Scott H. Southworth and Benjamin Thompson v. Board of Regents of the University of Wisconsin System
Docket: 01-1912
Court: Court of Appeals for the Seventh Circuit; October 2, 2002; Federal Appellate Court
In the case of Southworth v. Board of Regents of the University of Wisconsin System, the United States Court of Appeals for the Seventh Circuit addressed a challenge brought by students against the University of Wisconsin-Madison regarding its mandatory student activity fee system, which they argued violated their First Amendment rights. The core issue was whether this fee system granted the student government excessive discretion in deciding which student organizations received funding, potentially leading to viewpoint discrimination.
The district court sided with the students, ruling that the fee system was unconstitutional due to this unbridled discretion. However, the Seventh Circuit reversed this decision, affirming that while the system generally did not violate the First Amendment, the funding of travel grants was an exception, as specific criteria for this funding had not yet been established by the student government. The case originated in 1996 and had seen multiple appeals, including a significant ruling by the U.S. Supreme Court. The plaintiffs specifically contested the allocable fees distributed to Registered Student Organizations (RSOs) for various activities, while not challenging the non-allocable fees used for other university expenses.
Funding for student organizations (RSOs) could be sourced from the Student Government Activity Fund (SGAF) administered by the Associated Students of Madison (ASM) Finance Committee, or from the General Student Services Fund (GSSF) managed by the Student Services Finance Committee (SSFC). Additionally, funding could come from student referendums, exemplified by the Wisconsin Public Interest Research Group (WISPIRG), which raised $45,000 through a referendum in the 1995-1996 academic year for political activities, including lobbying. Plaintiffs, opposing this funding system, argued it infringed upon their First Amendment rights by compelling them to support objectionable speech. The district court ruled in favor of the plaintiffs, determining the mandatory fee program was unconstitutional. The University appealed, and the appellate court upheld the decision based on precedents from Abood and Keller, which limit compelled funding for union speech unless it aligns with organizational purposes.
The Supreme Court later reversed this ruling, acknowledging that students cannot be forced to subsidize speech without First Amendment protections but found the application of Abood and Keller principles impractical for extracurricular student speech. The Court emphasized the need for viewpoint neutrality in funding allocations to protect students' First Amendment interests. However, the plaintiffs had previously stipulated that the ASM Finance Committee and the SSFC distributed fees in a viewpoint-neutral manner, leaving the referendum method unexamined. The Supreme Court identified potential issues with this referendum system, as it allows majority votes to determine funding, thereby potentially undermining the principle of equal treatment for minority views. The Court concluded that the referendum aspect of the funding program likely conflicts with the requirement of viewpoint neutrality.
Remand was deemed necessary for reevaluation of the case principles. Following the remand, plaintiffs sought to void a prior stipulation asserting that funding decisions by the ASM Finance Committee and SSFC were viewpoint-neutral, arguing reliance on Abood and Keller, which prohibited compulsory funding of others' speech. They also sought to amend their complaint, asserting the fee system lacked viewpoint neutrality due to the student government's broad discretion in funding decisions. The court remanded the case to allow the district court to consider these motions and the constitutionality of the referendum.
Subsequently, the University attempted to dismiss the constitutional challenge to the referendum, claiming it was moot after amending its policy to eliminate the referendum method. The parties agreed to dismiss the claim. The district court then reviewed the plaintiffs' motions to void their stipulation and amend their complaint, ultimately granting all requests, including adding a new plaintiff. A bench trial followed on the amended complaint.
Post-trial, the district court ruled that the University's mandatory fee system violated the plaintiffs' First Amendment rights due to excessive discretion granted to the student government in funding decisions. In its written ruling, the court acknowledged that some discretion is necessary but stated that discretion without objective standards fails to ensure viewpoint neutrality. The court deferred judgment for two months, allowing the University to amend its fee system. The University later introduced changes to limit discretion and promote viewpoint neutrality; however, the district court determined that the level of discretion remained unchanged despite these modifications.
