groups—that promote a wide array of causes and beliefs and are eligible to receive student activity fee funding. Even the student abortion advocacy group, Campus Women’s Organization, is eligible to receive student activity funds.

The SGB ultimately reversed course after its discriminatory decision was publicized by the student newspaper. But this situation highlights the double-standard that public universities regularly apply to pro-life and religious speech. Indeed, even a Pitt campus activist who opposes SFL’s message recognized this:

I am disturbed by [the President’s] comment that “[...] I would disagree with the fundamental existence of the group”. On first glance, [the President] seems to be saying that he disagrees with the right to free exercise of religion, which seems unamerican to me. More to the point, his support of a denial of funds to this group appears to be censorious. His words, as included in this article, betray a disturbing lack of faith in democracy.

As a woman who volunteers as an escort for Pittsburgh’s Planned Parenthood (where pro-life students regularly protest) I believe all people have a right to voice their opinions publicly, whether this expression is termed “protesting”, “lobbying”, or “proselytizing”. . . .

I take it as an article of faith in the democratic process that all people may enter into the sloppy, messy conversation that is American politics. I believe that it is only through passionate conversation we as a nation can reach a better future. Censorship has no role to play in our democracy, even censorship cloaked as political correctness.

[The President] does pro-choice students no favors by denying pro-life students their voice. By hobbling Student’s for Life’s expression, [The President] is implying that pro-choice students are so ill-equiped to make their case that the Student Government Board must silence their opposition for them, rather than allow the two communities to debate freely.

This conference is a professional development opportunity, an opportunity for Students for Life to make its case heard in our nation’s capital, and a trip which has historically been supported by the Student Government Board. It is a show of bad faith that this group has been denied travel funds, and speaks against the Student Government Board’s commitment to democratic debate.

This student eloquently explains the proper, constitutional role public universities must take with respect to student activity fees, and student expression in general. It’s time university officials started listening.