As Adam explained here on The Torch on Tuesday, Alvaro Watson, president of the Temple University student group Temple University Purpose (TUP), informed FIRE recently that the Temple Student Government (TSG) maintained an unwritten discriminatory policy. The policy, enforced by the Allocations Board, would deny funding to student groups for speakers who are "offensive"—or not "inclusive" and "friendly." When Watson questioned the constitutionality of this unwritten policy with help from FIRE, Allocations Board Chair Mark Quien replied that questions of constitutionality were irrelevant!
If an honorarium insults or offends a large portion of that student body, that speaker will not be funded by Allocations, because the money used was provided by everyone not a special interest group.
Luckily, less than 24 hours after TUP challenged the policy with FIRE’s help, the policy was rescinded. Quien backpedaled from his previous implication that funding would be allocated in a viewpoint-discriminatory manner, stating:
Contrary to what was stated on Saturday, allocations’ proposals are not reviewed based upon the content of the program.
We at FIRE are glad that Quien acknowledged that the TSG won’t discriminate when it comes to allocations. Plenty needs to be improved on paper, however, before TSG’s policies can fully pass constitutional muster and earn a "Most Improved Free Speech Policy" medal. (Note: this does not exist.)
First, the Allocations Board needs to clarify which allocations guidelines are actually being followed: Are they the guidelines on the Student Government website, or those that Quien recently e-mailed to student organization representatives, or the ones posted on the Student Affairs website?
Having to deal with three different policies makes it unnecessarily difficult for students to obtain funding. The confusion means that Temple is failing to provide the clear, objective rules that students deserve and that the Allocations Board need in order to treat each request fairly and equally.
Furthermore, all three policies contain subjective criteria that allow for viewpoint discrimination. For example, Section 2 of the "The Complete ’10-’11 Allocations Guidelines" reads:
Programs must be designed to contribute to the educational, cultural and/or social needs of various student populations.
In Quien’s e-mail, he reiterates the aforementioned guideline and adds another unconstitutional one:
Value of the program—Does the program offered possess an educational, social, or cultural value?
Need for a program—Does the program relate to current events or directly benefit students? Does the addition of this program add to the diversity of programming on campus?
The "Funding Your Organization: TSG Guidelines" located on the Student Affairs website include perhaps even vaguer guidelines, including:
Cost/Benefit – What is the per capita expenditure for participants or attendees? Is the need served and benefit derived from the program worth the per capita expenditure?
The criteria in all three of these policies are arguably impossible to apply without allowing an unacceptable amount of subjective discrimination to intrude into the allocations decision. Who’s to decide whether a certain program possesses "educational, social, or cultural value" or that the "benefit derived from the program [is] worth the per capita expenditure"? Lacking a clear student consensus regarding these criteria, it’s likely that Quien and the Allocations Board would be the ones deciding on the "need" for and "value" of particular programs without any definite guidelines to prevent wholly arbitrary decisions.
This result violates settled law holding that viewpoint discrimination in funding for student groups is illegal at public universities. In Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995), the Supreme Court ruled that universities using student fees to fund a multiplicity of independent student groups may not engage in viewpoint discrimination when allocating funds. The Court affirmed in Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000), that public universities must ensure that all student fee money distributed to student organizations is distributed in a viewpoint neutral manner.
All of the Allocations Board’s funding policies named above disregard, to varying degrees, these legal precedents and leave the door wide open for the Allocations Board to engage in viewpoint discrimination. If TSG cares about protecting student rights, it will publish one clear allocations policy with definite, subjective guidelines in order to eliminate any wiggle room for content-based funding decisions.
As for Alvaro Watson and Temple University Purpose, they plan on hosting an event on October 7, 2010, which is contingent upon the board’s decision this Friday to allocate them funding. If the Allocations Board decides that there is no "need" for the program or that it contains insufficient "value," we will know that the Temple Student Government has not learned its lesson—and that FIRE likely will have to educate TSG about First Amendment rights once again.