Free Speech

University Decisions About Funding Student Groups Can't Rely on "Unbridled Discretion"

An interesting ruling involving the University of Minnesota, by Judge Patrick Schiltz (himself a former professor).


From Tuesday's decision by in Viewpoint Neutrality Now! v. Regents of the Univ. of Minn.:

Each semester, the University collects a mandatory student-services fee of approximately $443.00 from every student enrolled in six or more credits. The fee "funds non-instructional programs and activities; supplements the academic curriculum; and is an integral part of the University's educational experience." The fee is divided into three parts: a $411.50 Student Life, Health, and Wellbeing Fee; an $18.91 Student Activity Fee; and a $12.59 Media Fee. A total of about $36,000,000 is collected each year.

Under the Supreme Court's unanimous decision in Board of Regents v. Southworth (2000), such fees are constitutional if the money spent on student speech is distributed in a viewpoint-neutral way, because such funding for student group speech (as opposed to the speech of the university or of agents of the university) is a "limited public form." Judge Schiltz also concluded that the money can't be spent in a way that gives the decisionmaker "unbridled discretion," since such discretion can end up cloaking viewpoint discrimination. (He added that the analysis should apply equally to student groups funded from tuition dollars and not just student services fees.) And here is how he applied these principles:

[1.] The preferential treatment for media groups ("media groups may apply for unlimited operational funding, whereas other RSOs [Registered Student Organizations] may apply for no more than $25,000 in annual operational funding") is constitutional because it's viewpoint-neutral:

Plaintiffs do not challenge the adequacy of the safeguards that apply to the allocation of funds among eligible media groups. The media-groups handbook includes a prohibition on viewpoint discrimination; numerous specific viewpoint-neutral standards for evaluating applications for funding; deadlines for the application and decision-making processes; public presentations and deliberations; and a right to appeal. These safeguards are sufficient to ensure that the allocation of funds among eligible media groups is viewpoint neutral.

Plaintiffs also do not allege that any viewpoint discrimination has in fact occurred in connection with the allocation of funds among eligible media groups. To the contrary, the complaint acknowledges that both liberal and conservative media groups have received media-group funding.

Instead, plaintiffs argue that viewpoint discrimination occurred when the University established this public forum limited to media groups. According to plaintiffs, the University thereby engaged in viewpoint discrimination against RSOs that are not media groups. In other words, plaintiffs argue that the First Amendment bars the University from creating a public forum that is limited to media groups.

The Court disagrees. The University can limit access to a limited public forum so long as that limitation is viewpoint neutral. Here, access to the forum is limited to media groups, a restriction that has nothing to do with viewpoint. Plaintiffs have not put forth a coherent theory for how discriminating in favor of media groups (no matter their viewpoint) and against non-media groups (no matter their viewpoint) could possibly be considered discrimination on the basis of viewpoint.


[T]he process used by the University for determining who may participate in that forum—i.e., who may apply for media-group funding—is unconstitutional because it vests unbridled discretion in the VPSA/DoS [Vice Provost for Student Affairs/Dean of Students] ….

Like a school administrator who decides which clubs can use classroom space, the VPSA/DoS acts as a gatekeeper to a limited public forum by deciding which groups may have access to the forum (here, to media-group funding). And although a governmental entity may restrict access to a limited public forum—after all, that's what makes a public forum a limited public forum—those restrictions must be viewpoint neutral and reasonable and, most importantly for present purposes, cabin the discretion of the decision-maker. Here, the VPSA/DoS's discretion is not limited in any meaningful way, as the University's process lacks most of the basic safeguards identified in the unbridled-discretion cases:

First, the VPSA/DoS has "exclusive authority" to determine whether a group may apply for media-group funding. The decision is hers and hers alone.

Second, the handbook does not specify on what basis the VPSA/DoS must make her decision; it does not even require that her decision be viewpoint neutral….

Third, there is no deadline for the VPSA/DoS's decision. She can sit on a request for permission to apply for funding indefinitely.

Fourth, the VPSA/DoS is not required to participate in any kind of public deliberations, explain the reasons for her decision, or publish her decision. She can simply say "no" to a group that wants to apply for funding without explaining her reasons to the group or anyone else.

Finally, the VPSA/DoS's decision is final. A group that is denied permission to apply for media-group funding has no right to appeal….

[2.] "[T]he allocation of lounges in Coffman to the cultural centers" may also be unconstitutional, because it involves unbridled discretion:

As noted, the University admits that, consistent with its mission to promote diversity, it restricted access to the limited public forum that is Coffman by allocating space only to "identity-based" groups. According to the University, however, this did not represent viewpoint discrimination. One lounge is allocated to the Black Student Union, but Black students have different viewpoints. Another lounge is allocated to the Feminist Student Activist Collective, but feminist students have different viewpoints. And so on. Thus, says the University, it did not discriminate among viewpoints in allowing only identity-based groups to have access to the limited public forum.