The district court ruled in favor of the plaintiffs, prohibiting the University from requiring them to pay portions of mandatory fees that funded expressive activities they opposed. The University appealed, arguing that the district court abused its discretion by allowing the plaintiffs to void their stipulation of viewpoint neutrality, claiming the plaintiffs lacked standing to challenge the fee system and that a facial challenge was inappropriate. The University contended that the constitutional prohibition against unbridled discretion did not apply to student activity fee systems, but even if it did, the district court wrongly concluded that the fee system granted such discretion.
Upon remand from the Supreme Court, the district court found it appropriate to void the plaintiffs' stipulation, which had previously indicated that funding allocations were viewpoint-neutral. The court noted the stipulation took on new significance post-Supreme Court ruling in Southworth, which changed the legal landscape regarding compelled speech. The district court determined that the stipulation was entered inadvertently and based on a legal misunderstanding, thus justifying the decision to void it. The court highlighted that maintaining the stipulation could lead to other plaintiffs filing similar lawsuits, resulting in repetitive legal proceedings. Consequently, the appellate court concluded that the district court did not abuse its discretion in voiding the stipulation, supported by limited case law on this issue.
The district court's decision to void the parties' stipulation regarding the trial's basis on a previous record was deemed within its discretion due to the inadequacy of that record in addressing the newly relevant issue of mitigation of damages, which emerged after an appellate court reversal. This case paralleled the precedent set in Graefenhain, where a stipulation was not voided despite changing circumstances, as the plaintiff had not misunderstood the law. The current case differed because the plaintiffs, the district court, and the appellate court relied on legal principles later rejected by the Supreme Court. The Graefenhain ruling indicated that changed circumstances could warrant voiding a stipulation, and the district court's decision was affirmed as not an abuse of discretion.
The University argued that the plaintiffs lacked standing to challenge the mandatory student activity fee system, which requires plaintiffs to demonstrate an "injury in fact," defined as a concrete, actual, or imminent invasion of a legally protected interest, along with a causal link to the conduct and the possibility of redress. The plaintiffs asserted a legally protected interest in ensuring that their fees are allocated in a viewpoint-neutral manner, as established by the Supreme Court's ruling in Southworth.
Requiring students to participate in a mandatory activity fee program that subsidizes speech they find objectionable infringes upon their First Amendment rights. The court established that students are entitled to safeguards concerning the expressive activities they must support, emphasizing the necessity of viewpoint neutrality in funding allocation. The University acknowledges that students have a right not to be compelled to support speech they disagree with, which fulfills the standing requirement. However, the University contends that the plaintiffs lack standing since they do not claim specific instances of viewpoint discrimination.
The plaintiffs argue that their facial challenge to the University’s discretionary funding system does not require them to demonstrate actual incidents of discrimination, citing Supreme Court cases that allow for facial challenges in the context of unbridled discretion in licensing schemes. The University disputes the relevance of these principles to mandatory fee systems and asserts that the plaintiffs lack both standing and the ability to mount a facial challenge.
The case shifts focus from viewpoint neutrality to the issue of unbridled discretion. The plaintiffs claim that granting excessive discretion to student government violates the viewpoint-neutrality requirement, while the University maintains that the only constitutional obligation is for the fee system to operate in a viewpoint-neutral manner.
The University distinguishes the unbridled discretion prohibition from viewpoint neutrality, asserting it is a separate constitutional standard applicable specifically to licensing and permit cases. The analysis begins with the Supreme Court case Freedman v. Maryland, which addressed the constitutionality of a state law mandating film approval by a Board of Censors. The Board's broad authority to reject films based on vague criteria raised concerns of prior restraint on speech. The Supreme Court ruled that such a licensing scheme is only constitutional if it includes specific procedural safeguards: (1) a brief period for restraint pending judicial review, (2) expedited judicial review, and (3) the censor's burden to seek court intervention to suppress speech and to prove its case. The lack of these safeguards rendered the Maryland statute unconstitutional under the First Amendment.
