Turning Point USA Executive Director Charlie Kirk / Shutterstock

Reminder: You can’t defund a student organization just because you disagree with it

By December 22, 2017

Student organizations play a pivotal role in the social, intellectual, and civic development of college students. They allow students to lead, organize, advocate, debate, serve their communities, and think critically. Recognizing as much, every college or university has some form of system for student organizations, often involving student governments, to obtain recognition and funding — which typically comes from mandatory fees paid by every student for the purpose of enhancing extracurricular opportunities on campus.

Unfortunately, FIRE far too often sees students try to deny others access to those resources because of disagreement with their peers’ views or expression. Yesterday, a concerning report in The New Yorker alleged that a Turning Point USA brochure aimed at donors laid out a plan to use TPUSA student government members to defund progressive organizations on campuses across the country.

If this report is accurate (The New Yorker has not posted the full brochure on its website), it is deeply troubling. As we have reminded countless colleges and universities, any attempt to defund student organizations based on their beliefs or expression is unconstitutional at a public institution, and a violation of free speech guarantees at private institutions making such promises.

The guiding principle in student organization funding is not a new one. The Supreme Court squarely decided the matter in Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000), where it held that mandatory student fees distributed to student organizations must be allocated in a viewpoint-neutral manner.

In Southworth, students challenged the University of Wisconsin’s mandatory student fee, alleging that it infringed on their First Amendment rights by forcing them to subsidize expression with which they disagreed. Rejecting this argument, the Court held that objecting students’ First Amendment rights are protected by the principle of viewpoint neutrality:

When a university requires its students to pay fees to support the extracurricular speech of other students, all in the interest of open discussion, it may not prefer some viewpoints to others. . . . Viewpoint neutrality is the justification for requiring the student to pay the fee in the first instance and for ensuring the integrity of the program’s operation once the funds have been collected. We conclude that the University of Wisconsin may sustain the extracurricular dimensions of its programs by using mandatory student fees with viewpoint neutrality as the operational principle.

Put differently, because colleges and universities collect the fee to subsidize all student expression rather than some particular expression, the fact that some portion of a student’s money funds expression that they disagree with does not pose a constitutional problem. Students pay into the system, rather than any particular expression.

Accordingly, the Southworth Court also expressed skepticism that a system of funding or defunding student organizations by a majority vote could pass constitutional muster:

[I]t appears that by majority vote of the student body a given RSO may be funded or defunded. It is unclear to us what protection, if any, there is for viewpoint neutrality in this part of the process. To the extent the referendum substitutes majority determinations for viewpoint neutrality it would undermine the constitutional protection the program requires. The whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views.

Any designs to attack the funding of student organizations based on their progressive ideology run directly counter to the principle of viewpoint neutrality, and are flatly inconsistent with basic principles of freedom of expression. As an organization that claims to stand for free speech, TPUSA must understand that viewpoint neutrality is essential; without it, TPUSA chapters are as vulnerable — if not perhaps even more vulnerable —  to attacks on their funding as any of the progressive groups that TPUSA would allegedly like to defund.

Indeed, TPUSA should know better. FIRE has repeatedly come to the aid of TPUSA chapters that have faced difficulty obtaining official recognition due to opposition to the group’s political stances, and will continue to do so. And the very same principle of viewpoint neutrality is what requires colleges and universities to grant TPUSA chapters official recognition no matter how many students on campus oppose their message.

We will also continue to defend the rights of students and faculty to criticize TPUSA, and if this reported plan were carried to fruition, we stand ready to defend the rights of any organization targeted for defunding based on its viewpoint. Student government power, like the tides of public opinion, is susceptible to dramatic (and rapid) shifts. Violating the expressive rights of others will only increase the likelihood of one’s own rights being attacked in the future. In this case, an eye for an eye makes the whole student body mute.

We urge all students, regardless of political or ideological persuasion, to respect the free speech rights of all their peers, even those with whom they disagree. And we remind student government bodies that in their role of recognizing or funding student organizations, they must adhere to the First Amendment at public universities, and institutional promises of free speech at private colleges.

If your student organization is being discriminated against because of its views, beliefs, or expression, we stand ready to help.