The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
Nonetheless,
[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.