Freedman's analysis on standing is significant, as it allows individuals to challenge statutes that delegate excessive licensing discretion, regardless of whether they personally applied for a license or their conduct was otherwise lawful. This principle recognizes the risk of broad and improper application of licensing discretion in First Amendment contexts. Further, in Shuttlesworth v. City of Birmingham, the Court examined a city ordinance requiring a permit for public demonstrations, directly addressing the implications of unbridled discretion in permitting processes.
The ordinance in question granted the commissioner extensive authority to deny permits in the interest of "public welfare, peace, safety, health, decency, good order, morals, or convenience." The Court expressed its longstanding disapproval of licensing systems that allow administrative officials broad discretion unrelated to the proper regulation of public spaces, ultimately declaring the ordinance unconstitutional for granting the city commission excessive, unregulated power to prohibit any parade, procession, or demonstration on public streets.
In a subsequent case, *City of Lakewood v. Plain Dealer Publishing Co.*, the Supreme Court addressed an ordinance allowing the mayor to issue permits for newsracks without specified criteria, only requiring the mayor to state reasons for any denial. A newspaper publisher challenged the ordinance without first applying for a permit, raising First Amendment concerns. The Court affirmed that a party could mount a facial challenge to a licensing statute that appears to confer unbridled discretion, citing the risks of self-censorship and arbitrary suppression of speech. The existence of unfettered discretion, coupled with the potential for prior restraint, can intimidate individuals into self-censorship. The Court emphasized the necessity of clear standards to limit discretion and mitigate this risk.
The Court highlighted the critical issue of undefined standards in licensure, which complicates the differentiation between legitimate permit denials and the abuse of censorial power by licensors. Without explicit standards, licensors can easily justify their decisions post hoc, leading to potential discrimination against disfavored speech and making judicial review of their actions difficult. The lack of constraints on a licensor's discretion effectively renders their decisions unreviewable. The Court's decision in Lakewood determined that an ordinance violated the First Amendment due to its failure to impose necessary limits on the mayor's discretion, allowing for arbitrary denials based solely on a vague public interest criterion. Similarly, in Forsyth County v. Nationalist Movement, the Supreme Court addressed a parade-permit ordinance that permitted the county administrator excessive discretion in setting permit fees. The administrator's testimony indicated a deliberate undervaluation of costs, prompting the Nationalist Movement to challenge the ordinance as facially invalid for granting overly broad discretion. The Court emphasized that permit systems must adhere to constitutional requirements, specifically avoiding the delegation of excessive licensing authority to government officials.
The Court addressed the issue of standing in facial challenges regarding ordinances that grant excessive discretion to decision-makers. It clarified that success in such challenges depends not on whether discretion has been exercised in a content-based manner, but rather on whether the ordinance includes any restrictions preventing such exercise. The Nationalist Movement was found to have standing for a facial challenge.
The Court then analyzed whether the ordinance in question violated the First Amendment by endowing county officials with unchecked discretion. It concluded that the ordinance did violate the First Amendment, as it lacked narrowly defined standards to guide the Forsyth County administrator's decisions regarding charges for police protection or administrative services. The administrator was not required to consider objective factors or provide explanations for decisions, which were also unreviewable, allowing for potential bias in favoring or disfavoring certain views through arbitrary fee applications.
The Court referenced the Supreme Court's ruling in Thomas, which applied the unbridled discretion principle to a Chicago ordinance requiring permits for public assemblies. In Thomas, the Court distinguished between content-based censorship and content-neutral regulation, noting that even in content-neutral contexts, excessive discretion raises risks of biased permit decisions. The Court emphasized that ordinances must contain clear standards to guide officials and ensure judicial review. It ultimately determined that the Chicago ordinance provided adequate standards, thereby addressing First Amendment concerns.
The text concludes with a discussion on whether the prohibition against unbridled discretion is inherently linked to the constitutional requirement of viewpoint neutrality, suggesting that while the Supreme Court has not explicitly stated this, it is a logical inference from prior rulings.
