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On April 3, the Texas A&M University Student Senate approved a measure that would allow students to choose not to fund specific student groups. Specifically, the bill allowed "students who object, for religious and moral purposes, to the use of their student fees and tuition to fund various services to opt out of paying an amount equal to their share of the service funding from their fee and tuition money." The bill was originally titled the "GLBT Funding Opt-Out Bill" because its initial version only provided a choice not to fund the school's GLBT Resource Center. That language was cut after criticism that the bill was discriminatory on the basis of viewpoint. However, recognizing that the revised bill was still problematic, Student Body President John Claybrook vetoed it on April 4.
Supporters of the bill argued that students should not be required to fund organizations to which they object on religious grounds. But there are several reasons why this particular bill is not the appropriate answer to that concern.
First, the bill's origin as a measure that specifically targeted the GLBT Center presented a clear viewpoint neutrality problem. Allowing students to choose to avoid funding one organization but not others effectively discriminates against that organization based on its viewpoint.
Second, although the bill was amended to allow students to opt out of funding for other groups, it still conditioned that opt-out to individual students based on their viewpoints. The amended bill read:
The Texas A&M Student Senate shall ... allow students who object, for religious and moral purposes, to the use of their student fees and tuition to fund various services to opt out of paying an amount equal to their share of the service funding from their fee and tuition money. [Emphasis added.]
But only allowing students to opt out of paying student activity fees for "religious and moral purposes" itself constitutes viewpoint-based discrimination and therefore runs afoul of the principles embodied by the First Amendment. What if a student wanted to opt out of funding the College Republicans or College Democrats for purely political reasons? The language presented implementation problems, as well. For example, who would determine if the reasons given by a particular student were sufficiently "religious and moral"? (Though Committee Senators had agreed to amend this aspect of the bill as well, it had not been amended at the time it passed the Senate.)
It's useful to note that the Supreme Court has considered the constitutional and practical viability of the idea of a broad and neutral opt-out provision in a student fee system. In Board of Regents of the University of Wisconsin v. Southworth (2000), the Court held that allowing objecting students to opt-out of funding groups they don't agree with is constitutionally permissible, but not required by the First Amendment. The Court based its reasoning on the practical implications of such an opt-out system:
[I]t might be argued the remedy is to allow each student to list those causes which he or she will or will not support. If a university decided that its students' First Amendment interests were better protected by some type of optional or refund system it would be free to do so. We decline to impose a system of that sort as a constitutional requirement, however. The restriction could be so disruptive and expensive that the program to support extracurricular speech would be ineffective. The First Amendment does not require the University to put the program at risk.
Indeed, as the Court recognized, creating a broad opt-out system could result in a financial mess. Think about it: The total amount of available funds would decrease, and someone would have to track student money to a potentially impractical degree of specificity. At that point, the whole student activity fee system might best be scrapped.
So why doesn't the collection and distribution of mandatory student activity fees violate the First Amendment? After all, mandatory student activity fees certainly do force students to financially support, at least to a small extent, groups with whom they don't agree and may actively loathe. The Supreme Court conceded this reality in Rosenberger v. Rector and Visitors of the University of Virginia (1995): "It is all but inevitable that the fees will result in subsidies to speech which some students find ... offensive to their personal beliefs."
But as the Court explained in Southworth, student activity fees are designed in part to "stimulat[e] advocacy and debate on diverse points of view." In any forum that allows such debate, some students will inevitably find some viewpoints offensive. The university, the Court wrote,
may determine that its mission is well served if students have the means to engage in dynamic discussions of philosophical, religious, scientific, social, and political subjects in their extracurricular campus life outside the lecture hall. If the University reaches this conclusion, it is entitled to impose a mandatory fee to sustain an open dialogue to these ends.
Importantly, that purpose is sufficient to overcome the interests of objecting students only when the system is viewpoint neutral:
The University must provide some protection to its students' First Amendment interests, however. The proper measure, and the principal standard of protection for objecting students, we conclude, is the requirement of viewpoint neutrality in the allocation of funding support.
So while it is the university's prerogative to have a system that would be difficult to administer—as ill-advised as that may be—Texas A&M administrators still cannot allow or disallow students' funding choices based on their viewpoints, as this bill would have done.
In vetoing the measure, Claybrook described the university community as a family and said with respect to the negative publicity it was receiving, "The damage must stop today." The Student Government Association has released a statement saying that it does not plan on trying to override Claybrook's veto.
Though Claybrook's concerns are not identical to FIRE's, we are glad to see Texas A&M avoid the basic constitutional problems with this bill. With its improper inquiry into viewpoint and the inevitable complications with implementation, the bill would have put all student organizations at risk.