Plaintiffs disagree. According to plaintiffs, limiting the public forum to only identity-based groups is itself a form of viewpoint discrimination, because the one thing that every identity-based group has in common is the viewpoint that identity-based groups are a good thing and should be privileged by the University. This is a "viewpoint," say plaintiffs—and it is a viewpoint not shared by those who believe that it is illegal, immoral, or divisive to encourage identity-based groups or give them preferential treatment. Limiting space in Coffman only to groups that share the University's viewpoint that identity-based student groups should be promoted—and completely excluding groups that do not share that viewpoint—is viewpoint discrimination, according to plaintiffs.

The Court finds this to be a difficult issue. The Court need not decide the issue, however, because plaintiffs have pleaded facts that—if true—establish that the University violated Southworth in a different way when it decided who would have access to the limited public forum that is Coffman.

According to plaintiffs, the process of allocating space in Coffman vested unbridled discretion in the decision-maker. In other words, plaintiffs argue that even if discriminating in favor of identity-based groups over other groups is not viewpoint discrimination, the allocation was nevertheless unconstitutional. There was no application process; the decision-maker (whomever that was) was not forbidden from discriminating on the basis of viewpoint; no standards of any kind guided the decision-maker; no deadlines applied to the decision-making process; the decision-making was not done publicly; and there was no right to appeal.

If plaintiffs are correct—and, at this stage of the litigation [the decision on the University's motion to dismiss], the Court must assume that they are—then the discretion of the decision-maker who allocated the space in Coffman was about as "unbridled" as discretion gets. None of the criteria on which courts have insisted were in place.

{[T]he University argues that its allocation of the lounges is the University's own speech and thus exempt from First Amendment scrutiny by virtue of the government-speech doctrine…. [But t]he designation of the lounges in this case is materially indistinguishable from the designation of the classrooms in Good News Club and Lamb's Chapel. The schools in Lamb's Chapel and Good News Club opened their classrooms to after-school meetings and decided which clubs could use the classrooms, just as the University opened Coffman to student groups and decided which groups could use the lounges. In this case—as in Good News Club and Lamb's Chapel—the purpose of opening the spaces was to facilitate private expression, not to engage in governmental speech. And thus in this case—as in Good News Club and Lamb's Chapel—the allocation of the spaces must be viewpoint neutral. Indeed, the University concedes that it has "created a limited public forum on the second floor of the Union by setting aside space for identity-based cultural centers." …}

[3.] On the other hand, "the University's website promotes the cultural centers but no other RSOs" is constitutional:

[B]ecause what the University says on its own website is government speech—and because the Southworth framework applies only when the government promotes private speech—the University does not have to act with viewpoint neutrality in deciding what to say on its website.

[4.] The University's denial of funding "to all partisan political organizations" is viewpoint-neutral (though content-based) and thus permissible when it comes to a limited public forum such as this.

[5.] Plaintiffs' argument "that the University violates the First Amendment because it does not provide a way to appeal its policy decisions, such as the decision to create the limited public forums that are the subject of this lawsuit" "is frivolous":

Like every other unit of federal, state, and local government, the University makes thousands of policy decisions—e.g., decisions to raise or lower tuition, to expand or shrink the size of the English Department, to require or not require applicants to take standardized tests, or to create or not create a limited public forum. Nothing in the Constitution requires that the government must provide a way to "appeal" every policy decision that it makes—including a decision to establish a limited public forum.

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  1. Judge Schlitz?

    Give me an Ivy League judge named after a craft beer.

    1. That’s funny, Wikipedia says he went to Harvard Law.

    2. Better than a judge named Lawless.

      1. Funny would be a real life judge with the last name Dredd.

  2. Denying space to partisan political speech is not content neutral. It says that the University favors non-partisan speech over partisan speech. This disfavors speech that views society through political eyes, rather than apolitical eyes.
    Hope this is later reversed or reconsidered.
    Also, there can hardly be a more content based restriction than to fund only those who espouse tribalism and not those who oppose it, i.e., those who support Enlightenment ideals.

    1. The larger issue often overlooked is the extent to which the majority of the student body is not being served by the fees they are paying.

      We can complain about student abuse of alcohol & drugs — which is a *real* issue on college campi today — but the real issue is that most of the kids have nothing else to do their social needs are being ignored.

      The abuse is hidden — students are bright enough to lie — but it’s arguably worse now than it was in the 1970s when it was only on the weekends. “Blacking out” two or three times a week — every week — is considered “normal” and this is amongst the “good” students. It’s scary.

      And what struck me at UMass on weekends was watching all the students going off-campus while lots of non-students came onto campus for the purported “student” events.

    2. Denying space to partisan political speech is not content neutral.

      Yes, that’s what it says:

      “[4.] The University’s denial of funding ‘to all partisan political organizations’ is viewpoint-neutral (though content-based) and thus permissible when it comes to a limited public forum such as this.”

  3. This may become the inevitable Southworth II that a lot of us expected 20 years ago. O’Connor’s arguably asinine decision was based on the presumption that resources (in that case money, but space applies as well) were infinite and hence the mandatory fees were not compelled speech because students had equal access to speak their own speech.

    My jaw dropped when I read that because I was then at UMass and knew that over half of the fee revenue went to groups that explicitly identified by race or ethnicity. And that fee allocation was at the exclusive direction of the elected student government assembly.