When decision-makers possess unbridled discretion, two primary risks arise: self-censorship by plaintiffs to avoid government censorship, and the potential for decision-makers to favor or disfavor speech based on viewpoint or content, leading to ineffective challenges against viewpoint discrimination. These risks undermine viewpoint neutrality, as seen in cases like Thomas and Lakewood. The Supreme Court's unbridled discretion standard is rooted in the constitutional mandate for viewpoint neutrality. The University of Wisconsin argues that viewpoint neutrality is the sole constitutional protection for plaintiffs, citing Southworth, which emphasizes that mandatory student fees must operate under viewpoint neutrality. However, the Court did not imply that this was the only constitutional requirement or detail the parameters of viewpoint neutrality or its relation to unbridled discretion. Historical Supreme Court cases provide a rationale for prohibiting unbridled discretion to protect against viewpoint discrimination. The Southworth decision also referenced public forum cases, suggesting that the principles governing them apply to the discussion of mandatory fees as a forum.
In Rosenberger, the Supreme Court articulated that a mandatory fee system serves as a forum in a metaphysical sense, suggesting that the principles governing governmental regulation of physical public forums, such as parks and streets, also apply to this financial forum. The Court emphasized that the Constitution forbids granting decision-makers unchecked discretion in providing access to such forums. This principle, derived from both Southworth and Rosenberger, indicates that the unbridled discretion standard relevant to permit and licensing cases is applicable to the University’s mandatory fee system, whether viewed in terms of viewpoint neutrality or as a distinct constitutional requirement.
The excerpt contends that the University’s argument against the applicability of physical forum standards to a monetary forum is unfounded. It asserts that, akin to how individuals may self-censor to access physical forums, students may similarly limit their speech and activities to avoid exclusion from the financial forum. The absence of specific guidelines for funding decisions could enable discriminatory practices based on viewpoint, concealing such discrimination due to a lack of standards. Consequently, the same concerns that justify the unbridled discretion standard in physical forums are present in the financial context, validating its application to the mandatory fee system.
Regarding standing, the excerpt clarifies that the argument against the students’ standing to sue—based on the absence of documented incidents of viewpoint discrimination—is addressed. The Supreme Court has established that when a licensing scheme embodies unbridled discretion, plaintiffs can challenge the regulation without having to apply for a license. Although this case addresses a mandatory fee system rather than a licensing ordinance, the Constitution similarly restricts such systems from affording decision-makers unchecked discretion.
Plaintiffs possess standing to challenge the University’s mandatory fee system on the basis that it provides the student government with excessive discretion, similar to standing in facial challenges to licensing statutes without prior application. The challenge focuses on the University’s potential noncompliance with constitutional viewpoint neutrality due to this discretion. The University argues that its fee system does not grant unbridled discretion, pointing to various limitations imposed on the student government following prior court rulings that deemed existing policies insufficiently restrictive.
The University’s Financial and Administrative Policies mandate that student activity fee expenditures align with constitutional requirements, including those established in Board of Regents v. Southworth. Amendments to these policies require student governments, in consultation with the chancellor, to develop specific criteria for fee allocation, maintain detailed records of funding deliberations, provide written reasons for denied funding requests, implement conflict of interest avoidance mechanisms, and establish an appeal process for funding decisions that may violate viewpoint neutrality. Additionally, there is a provision for appeals to the Chancellor regarding funding decisions alleged to be influenced by a student organization's speech or activities, with the Chancellor's ruling being final unless escalated to the Board of Regents under specific policy documents.
The University established a formal policy for appealing student fee funding decisions made by student government to the Chancellor. A registered student organization (RSO) or individual aggrieved by such a decision may appeal if they allege the decision violated the requirement for viewpoint neutrality based on the RSO's extracurricular speech or expressive activities, and only after exhausting the student government's review process. Appeals must be written, detailing the basis of the claim, and the Chancellor is required to review the case and issue a decision within 20 days. The Chancellor's decision is final, although irreconcilable differences regarding funding allocation may be escalated to the Board of Regents.
