FIRE Letter to Northern Illinois University President John G. Peters, November 18, 2010

November 18, 2010

President John G. Peters
Northern Illinois University
Office of the President
Altgeld Hall 300
Dekalb, Illinois 60115

Sent via U.S. Mail and Facsimile (815-753-8686)

Dear President Peters:

The Foundation for Individual Rights in Education (FIRE) unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of liberty, free speech, legal equality, due process, the right of conscience, and academic freedom on America's college campuses. Our website, www.thefire.org, will give you a greater sense of our identity and activities.

FIRE is deeply concerned by the threats to freedom of expression and freedom of association posed by the unconstitutional decision of the Northern Illinois University (NIU) Student Association Senate to deny recognition to the new student organization Students for Sensible Drug Policy (SSDP) and by the Student Association's unconstitutional policy for funding recognized student organizations.

The following is our understanding of the facts. Please inform us if you believe we are in error.

NIU assesses a mandatory Activity Fee to fund recognized student organizations at the university. NIU has designated the Student Association as its agent for recognizing groups and allocating the collected Activity Fee; the Student Association is an arm of NIU for these purposes. In turn, the Student Association Senate makes the final decisions regarding group recognition and funding allocation on behalf of the Student Association (please see http://www.niu.edu/
sa/audience/senate.shtml). As a result of this delegation of power, NIU is both morally and legally responsible for any Student Association Senate violations of the First Amendment rights to freedom of speech and freedom of association. Such violations include any decision or vote not to recognize or to fund a student organization on the basis of its viewpoint or mission.

According to the October 24, 2010, Student Association Senate minutes, SSDP Vice President Chris Clanin and SSDP Publicity Chair Erik Haslinger appeared before the Senate in support of SAB42002, "A Bill to Recognize the Listed Student Organization - Students for Sensible Drug Policy." The Student Association Bylaws describe the requirements that student organizations must meet in order to receive and maintain recognition. When questioned, SSDP confirmed that it has about 30 active members on campus and had submitted a group constitution. The minutes show no problem with SSDP's fulfillment of all stated requirements for receiving recognition.

Instead of confining themselves to viewpoint-neutral criteria in deciding whether to grant recognition to SSDP, several senators inquired into SSDP's political views. In particular, Senator Corey McCullough asked "if their basic premise is to legalize drugs." (SSDP's answer was no.) Senator Robert Lausch asked "if they are in support for medical marijuana" and "if they want to not have image as pushing to use of drugs" (sic).

Following this questioning, various senators discussed whether SSDP should be considered a "social justice" or a "political" organization. (The Student Association maintains a policy whereby "political" and "religious" student organizations are not eligible for any Student Association funding, including Activity Fee funds, while "social justice" organizations are eligible for such funding. A full list of student organization categories is available at http://www.niu.edu/sa/organizations/categorical.shtml.) Senator Lausch noted "concerns about [SSDP's] possible future funding that will come from student fees" should SSDP be recognized as a "social justice" organization. The Senate voted not to recognize SSDP and subsequently voted to postpone a final decision on recognizing SSDP pending a change of status to the "political" category.

Finally, on November 7, 2010, the Student Association Senate amended the Student Association Bylaws in a way that is all but certain to force many "social justice" organizations into the non-funded "political" organization category. Although it seems that other kinds of organizations are not officially defined, the Bylaws now identify "political" and "religious" organizations with the following "Special Organizational Definitions":

a.       A Political Organization shall be defined as an organization which dedicates a part of their activities or purpose to carrying out informational campaigns or lobbying designed to, or resulting in, individuals petitioning Federal, State, or Local legislative or executive bodies for policies advocated by that group.

b.      A Religious Organization shall be defined as an organization [sic] any church, congregation, society, or organization founded for the purpose of religious worship.

As explained below, these circumstances violate the First Amendment in both policy and practice.

That the First Amendment's protections fully extend to public universities like NIU is settled law. See Rust v. Sullivan, 500 U.S. 173, 200 (1991) ("[W]e have recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government's ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment"); Healy v. James, 408 U.S. 169, 180 (1972) (citation omitted) ("[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools'"); Widmar v. Vincent, 454 U.S. 263, 268-69 (1981) ("With respect to persons entitled to be there, our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities"). Again, we remind you that as an authorized agent of NIU, the Student Association is morally and legally bound to uphold the First Amendment rights to freedom of speech and freedom of association. It has failed to do so in several respects.

