Revisiting Chemerinsky’s analysis of the defunding of The Daily Targum

July 2, 2019

FIRE wrote a letter to Rutgers University last month urging the institution to reverse its defunding of the student newspaper, The Daily Targum. Rutgers’ move followed a two-year #DefundTheTargum campaign led by the Rutgers University Conservative Union and a campus-wide referendum. As we explain in detail in our letter, defunding the student newspaper through a referendum is constitutionally unsound.

However, noted constitutional law scholar Erwin Chemerinsky seems to disagree. 

“The reality is, if a school wants to have a student newspaper it can, and if it doesn’t want to have a student newspaper, it doesn’t have to,” Chemerinsky told the Columbia Journalism Review. “There’s no First Amendment obligation to have a newspaper, and students can decide how they’re going to spend their fees.” 

Members of the legal community frequently look to Chemerinsky for guidance — he is currently the dean of the University of California, Berkeley’s law school, and a 2014 study found that he was the second-most cited legal scholar in the four preceding years. But with all due respect to Dean Chemerinsky, on this point, our stances diverge.

Chemerinsky is right that a school cannot be forced to create a student newspaper. However, when one exists or when students want to create one — as was the case with The Daily Targumthe school is obligated to treat that student newspaper in the same manner as all of its other student groups, in a viewpoint-neutral manner. To say that a school has no First Amendment obligation to have a student newspaper doesn’t speak to how funding may or may not be taken away from an existing paper funded by student fees.  

In the case of a student-run newspaper receiving student fees, there are constitutional constraints on decisions made related to its funding. As the Supreme Court held in Rosenberger v. Rector and Visitors of the University of Virginia (1995), a university may not use a funding system that discriminates based on viewpoint for allocating fees to a student organization. It is no defense of a viewpoint-discriminatory funding mechanism to point out that the university could have chosen not to have a newspaper in the first place.

The Supreme Court has also held that viewpoint neutrality cannot be achieved through a direct referendum for the student body. In Board of Regents of the University of Wisconsin System v. Southworth (2000), the Court ruled that the will, or vote, of the majority cannot result in a viewpoint-neutral outcome. 

Delivering the opinion of a unanimous Court, Justice Anthony Kennedy wrote:

To the extent [a] 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.

Accordingly, a direct referendum cannot afford the constitutional protections that a public university must incorporate into the funding procedures for its student organizations. 

Similarly, a vote by a student government cannot afford those protections either, unless bound by objective, viewpoint-neutral criteria. Votes of representative legislatures in the absence of such criteria are no more viewpoint-neutral than votes of the constituents who elected them. Justice John Paul Stevens, writing the Court’s majority opinion in Santa Fe Independent School District v. Doe (2000), described the impact of using a student election process to grant access to school benefits. “[T]he majoritarian process implemented,” Stevens wrote, “guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced.” 

Examining this precedent in the context of a representative body, a Wisconsin federal district court likewise found that a student government vote and a referendum both “operate on the principle of majoritarian rule.” That majoritarian rule stifles minority voices, and in most instances can’t be reconciled with viewpoint neutrality.

Here, the referendum used by Rutgers subjugates organizations to the will of the majority, which itself may be swayed by a highly-motivated minority. If a vote-based student fee funding scheme cannot protect students’ First Amendment rights, it should not be used for such purposes.

Thus, we cannot accept the logic of Chemerinsky’s statement, which implies that Rutgers or the student body could defund The Daily Targum at will, even for viewpoint-based reasons. Because so many look to him for legal guidance, we hope Chemerinsky will take a second look at the details here.

Kelsey Sheronas is a FIRE legal intern and a rising 2L at Temple University Beasley School of Law.