Additionally, the Associated Students of Madison (ASM) has Bylaws governing student activity fee allocation, which mandate viewpoint neutrality in funding decisions. All ASM Officers must take an oath to uphold these Bylaws, which also applies to Finance Committee and SSFC appointees. The Bylaws state that any financial decision violating viewpoint neutrality is null and void, and violators may face removal from their positions. General procedural requirements are also in place for both General Student Services Fund (GSSF) and Student Government Allocated Fund (SGAF) grants.
Bylaws stipulate that any meeting involving financial decisions must be audio recorded, and no official financial business can occur without such recording. Members of the ASM making viewpoint-neutral financial decisions are required to use a standardized evaluation form. The ASM is obligated to provide access to funding applications and committee decisions on its website, and must fulfill written requests for records within five school days. This access includes audio recordings, applications, evaluation forms, and final decisions related to financial matters.
Article Six of the Bylaws outlines an appeals process for decisions made by the SSFC and ASM Finance Committee, allowing affected parties to appeal to the Student Judiciary within five school days of notification of an adverse decision. The Student Judiciary reviews appeals de novo, although it defers to committee decisions if they involve comparative evaluations of similar RSOs.
The appeals process includes procedural safeguards such as audio recording of proceedings, a requirement for the Panel to set a hearing within five school days of a complaint, and a mandate for the Justices to publish written decisions within five school days post-hearing. Appeals can be filed against the Student Judiciary's decisions within five school days of publication.
Additionally, specific provisions for GSSF grants issued by the SSFC require RSOs to first apply for eligibility, which necessitates having been awarded two years of ASM operation grants, possessing written governing documents, and articulating a clear educational benefit. RSOs must also provide a defined purpose, mission statement, and a clear plan and goals to be considered for funding.
The organization must establish clear objectives that can be evaluated in various ways, such as affirmatively, negatively, or numerically. An estimate of the necessary logistical support and associated costs must be provided. The organization must also prove that no equivalent services are available to students elsewhere at the University. A representative must attend the eligibility hearing, and the organization cannot violate its governing documents, ASM Bylaws and Constitution, UW System Policy, or State and Federal law, nor have violated ASM Financial Policies in the last two years. Following an application for eligibility, the Student Services Finance Committee (SSFC) conducts a public hearing, with notices posted at designated locations, to decide on funding eligibility, with decisions documented and published within ten school days.
Any person or organization can appeal eligibility or funding decisions on the grounds of lack of viewpoint neutrality, with appeals filed with the Student Judiciary and ultimately decided by the Student Council, with further appeals available to the University Chancellor. Eligible organizations must apply for funding by submitting the General Student Service Fund (GSSF) application by September 30 of the prior fiscal year. Eligible RSOs are guaranteed a minimum funding amount, with the possibility of additional funding based on criteria such as effective use of previous funds, achievement of past objectives, reasonableness of funding requests, demonstrated need, accuracy of past requests, and stable eligibility criteria.
The SSFC holds a public hearing to determine any additional funding. The Bylaws mandate the completion of the GSSF Budget by October 31 and the appeals process by November 15. Additionally, appeals regarding SSFC funding decisions can be made based on viewpoint neutrality, with the process governed by the previously mentioned procedures. Organizations may also seek funding from the ASM Finance Committee, which offers operations, event, and travel grants.
Part Two, Article Seven of the ASM Bylaws establishes guidelines for grant applications, emphasizing the need for applicants to be Registered Student Organizations (RSOs). Key requirements include the inclusion of the ASM name, logo, and disclaimer on all printed materials funded by the grants, as well as the preparation and maintenance of grant applications by the ASM Finance Committee. Specific restrictions are placed on certain grants: operations grants cannot fund events, salaries, stipends, or wages, while event grants cannot cover travel to conferences or periodic publications. The Finance Committee is tasked with withholding a percentage of funds for the spring semester based on the grant type.
