On Tuesday, a federal court ruled in favor of a chapter of a pro-life organization, Students for Life, at California State University, San Marcos, with respect to some challenges it brought against the public university’s distribution of student fees.
The organization sought funding for a pro-life speaker through three different funding mechanisms established through the university’s student fees. Under the First Amendment, distribution of student fees must be viewpoint-neutral. (FIRE recently introduced a model system for allocating student fees in a viewpoint-neutral manner.)
The Students for Life chapter had no success with any of its attempts to secure funding, but not every denial was impermissibly viewpoint-based.
The first attempt, seeking funding from a leadership fund, was rejected not because of the group’s viewpoint, but because it failed to include an itemized budget and details concerning the event, as required by the leadership fund’s guidelines. The organization “attempted to cloak its funds request for a speaker fee/honorarium as a general expense request” to get around the guidelines’ prohibition on funding speaker fees, regardless of the speaker’s viewpoint.
Other challenges were more successful. First, one funding mechanism provided funding on a first-come, first-served basis, which was a viewpoint-neutral method, but the policy did “not contain any express policy prohibiting viewpoint discrimination,” and organizations were asked to describe the purpose of their proposed events. It’s not clear why a first-come, first-served policy isn’t inherently viewpoint-neutral, but organizations were asked to explain the “event’s purpose” and “benefit,” suggesting that the student government administering the funds was engaged in some subjective evaluation. These inquiries, the court explained, “provide the decision-making officials unbridled discretion to promote or suppress certain viewpoints” based on their subjective evaluation of the “purpose” of the event.
The student government also had a budget, funded through student fees, to establish its own programming and to cosponsor events. The court held that this was not “government speech,” a classification of funding that would have meant that the student government could fund or cosponsor events at will, even if it meant discriminating on the basis of viewpoint. The court held that “government speech comes into play” when the speech was both “financed by tuition dollars,” as opposed to student fees, and the “University and its officials were responsible for its content.” Here, however, the funds were derived from student fees, which the court says is “reason alone” to hold that this system must be viewpoint-neutral. (This could be problematic for the University of Tennessee at Knoxville, where administrators are trying to modify student funding mechanisms to mollify legislators’ objections to Sex Week.)
Finally, the court found that funding through “community centers” violated the First Amendment for similar reasons: The centers were established through student fees and distribute funding to particular events but had no criteria for how they made decisions to distribute funds.
Notably, the court declined to extend the Supreme Court’s 2018 holding in Janus v. AFSCME, in which the Court struck down the imposition of mandatory, public sector union dues on nonmembers, citing the First Amendment. Some warned — most notably Eugene Volokh and William Baud — that Janus could lead to First Amendment limits on students’ ability to collect student fees for campus activities. (For a contrary view offered by Erwin Chemerinsky and Catherine Fisk, see here.)
For now, at least, one court has said no:
As an initial matter, this Court finds that the Janus court’s prohibition of extracting union dues from nonunion members does not call for a wholesale invalidation of CSUSM’s mandatory ASI fee. To the extent Plaintiffs contend mandatory student fees should be invalidated under Janus because it overruled Abood, the Court notes that Abood is only the beginning of the analysis here in that the reasoning Abood sets forth mandates that a university cannot require student to pay subsidies for speech of other students without some First Amendment protection. Southworth, 529 U.S. at 231. Along that line, this Court finds that Janus supplanting Abood did not undermine this safeguard. The Southworth court previously instructed that Abood’s germane speech standard is unworkable in the public university context as “[i]t is all but inevitable that the fees will result in subsidies to speech which some students find objection and offensive to their personal beliefs.” Id. at 232. The Court here believes Janus bears little significance in the public university context where the case law and the parties all agree that schools have expansive latitude in the manner educational missions are implemented. See Rosenberger, 515 U.S. at 833. Thus, Plaintiffs’ reliance on Janus to invalidate the mandatory student fee system is misplaced here.
That’s the right result. Student fees, if they are distributed in a viewpoint-neutral manner, do not present the same First Amendment concerns with respect to compelled subsidization. Student fees are intended to facilitate funding of a range of views, advancing the compelling interest of a university in promoting diversified discussion. A natural byproduct of this system is that some student fees will fund speech that some (or even many) students find objectionable, but those students also have the opportunity to fund speech they agree with, unlike union fees, which would ultimately fund only the views that the union itself supported.
But that’s only viable if the distribution system is viewpoint-neutral. Because it was not in this case, the students here were required to fund views they found objectionable without the ability to secure funding for their own events.