    I’m just surprised that it took 20 years as there is no way that any institution could possibly meet O’Connor’s standard, even with a purportedly neutral administrator doing the allocation, as is the case here.

    I’m not aware of a public university anywhere that comes close to meeting her standard — let alone the roadblocks which exist in merely organizing groups outside the desired penumbra.

    And it isn’t like a White Student Union would be tolerated, although several have been attempted over the past 30 years — often by non-White students seeking to protest the racial identity groups.

    My guess is that the university will attempt to moot out this case but the issue remains. And I’m waiting for the state legislatures to step in because a lot of them are to the right of Vladimir Lenin, while the university sponsored groups *aren’t*…..

    1. The other related issue are the PIRGs — the Ralph Nader-organized Public Interest Research Groups — in just about every state.

      That actually has to be a “negative checkoff” — i.e. you can deduct it from your student bill if you wish (*if* you figure out that you can) — but they are the ONLY political action group empowered to do this. And their explicit focus is off-campus political lobbying for leftist causes, e.g.:

      Under the Southworth mandate, other lobbying groups ought to have equal access to student bills, and don’t.

    2. O’Connor’s arguably asinine decision was

      imaginary. O’Connor did not write the opinion (or any opinion) in Southworth.

      was based on the presumption that resources (in that case money, but space applies as well) were infinite and hence the mandatory fees were not compelled speech because students had equal access to speak their own speech.

      That was not, in fact, the reasoning of the case.

      1. Always with the facts and his reality-based world, this Nieporent.

  4. I’m sure Italian, Irish, English, Armenian, Scots, German, French, Spanish (distinguished from Hispanic), Scandinavian, Russian, Polish, or Ukrainian Student Groups based on identity would be accepted as well as many others.

    In fact is one wished to combat identity groups one could establish all of the examples listed and more, I would qualify for several of them and my wife for several others.

    BTW what is the definition of a “media group”?

    1. I will tell you exactly what would happen to any group of students who were stupid enough to try something like this.

      First, you have to have a group to even apply, usually it’s 10-15 students — you can’t apply as an individual. And I’ve always wondered why what are *individual* Constitutional rights only exist in a group format, but I digress…

      Second, the university will implicitly (or explicitly) tell you that you will DIE if you actually try to do something like this, that the racial activists (aka “thugs”) will murder you and that the university and the campus police have no intention of preventing them from doing so, nor of protecting you.

      And Third, if you persist and are able to convince the campus thugs that they really don’t want to deal with you, then the university will declare you “crazy & dangerous” and send the Behavioral Intervention Team after you, at which point *all* of your Constitutional rights go into the shredder. All of them….

      And the university doesn’t have to do this to too many students to silence the rest — and while I have a great deal of respect for FIRE, this is something that they truly do not comprehend.

      1. The other thing to remember here is that universities will only deal with *groups* of students, not individual students — and they’ve made it virtually impossible for students to find (let alone contact) like minded students.

        Facebook — the evil Facebook — was born because Harvard wouldn’t permit people living in one house from accessing the contact information of fellow students living in other houses (and hence contacting them). What Mark Zuckerberg did was create a linkage between these intra-house databases.

        It’s really Orwellian how much universities have prevented students from being able to contact other students — outside of approved university contacts. It’s very much like how a cult seeks to prevent recruits from contacting people outside of the cult leadership.

        1. Facebook — the evil Facebook — was born because Harvard wouldn’t permit people living in one house from accessing the contact information of fellow students living in other houses

          No, it wasn’t.

  5. I wonder if some students could challenge this forced fee on the same basis that some union members challenged paying dues to support speech they disagreed with.

    1. Good question, see pp. 198-200 of Will Baude’s and my article about Janus.

      1. Respectfully, Professor Volokh, please note that this ‘decision’ (and I know it isn’t really one) was based on a situation where a university administrator (and not a student government) was doing the allocation.

        Hence, I’m not sure that the distinction you make between tuition and fee would be upheld because while it was a fee here, it was the same university administrator who would have been allocating it had it been combined into the tuition.

  6. Erick Kaardal? The Erick Kaardal recently ordered to explain why disciplinary action should not be the response to his work for Trump Election Litigation Elite Strike Force? Taking a right-wing grievance to a former Scalia clerk?

    Sounds like as favorable a shot at these plaintiffs could hope for.

  7. This is a little off-topic, but I haven’t been able to find an answer elsewhere, so I’ll just throw out my hypothetical question here.

    It appears that land-line phone companies like ATT are what are called “common carriers” and so ATT could not ban Trump from getting ATT land-line phone service if he wanted it and they offered service where he lived.

    My question is this: Are Apple and Google common carriers with respect to their iPhone and Android phone operating systems? And if not, could Apple or Google ban Trump from using an iPhone or Android phone?

    This is the only hit I get when I search and it doesn’t give me a clear answer:

    And if they could ban Trump, or anyone for any reason, from using their phones (or in Android’s case any phone using the Android operating system), are there any other cell-phones that don’t use Apple or Android operating systems?

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