Tuesday, November 20, 2007

SUNY Albany's student fee guidelines violate the First Amendment

Conservative students at SUNY Albany brought a First Amendment challenge to the university's rules governing the allocation of student activity fees. The students (who belong to the College Action Leadership League of New York) objected that the student government allowed their classmates to vote in a non-binding referendum how much money to allocate for campus organizations. Since this procedure might affect how much money the student government would budget for certain organizations, it violates the First Amendment requirement that the government cannot discriminate on the basis of political viewpoint.

The case is Amidon v. Student Association of the State University of New York, decided on November 20. On its face, the case may not seem to have much of an impact, but the ruling has important consequences in the ever-complicated world of First Amendment law and the requirement that government actors regulate speech according to viewpoint-neutral principles.
At its most simplistic level, this means that, if the student government is allocating money for an anti-war group, it cannot deny money for a pro-war group based on the latter's viewpoint. That's sort of what happened here, as the student-plaintiffs belong to a conservative policy organization and they seem to distinguish themselves from New York Public Interest Research Group (NYPIRG), which has a real presence on college campuses.

The principle of viewpoint neutrality is harder to apply than it looks. SUNY Albany was allowing students to vote on how much money goes to a campus organization. But this vote was non-binding; the student government was free to disregard it. The student government could only use the referenda for advice regarding the appropriate level of funding, not whether to fund the organization at all. So why does the procedure violate the rules of viewpoint neutrality? Because, according to the Second Circuit, "protected speech will be chilled when school officials 'cast disapproval on particular viewpoints of its students . . . in one of the vital centers for the Nation's intellectual life, its college and university campuses.'" Moreover, according to the Second Circuit,

A university’s viewpoint-discriminatory decision respecting how much funding to allocate to a [recognized student organization] raises the same concerns as a viewpoint-discriminatory decision respecting whether to fund a [recognized student organization] at all. The level of funding a group receives may serve as an expression of approval or disapproval of the group’s message. And the amount allocated to a group, whether a lot or a little, can skew debate on issues on which the group advocates a position. In this context, a comparatively low level of funding may not be much different than a complete denial of funding.

Since a majority of the students in theory could vote to give an unpopular student organization less money than other political organizations, the rules at SUNY Albany raise the substantial risk that the unpopular organization will get shafted because of its viewpoint. This is especially so since the student government could take the non-binding student vote into account in allocating less money to an organization. That violates the First Amendment, and SUNY Albany's procedures are stricken. Those of you reading this who are not familiar with the First Amendment may wonder how a theoretical risk can give rise to a real constitutional issue. But that's how the First Amendment works.

This case raises a number of issues which have not surfaced in the Second Circuit in years. Since the Supreme Court has issued several important First Amendment/viewpoint discrimination cases in the last decade or so, this case gave the Court of Appeals an opportunity to re-consider this complicated doctrine. For example, and this may be an issue that only First Amendment lawyers can love, the Second Circuit held for the first time that viewpoint neutrality prohibits the government from maintaining discretionary speech rules (which create the possibility that decisionmakers will deny or inhibit speech for personal or inappropriate reasons). On this point, the Second Circuit follows the lead of the Seventh Circuit, which in turn applied a Supreme Court ruling, Board of Regents v. Southworth, 529 U.S. 217 (2000).

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