While the Bylaws outline general provisions, they delegate the development of specific funding criteria to the Finance Committee, which must ensure that these criteria are viewpoint-neutral. The Finance Committee has adopted detailed Rules of Procedure for event grants, which include criteria such as timely application submission, comprehensive descriptions of events and expenses, efforts for co-sponsorship, and attendance at hearings by applicants. Additional criteria focus on the reasonableness of requested amounts, event uniqueness, student accessibility, and the suitability of venues, among others.
For operations grants, similar viewpoint-neutral criteria apply, affirming the need for applicants to be RSOs. The Bylaws and the Finance Committee's Rules collectively govern the fair and structured allocation of funds while maintaining neutrality and transparency in decision-making.
The application for funding must be submitted by a specified deadline and must include a complete application, accurate financial estimates, detailed descriptions of expenses, the student organization’s goals, and a comprehensive publicity and recruitment plan. Applicants must have attended a hearing, adequately responded to committee questions, ensure requested amounts do not exceed state limits, justify the reasonableness of expenses, demonstrate the existence of the organization, confirm inclusivity for all students, show that requested supplies cannot be sourced elsewhere, and indicate that multiple options for office space have been pursued.
The Finance Committee evaluates grant applications based on established Rules of Procedure, posts preliminary recommendations, notifies relevant organizations, and allows for appeals before making final funding recommendations. The district court found that the university's Funding Standards did not sufficiently limit the discretion of the ASM Finance Committee and SSFC to ensure viewpoint neutrality, a conclusion that the University disputes, asserting that these standards impose significant constraints on funding decisions.
The University emphasizes its policy against viewpoint discrimination, requiring ASM officials to take an oath to uphold this principle and allowing for their removal for violations. The Funding Standards provide clear criteria for funding decisions and detailed procedural requirements for hearings, including public notice and recording of sessions to prevent covert discrimination. These records help ensure transparency in the decision-making process, as they allow for review of whether funding decisions were influenced by an organization's viewpoint. The University also mandates disclosure of funding documents and the provision of written reasons for any funding denial. Additionally, it has set specific deadlines for funding decisions and established a comprehensive appeals process.
Deadlines and the appeals process impose constraints on the discretion of the SSFC and ASM Finance Committee, ensuring that funding decisions remain viewpoint-neutral and are not influenced by self-censorship from RSOs. The deadlines prevent delays in decision-making that could arise from RSOs withdrawing or altering their proposals. The appeals process serves two primary functions: it reminds the student government that their funding choices will be scrutinized, and it allows for a review that checks for impartial treatment of RSOs. A critical aspect of this review mandates the Student Council to compare grant allocations among RSOs, ensuring equitable treatment of similar applications. This comparison aids in identifying any discrepancies in funding decisions that may arise from differing viewpoints.
The conclusion drawn is that the mandatory fee system does not give the student government excessive discretion in awarding grants, supported by precedents from cases involving unbridled discretion. For instance, in a case concerning a Chicago ordinance, the Supreme Court found that the ordinance appropriately limited discretion by specifying clear grounds for denial, including incomplete applications or prior damage to property. The Court emphasized that such specific criteria, along with processing deadlines and the requirement for reasoned denials, prevent arbitrary decision-making. Similarly, in MacDonald v. City of Chicago, the court upheld a parade-permit ordinance for providing concrete factors guiding the issuance of permits, thus reinforcing the notion of limited discretion in administrative decisions.
The University’s fee system provides specific and detailed standards for student government discretion, unlike the unbridled discretion criticized in Supreme Court cases such as Forsyth County, Shuttlesworth, Schneider, and Staub, where vague or general criteria allowed subjective decision-making. In contrast, the Funding Standards of the University are precise. However, plaintiffs argue that certain criteria, such as the requirement for Registered Student Organizations (RSOs) to provide an "identifiable educational service" and prove that similar services are not available elsewhere, allow for potential viewpoint discrimination. They contend that this could lead the Student Services Finance Committee (SSFC) to favor certain viewpoints over others, particularly if one RSO's application is denied on the grounds that a comparable service already exists. Additionally, plaintiffs assert that even if eligibility criteria are specific, the criteria for funding could still grant the SSFC and ASM Finance Committee unconstitutional discretion, as they might deny funding based on an RSO’s viewpoint while providing a pretext related to procedural issues during hearings.