Student organizations such as SSDP enjoy fundamental First Amendment freedoms. NIU is required to grant political, religious, and other expressive organizations equal access to campus facilities (see Widmar v. Vincent, 454 U.S. 263 (1981)), and it is also required to grant religious and other expressive organizations equal access-on a viewpoint-neutral basis-to student fee funding distributed to other student organizations. See Rosenberger v. 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."); Board of Regents 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."). Moreover, NIU cannot even selectively compel certain organizations to include members who would contradict the expressive purpose of the group. See Christian Legal Society v. Martinez, 130 S. Ct. 2971, 2993 (2010). (Compare NIU Student Association Bylaws, Part III, Section 1(C), which prevents student organizations from receiving recognition if they have membership standards based on "political views" or "religious views.") In summary, NIU's Student Association, as de facto administrators of the university, cannot require certain student groups to set their politics and religion aside as a precondition for receiving recognition, benefits, or access to facilities available to others. See Healy v. James, 408 U.S. 169 (1972).

Indeed, the Student Association Senate and its members must base all decisions with regard to recognition and funding on viewpoint-neutral criteria. It has failed to do so. Senators asked SSDP about the group's political positions and argued about whether SSDP should be recognized, and thus deserve Activity Fee funding, because of its viewpoints and the message it wishes to espouse. This is unacceptable.

In addition to the inherently illiberal implications of NIU's effort to relegate political (and religious) organizations to second-class status, the Senate's definition of political organizations is hopelessly vague and overbroad. An organization with virtually any community involvement whatsoever "dedicates a part of their activities or purpose to carrying out informational campaigns." Furthermore, despite an organization's best efforts, it cannot control whether its "informational campaigns" might "result[] in" someone petitioning government bodies in favor of "policies advocated by that group." Indeed, this policy might be the first student organization funding policy at a college or university that FIRE has seen in our eleven years of defending student rights to explicitly violate the First Amendment right to petition government for the redress of grievances.

Further, the Senate's current definitions of "political" and "religious" organizations are unworkable in practice. It seems virtually impossible for any "Social Justice, Advocacy, and Support" organization at NIU to avoid the Senate's new, extremely wide "political" net. How could existing student groups like Advocates for Choice or Students for Life possibly escape this designation? If the Senate permits these organizations to remain eligible for funding while denying funding for "political" organizations, the Senate will enact an impermissible double standard-yet another First Amendment violation.

Similarly, NIU's definition of "religious" organizations explicitly relegates worship-oriented organizations to second-class status while letting anti-religious organizations compete for funding. Since the Senate has denied all funding to religious organizations, humanist and atheist organizations could receive funding at NIU to discuss topics that religious organizations could never receive funding to discuss. This viewpoint-based discrimination is unconstitutional.

The Student Association must revise its funding and recognition policies to conform to the requirements of the First Amendment. Further, if SSDP's application is complete, the Student Association Senate must immediately recognize SSDP as a registered student organization eligible for Activity Fee funding.

If the Student Association fails to accomplish these ends, Northern Illinois University has the moral and legal responsibility to step in and protect the First Amendment rights of its students. FIRE is committed to using all the resources at our disposal to see this matter through to a just conclusion. Please spare NIU the embarrassment of fighting against the Bill of Rights.

We respectfully ask for a response to this letter by December 3, 2010.

Sincerely,

Adam Kissel
Vice President of Programs

cc:

Pat Talley, Speaker, Student Association Senate
Ryan Smith, President Pro Tempore, Student Association Senate
Senator Corey McCullough, Student Association Senate
Senator Robert Lausch, Student Association Senate
Erik Calmeyer, President, Student Association
Angie Driessen, Director for Student Involvement and Leadership Development
Melissa Williams, Associate Director for Student Involvement and Leadership Development
Brian O. Hemphill, Vice President for Student Affairs & Enrollment Management