Scrutiny for Student Fees

In challenge to support for NYPIRG, appeals court rejects SUNY-Albany's use of "advisory" votes on whether certain groups should get college funds.
November 21, 2007

A federal appeals court on Tuesday rejected the system used by the State University of New York at Albany to award student fee funds to some groups, saying that the use of a referendum encouraged the type of viewpoint discrimination barred by the U.S. Supreme Court. The ruling by the U.S. Court of Appeals for the Second Circuit came in a challenge to the way funds have been awarded to the New York Public Interest Research Group and the decision could renew fights over the way PIRG affiliates are funded by other campuses.

The ruling is the latest in a series that have followed a 2000 Supreme Court ruling that set strict parameters for public colleges and universities that require students to pay fees that support a variety of groups with a variety of views. In Board of Regents of the University of Wisconsin v. Southworth, the court ruled that there were educationally sound reasons for public colleges to require fees (as opposed to making them optional, which would not raise First Amendment issues in the same way). But when a public institution requires fees, the court ruled, it must respect the First Amendment rights of students both to support groups and not to support other groups -- and this can only be done if the system for awarding fee funds to student groups is "viewpoint neutral."

The Supreme Court suggested -- but did not state explicitly in that case -- that student votes on fee recipients would make it difficult to meet the viewpoint neutrality standard. And in the New York case, the appeals court said that was precisely the problem.

PIRG funding through student fees has long angered conservatives. PIRGs describe themselves as nonpartisan, and focus on a range of issues, some of them very much related to higher education. Officials of the state and national PIRGs have been strong proponents of more protections for students in the financial aid and loan process, and the groups have been among the toughest critics of publishers in the debates over textbook costs.

PIRGs also are involved in a range of other issues, taking stands on the environment, consumer rights, public transportation, health care, campaign finance reform and other matters. PIRG leaders tend to be equal opportunity critics of politicians, finding fault with Democrats and Republicans alike, but many PIRG positions are much closer to liberal than to conservative positions. As a result, the ability of PIRG groups to have special status in student fees has frustrated many who don't agree with their positions.

In the case of Albany, New York PIRG has "preferential" treatment in obtaining funds from student fees, the appeals court said. Under a system consistent with State University of New York guidelines, there is a referendum every four years to advise the Student Association on awarding funds to NYPIRG. After the last vote, NYPIRG started receiving $5 from every $80 a student paid in fees. SUNY rules explicitly bar the use of a referendum to award funds, but permit such advisory votes. NYPIRG's mission, in materials used in the student vote and the student government's review, is described as "to train students in the skills of civic engagement and advocacy through hands-on experience" and to help the university with nonpartisan voter registration and homelessness awareness projects, among other activities.

In 2003, two students who viewed NYPIRG as having a "liberal agenda" formed their own group, called the College Action Leadership League of New York, and asked the Student Association to hold a referendum on granting that group the same money NYPIRG receives. CALL-NY, as the group dubbed itself, said its mission was to focus on higher education issues, the environment and consumer protection by "unleashing the power of the free enterprise system." In 2003 and 2004, the Student Association declined to hold a referendum on support for the group, leading to the lawsuit, and a 2005 ruling by a federal judge in favor of the students who founded CALL-NY.

The appeals court found that the lower court was correct to see the advisory referendum as problematic. Student votes can't be expected to be viewpoint neutral, the court ruled, and holding referendums creates a great risk that the student committees that give out funds will "appease" their "electoral constituents." The guidelines on how the student votes are to be considered are so vague, the appeals court said, that the Student Association could "camouflage its discriminatory use of the referenda through post-hoc reliance on unspecified criteria."

There are some cases, the court said, where the use of a referendum (or as the court preferred, a survey) might be appropriate. For example, the court said a survey asking students if they would like to attend certain kinds of events (viewpoint neutral) might yield insights into what kinds of programming students want.

Finally, the appeals court said that adding language to procedures that requires them to be viewpoint-neutral and consistent with the Supreme Court's Southworth decision doesn't go far enough. "The bare statement without meaningful protections is inadequate to honor its commands," the court ruled. "It does nothing to help courts identify covert viewpoint discrimination, nor does it prevent self-censorship by timid speakers who are worried that officials will discriminate against their unorthodox views notwithstanding constitutional proscriptions."

A spokesman for SUNY-Albany said that officials there were still studying the ruling and could not comment on it yet.

Thomas Marcelle, the lawyer for the students who sued (and who have since graduated), said that the decision was an important one. "When people are forced to give their money to fund other people's speech, it must be done in a way that is fair and equitable," he said. "You can't give out other people's money based on an up or down vote."

He stressed that he viewed NYPIRG as "just as entitled to funding as any other group," but said that the rules must be fair. And Marcelle noted that he didn't disagree with a portion of the appeals court's ruling that said that -- for non-viewpoint reasons -- allocations might not divide equal ideologically. In an example Marcelle gave, he said that he believed it would be legal for the student government to allocate extra money for a campus appearance by Hilary Clinton because of the need for a large space for those who would want to attend or security costs. If a Republican speaker were then determined to not need as much space or security, it would be appropriate to allocate less money, Marcelle said, as long as the basis for that decision was an analysis of specific needs, not a vote on whether students preferred Clinton or the Republican.

If public universities don't like these rules, Marcelle said, they are free to just make student fees voluntary -- and then he wouldn't object to the use of a referendum to decide on recipients. Marcelle said he suspected this would not happen, however, because many students would opt out. Likewise, administrators could make allocations directly from tuition funds, but he said this would be unlikely as well. "The way they do it now, the university president can say, 'I'm not responsible for the S&M club or the pro-life club.'"

As long as universities give NYPIRG or similar groups special status, he said, they can expect more suits. "The students who brought the suit were in a very real sense a minority on campus because of their views," Marcelle said. "When you single someone out for preferential treatment, those opposed to their causes will resist."

Rebecca Weber, executive director of NYPIRG, said her group was "disappointed" with the ruling and was reviewing its legal options.

"The message from the court is an unfortunate one for the freedom of student governments to hear from their students," he said.

Weber objected to the idea that the student votes on funding NYPIRG had anything to do with the organization's philosophy. "What we bring to campus is an opportunity for students to get real life experience, things that put them in a better position to get better jobs because they have already participated in a news conference, or done field study, or bringing to life the stuff they are learning in their campuses," she said. "The positions we have on issues are not germane. Our funding has no relationship to that." (She also rejected the characterization of her group as liberal, and said that the group works "in the public interest.")

The use of student votes should be welcomed by all, she said. "Since day one, the reason we found the referenda process useful is that it's a level of accountability," she said. Students know "the exact opportunities and events" NYPIRG provides and then decide whether to support the use of student fees to support them. "None of this should be based on viewpoint," she said.

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