Funding Standards prohibit viewpoint discrimination but acknowledge the potential for manipulation by student government representatives. This concern is comparable to cases like MacDonald, where plaintiffs argued that a parade-permit ordinance allowed arbitrary discretion based on police resource availability, potentially masking bias. Despite this flexibility, the court found no unbridled discretion, suggesting that similar safeguards in the Funding Standards mitigate the risk of viewpoint discrimination.
The University recognizes that if the SSFC or ASM Finance Committee treats one Registered Student Organization (RSO) differently than another based on expressive activities, it could lead to an as-applied challenge for viewpoint discrimination. Such discrimination could arise if funding is denied based on the presence of another RSO expressing a differing viewpoint or if an RSO with similar characteristics receives less funding than another. The SSFC's structured funding application process is intended to ensure equitable treatment of all viewpoints, with an appeals process available to address any disparities.
Concerns regarding the ASM Finance Committee's distribution of grants throughout the year are acknowledged, but discrepancies can also be addressed through appeals or legal challenges. The criteria requiring RSOs to adequately respond to funding inquiries are deemed reasonable, as exemplified by a specific instance where the SSFC questioned a request for a larger venue based on organizational size, leading to approval upon satisfactory explanation.
Questions posed by the SSFC and ASM Finance Committee are essential for assessing funding requests. Recorded hearings serve as a mechanism to evaluate whether RSOs adequately address these questions and whether any questions disproportionately target an RSO's viewpoint. The appeals process further ensures oversight in this context. Plaintiffs argue that viewpoint neutrality is compromised due to student lobbying of the student government regarding funding, but the existence of ASM Bylaws and University policies against viewpoint discrimination, along with the appeals process, mitigates concerns about such lobbying affecting decision-making. If evidence of lobbying arises, it could be relevant for a jury in any as-applied challenge.
The plaintiffs also assert that discrimination against religious groups is possible, citing a meeting where University officials urged student representatives to report concerns about funding religious activities. However, this guidance is seen as a safeguard against discrimination, as University officials, informed by legal advice, are less likely to misinterpret First Amendment protections than students. This open-door policy is intended to uphold viewpoint neutrality, although any actual discriminatory application could prompt an as-applied challenge.
Additionally, the ASM Finance Committee's lack of established criteria for travel grants undermines the Funding Standards' effectiveness in ensuring viewpoint neutrality. Without specific guidelines for travel grants, it becomes challenging for the appeals process to assess the appropriateness of funding decisions and for federal courts to evaluate whether discrimination against unpopular viewpoints occurred. Thus, the absence of these standards raises concerns about the limitations of the ASM Finance Committee's discretion in granting travel funds.
The mandatory fee system is deemed unconstitutional as it grants the ASM Finance Committee excessive discretion in awarding travel grants to organizations involved in speech and expressive activities. Until specific standards are established, the University cannot allocate mandatory fees from dissenting students for these grants. The Funding Standards are designed to prevent viewpoint discrimination by requiring student officials to commit to viewpoint neutrality and imposing sanctions for violations. These standards provide clear guidelines for funding decisions, limiting the discretion of the SSFC and ASM Finance Committee, except in the area of travel grants which lack defined criteria.
Some criteria used by the University have been found to be improperly based on the speech or viewpoint of the Recognized Student Organizations (RSOs). The context from the Supreme Court case Forsyth highlights that fees tied to the content of speech are unconstitutional, as they force administrators to evaluate the message's content to determine security costs. This principle was reinforced in the case of Chicago Acorn, where the denial of a fee waiver based on the potential for favorable publicity was deemed discriminatory, as it favored established political groups and marginalized less popular entities. Overall, the court concludes that while the Funding Standards limit discretion regarding most funding, they remain inadequate for travel grants until further criteria are established.
