Unconstitutional Funding Referendum Passes at University of Oregon

Last week, students at the University of Oregon (UO) were asked to vote on a wide range of ballot measures affecting all aspects of campus life. One of these items was put to a referendum in the hopes of adopting new funding rules into the constitution of the Associated Students of the University of Oregon (ASUO), the student government body at UO. The question read:

Should students be allowed to vote directly on funding levels for certain fee-funded programs?

The referendum passed (.PDF) by an overwhelming vote of 4,228 to 553. Good for those 553 students who voted against it: They probably knew that it is almost certainly unconstitutional. 

As Oregon Daily Emerald (UO's daily student paper) opinion editor Franklin Bains aptly wrote last week in his editorial regarding the referendum:

It sounds great, and trust me, I value your ability to vote on things. But there's a reason that we don't do this now, and it goes back for more than a decade. The Supreme Court decided in the Board of Regents of the University of Wisconsin v. Southworth that public universities were allowed to collect mandatory student fees on the basis that they were distributed in a viewpoint-neutral way. This means (as expected) that the viewpoint of a group can not come into the decision-making process for how much money a group gets.

Bains is correct. In FIRE's Guide to Student Fees, Funding, and Legal Equality on Campus (.PDF), we explain this issue very clearly:

At my public university, we decide to fund campus organizations through a referendum. Is that constitutional?

No. In [Board of Regents of the University of Wisconsin System v.] Southworth, the Supreme Court ruled that referenda to decide funding would almost certainly violate the principle of viewpoint neutrality. If a power oversteps constitutional limits, it does not matter whether it is a minority or a majority that exercises that power. A referendum invites a majority of voting students to violate viewpoint neutrality. Referenda offer no protection from the tyranny of the majority in matters of mandatory fees and the allocation of funding. State universities may not force students to fund groups that win funding through a referendum, nor may they deny a group funding solely because it does not receive sufficient support in a referendum.

Two students in favor of the referendum also wrote letters to the Emerald, claiming that voting for student group funding through ballot measure does not violate the fundamental First Amendment principle of viewpoint neutrality. One student argued that because there are other funding mechanisms in place, the addition of a protocol for funding through referenda would not be a viewpoint neutrality problem. The other student contended that the policy would only be in violation of the First Amendment if the student government could prove that students voted based on their individual viewpoints, not based on objective, viewpoint-neutral criteria.

Each student claimed familiarity with Southworth, but neither argument survives that case's reasoning. In Southworth, the Court upheld a mandatory student activity fee used by the University of Wisconsin to partially support student organizations, but struck down the university's student referendum mechanism. In doing so, the Court explained well the distinction between the viewpoint neutrality of the former and the viewpoint-based discrimination inherent in the latter:

It remains to discuss the referendum aspect of the University's program. While the record is not well developed on the point, it 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. Access to a public forum, for instance, does not depend upon majoritarian consent. That principle is controlling here. 

Board of Regents v. Southworth, 529 U.S. 217, 235 (2000).

As made clear by Southworth, then, funding through referendum violates the principle of viewpoint neutrality—a principle that is required among student governments soliciting mandatory fees. 

Former ASUO President and current UO Law student Sam Dotters-Katz was well aware of this fact when he filed a motion for reconsideration (.DOC) of the decision by the ASUO Constitution Court (the student government judicial body) to allow this measure on the ballot. Dotters-Katz writes:

The ASUO Constitution Court has found the Southworth case controlling, in that all funding allocation decisions must be made in a viewpoint neutral manner. In the Southworth decision, the United States Supreme Court with unanimous opinion stated unequivocally that funding decisions made through student referendum violate viewpoint neutrality. President Eckstein's ballot measure seeks to institute a direct funding mechanism through student referendum. There could not be a more clear violation of the holding in Southworth then such a constitutional provision. The Court should not allow a potential amendment to the constitution that violates the Constitution and laws of the United States.

The student court, however, did not see it within its purview to accept a motion for reconsideration under these grounds. As it wrote in its decision (.PDF), "A Motion for Reconsideration cannot be based on claims that the Court erroneously construed or applied the applicable rules or law." That sure puts a lot of faith in the (in this case clearly erroneous) constitutional knowledge of students.

This is disappointing. If the ASUO does indeed adopt language into its constitution allowing for direct voting on student fee allocations, it would be engaging in an unconstitutional practice and would open itself up to lawsuits—lawsuits it would likely lose.