Student Fees Upheld

[Lederman, Marty]

Leslie Goldstein writes (as an aside):  "My university used to try to ban funding
for partisan student groups and speakers (so we could have an anarchist club
but not young Dems or young Republicans).  I believe they have ceased such
nonsense."

Interestingly, the prohibition for partisan political activity is alive and well (at least for the time being) at the Univ. of Wisconsin, as well as under the UVa policy at issue in Rosenberger.  At oral argument in Southworth, 1999 WL 1050283, at *25-*28, several Justices, sharing Leslie's view that such exclusion is nonsensical, were incredulous that Wisconsin excluded funding for partisan political activity, and suggested (i) that such exclusion undermined the "forum" analogy and (ii) that the exclusion is a form of impermissible viewpoint discrimination (in the same way that the exclusion in Rosenberger -- of any activity that "primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality" -- was viewpoint-based).  For example:

 MS. ULLMAN: That's right. It wants to confine the forum to the purposes that it defined it for. In Rosenberger, they also excluded political activities of electioneering and lobbying.
  QUESTION: If you're excluding that kind of politics, what does that do to your--to your forum analysis?
 *27 MS. ULLMAN: I don't think it harms the forum analysis.
 QUESTION: It's rather than an odd forum, isn't it?
 MS. ULLMAN: No. It only excludes a very narrow band of partisan political.
 QUESTION: It excludes a narrow band which in fact is the--is the principal object in the first instance of First Amendment protection.
 MS. ULLMAN: Yes, but there's still at this forum a wide range of speech that can be heard. And the--this Court has recognized that you can exclude a class of speech in Cornelius v. the NAACP.
 QUESTION: All right. Can the--do you take the position that the university could exclude funding for an avant garde arts organization?
 MS. ULLMAN: I don't think so. That sounds like it would be viewpoint-based rather than--
 QUESTION: That's--that's right. That's the way it sounds to me and it sounds to me as though you've got the same point with your political exclusion.
 MS. ULLMAN: No. We're excluding an entire class of speech, an entire category. We're not excluding a particular viewpoint.
 QUESTION: Just partisan political, though. *28  That's--that's a viewpoint it seems to me. If I hold these views but I'm not a Democrat, I can--you know,  I can spew them. But if--if I--and get funded for it. But if I--once I affiliate with a party, then I can't.
 MS. ULLMAN: I--I think the--the university has limited the partisan political. The respondents haven't challenged that category of funding. They've challenged the funding mechanism. If there's a problem with excluding partisan political, then that's a Rosenberger type case that isn't here.

In his opinion, Kennedy ducked the issue:  "The same policy adds that an RSO 'shall not use [student fees] for any lobbying purposes.' Ibid. At one point in their brief respondents suggest that the prohibition against expenditures for 'politically partisan' purposes renders the program not viewpoint neutral. Brief for Respondents 31. In view of the fact that both parties entered a stipulation to the contrary at the outset of this litigation, which was again reiterated  during oral argument in this Court, we do not consider respondents' challenge to this aspect of the University's program."

Marty Lederman

-----Original Message-----
From: Leslie Goldstein
Sent: Saturday, March 25, 2000 8:13 AM
To: CONLAWPROF at listserv.ucla.edu@inetgw2
Subject: Re: Student Fees Upheld


X-Accept-Language: en

It seems to me there is a difference between direct-content-non-neutrality and
incidental-content-non-neutrality.  My university used to try to ban funding
for partisan student groups and speakers (so we could have an anarchist club
but not young Dems or young Republicans).  I believe they have ceased such
nonsense.  Now there is a student board that disburses funds to student groups
based on such rules as do they have an appropriate charter, do they provide a
clear accounting of their expenditures, do they have a faculty sponsor, and
what is the level of student interest in or participation in their activities,
etc.  It is true that level of student interest will incidentally affect
content or viewpoint of how much a group gets (same as presidetnail campaign
financing) but content or viewpoint is not the basis of the funding.  The
impact is incidental.  One would not expect the university to give funds to a
group consisting of one or two student members, would one?
And the conservatives who complained also were free to get student funding,
right?
Leslie F Goldstein