Last Friday, a student group at the University of Michigan (UM) filed a federal lawsuit (PDF) against the university, claiming that UM violated the First Amendment when it refused to grant the group student fee funding for one of its activities on the basis that it was a “political activity.” The suit is being brought by Alliance Defending Freedom.
The facts as alleged are unsettling but fairly straightforward. On October 22, the UM Young Americans for Liberty (YAL) chapter, a recognized student organization, hosted a presentation by Jennifer Gratz, who famously won a 2003 lawsuit against the university for automatically granting admission “points” to undergraduate applicants based on race. Her presentation for YAL was titled “Diversity in Race v. Diversity in Ideas: The Michigan Affirmative Action Debate.”
When YAL submitted a request for $1,000 in student fee funding, its request was denied based on a policy against allowing student fees to be used for “political or religious activities.” According to the lawsuit, the initial funding request and the appeal were denied because the Student Organization Funding Commission “cannot fund events that are political in nature.”
If these were the only facts, UM would still clearly be in the wrong. As we have repeatedly explained, the law is clear that public universities are legally required (PDF) to provide funding to student groups on a content- and viewpoint-neutral basis. See Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217, 233 (2000) (“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.”); Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 836 (1995) (“For the University, by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the Nation’s intellectual life, its college and university campuses.”); Widmar v. Vincent, 454 U.S. 263 (1981) (holding that after university had “created a forum generally open to student groups,” the “content-based exclusion of religious speech … violates the fundamental principle that a state regulation of speech should be content-neutral.”).
Unfortunately, the allegations go even further. According to YAL’s complaint (PDF), the rationale used to deny funding to the Gratz event is disingenuous at best. Official documents summarizing funding of student groups at UM show that as recently as 2010, funding has been granted to a broad array of political and religious student groups:
144. For example, the SOFC has funded the following political RSOs: Amnesty International, Migrant and Immigrant Rights Advocacy, National Association for the Advancement of Colored People (“NAACP”), ONE Campaign, Students Allied for Freedom and Equality, Students for Life, and Students for Sensible Drug Policy, just to name a few.
152. The SOFC has funded the following religious RSOs: Christian Business Initiative, Good News Christian A Cappella, Hindu Student Council, Muslim Medical Students Association, Muslim Students Association, and University of Michigan Hillel, just to name a few.
But even more galling is the allegation that only a week before Gratz’s presentation to YAL, another student group received funding to travel to Washington, D.C., to advocate a pro-affirmative action viewpoint on the steps of the United States Supreme Court:
154. Just a week before Young Americans for Liberty hosted Ms. Gratz’s speech, an RSO named Coalition to Defend Affirmative Action, Integration & Immigrant Rights, and Fight for Equality By Any Means Necessary (“BAMN”) traveled to Washington, DC to advocate its pro-affirmative action political message on the steps of the United States Supreme Court during the oral arguments in Schuette v. Coalition to Defend Affirmative Action (S. Ct. No. 12-682).
155. The SOFC Defendants and Defendant Central Student Government provided student fee funding to BAMN for the expenses related to its trip to Washington, DC.
If these facts prove to be true, then UM will have an extremely hard time arguing that it has not engaged in clearly unconstitutional viewpoint discrimination. Having not only funded political and religious groups generally but also only a week earlier funded a political rally by a group espousing the opposite viewpoint, UM would have a hard time claiming that its decisions were based on anything other than disapproval of YAL’s message. This is an unacceptable outcome, both morally and legally, and the UM administration and student government ought to know that.
Unfortunately, this is not the first time that we’ve witnessed a school infringing on the rights of student groups to engage in political expression. In September 2012, only an hour down the road, the Michigan State University (MSU) College Libertarians applied for funding to host a lecture by economist and author Tom Woods. Their funding request was denied because the funding board felt it could not “fund groups with a political agenda.” After FIRE wrote to MSU and explained that its denial of funding to groups with a “political agenda” violated students’ First Amendment rights, the funding request was re-reviewed and approved, and FIRE received a letter from MSU stating that it would “fund student groups in a content and viewpoint neutral manner under the First Amendment” going forward. Had UM been paying attention, it might have avoided this lawsuit altogether. Now, it may join the growing ranks of schools that have been forced to suffer the consequences in court.
For more about this matter, be sure to catch FIRE President Greg Lukianoff when he appears on Cavuto on Fox Business Network tonight at 8:00 p.m. Eastern time to discuss this case!
Image: University of Michigan Law School – 1Zoom.me