By Kerin E. Coughlin
As Profs. Emily Tai and Hugo Fernandez recently explained in their excellent post, Taking the Measure of Student Fees (Feb. 16, 2018), the CUNY Board of Trustees is considering revising procedures for allocating Student Activity Fees (SAF). Currently, students at each campus have primary control over SAF through their student government (SGA) budget process, and, in certain circumstances, through direct referenda. Proposed revisions to CUNY bylaws and fiscal procedures would (a) shift primary control over the SAF budget process from students to administration (through the president-controlled college associations), (b) prohibit referenda for determining funding of particular groups, such as NYPIRG, and (c) prohibit disbursements of SAF to non-CUNY organizations (among other effects).
The University Rationale
A main reason CUNY cites for the revisions are two federal court decisions regarding the constitutionality of SAF allocation processes: a 2000 U.S. Supreme Court decision titled Board of Regents of the University of Wisconsin System v. Southworth (529 U.S. 217) (“Southworth“), and a 2007 Second Circuit Court of Appeals decision, Amidon v. Student Association of the State University of New York at Albany (508 F.3d 94) (“Amidon“). As Profs. Tai and Fernandez’s post summarized both cases, it will suffice to note here that Southworth established the “viewpoint-neutral” requirement for SAF allocation processes to satisfy the First Amendment; and Amidon prohibited binding referenda to determine particular groups’ allocations (such as the Public Interest Research Groups, with which NYPIRG is affiliated), because such referenda are viewpoint-discriminatory in that they base funding on the majority viewpoint, and thus discriminate against the minority.
An Independent Legal Analysis
My review of these cases, and later cases implementing their findings, indicates that the cases do not require decreasing SGA’s control over SAF allocation processes, nor do they require prohibiting disbursements to non-CUNY organizations.
Nothing in the decisions indicates that viewpoint-neutrality requires shifting primary decision-making authority over SAF from students to administration, as the Task Force appointed by CUNY’s Board of Trustees proposes to do here. In both Southworth and Amidon, the SAF was allocated by a SGA-controlled procedure similar to CUNY’s, and neither the courts or the parties challenged the student-controlled aspect of those procedures. They only addressed the manner in which the SAF was distributed. Therefore, there is no reason to believe CUNY SGAs cannot allocate SAF in a viewpoint-neutral manner. However, the decisions do appear to prohibit referenda as a means of allocating funds to particular groups.
Implementing Southworth: Guidelines for CUNY?
CUNY SGAs’ capacity to allocate SAF in a viewpoint-neutral manner is particularly apparent from the decision of the Seventh Circuit Court of Appeals in Southworth, following the Supreme Court’s 2000 decision. In its 2000 decision, the Supreme Court established the “viewpoint-neutral” requirement, but it did not decide whether the University of Wisconsin’s SAF allocation process—which, like CUNY’s, was SGA-controlled—met the requirement. It sent the case back to the lower court for that determination. In 2002, the Seventh Circuit Court of Appeals held that the University of Wisconsin’s student-controlled process was viewpoint-neutral, and it specifically cited several student-controlled aspects of the process as especially reassuring that all students’ First Amendment rights were protected.
“Viewpoint-neutrality” also does not prohibit allocating SAF to off-campus organizations. Neither Southworth nor Amidon considered allocations of SAF to off-campus organizations. Thus, their decisions created no requirement in that regard. Indeed, the Supreme Court’s Southworth decision includes language about off-campus activities that indicates allocating SAF to off-campus organizations can be an appropriate, and even valuable, use of SAF, so long as it is done in a viewpoint-neutral manner.
“Viewpoint-neutrality” does, however, appear to preclude referenda as a means of determining allocations to particular groups. In addition to the Second Circuit’s explicit ruling to that effect in Amidon, the Supreme Court also noted in Southworth, without deciding, that University of Wisconsin’s referendum to fund WISPIRG “appeared” to violate viewpoint-neutrality.
These cases do not justify the infringement on students’ control over SAF that CUNY proposes—particularly where, as the Supreme Court stated in Southworth, the SAF is “exacted” for the “sole purpose of facilitating the free and open exchange of ideas by, and among, its students.”
Kerin E. Coughlin is an assistant professor of Law and Paralegal Studies at New York City College of Technology, and the UFS Parliamentarian.
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Image: remix S.Pasela. (K. Coughlin and public domain.)