Navy Pier's decision to waive fees for events must be independent of potential positive publicity. Legal precedents, such as Forsyth and Chicago Acorn, emphasize that criteria for forum access must be content-neutral and not exclude unpopular or minority viewpoints. The Funding Standards stipulate that a Registered Student Organization (RSO) must have received an ASM grant for at least two years to qualify for a GSSF grant, and the length of time an organization has existed is also considered. The SSFC and ASM Finance Committee use previous funding amounts as benchmarks for current grants, which raises concerns about viewpoint neutrality. Historically, the University restricted funding for politically partisan or religious activities, disadvantaging those organizations. The absence of procedures to ensure viewpoint-neutral fund distribution further complicates this issue. Current funding decisions, based on an organization's longevity and prior funding, perpetuate past viewpoint-based discrimination. Notably, the case of WISPIRG illustrates how reliance on previous funding mechanisms, deemed constitutionally deficient, has led to institutionalized viewpoint discrimination. The First Amendment mandates that access to funding and resources must not favor established or popular viewpoints over others, reinforcing the necessity for impartial treatment in funding distribution.
Under the current funding system, established organizations benefit over newer ones, leading to the conclusion that the University cannot factor in an organization's duration or past funding when allocating current funds, as these criteria improperly relate to speech content. Similarly, while the Funding Standards should not consider the popularity of speech, limited circumstances allow for accounting the number of students involved, such as logistical needs for events. However, improper consideration of speech popularity may warrant an as-applied challenge. The plaintiffs assert that the funding system grants the University excessive discretion, which is contentious; yet, the court finds that the criteria and appeals process reasonably limit this discretion, satisfying First Amendment requirements, except regarding travel grants, for which no specific criteria exist. Until proper standards for travel grants are established, mandatory student fees cannot be used to fund politically, religiously, or ideologically motivated activities for groups opposed to such funding. The plaintiffs have standing to challenge this system as they have paid the mandatory fees and are entitled to viewpoint neutrality protections.
Funding Standards that restrict student government discretion are deemed appropriate, except for criteria related to the duration of a Registered Student Organization (RSO) and its past funding, which are not viewpoint-neutral. These criteria are linked to the RSO's content and viewpoint and derive from a prior system lacking constitutional safeguards for viewpoint neutrality. Consequently, the court affirms in part and reverses in part the previous decision. Notably, the University has ceased using student referenda for RSO funding. The plaintiffs argue that a prior stipulation regarding funding systems only applies to conditions as of November 1996 and does not encompass the current systems; however, the court finds no abuse of discretion in voiding the stipulation. The Supreme Court has criticized overly broad discretionary powers granted to government officials, referring to it as the "unbridled discretion standard." In Rosenberger, the Court ruled that the University of Virginia violated the First Amendment by selectively funding student publications based on viewpoint, establishing that student fees must be allocated in a viewpoint-neutral manner. The plaintiffs assert that the appeals process is inadequate for protecting their First Amendment rights, as it is only available to RSOs denied funding. However, the appeals process is accessible to any aggrieved party, including those contesting funding decisions perceived as viewpoint-based, as outlined in the Bylaws. The University clarified that the appeals procedures allow any student to challenge funding decisions alleged to violate viewpoint neutrality.
The appeals process outlined is available to plaintiffs, constraining the discretion of the student government. Key organizations mentioned include ASM (Associated Students of Madison), the RSO (Registered Student Organization), the SSFC (Student Services Finance Committee), which administers grants from the GSSF (General Student Services Fund), and the ASM Finance Committee, responsible for grants from the SGAF (Student Government Activity Fund). The funding type dictates whether SSFC or ASM Finance Committee makes allocation decisions, as their approval procedures differ. To qualify as an RSO, a group must be a not-for-profit entity primarily composed of students and must be student-controlled and open to all students. The ASM Finance Committee has not established or submitted Rules of Procedure for travel grants, raising concerns about procedural transparency. The University worries that groups may splinter to secure additional funding, necessitating a non-discriminatory approach to address this issue. It is debated whether requiring RSOs to have previously received ASM Finance Committee grants to qualify for GSSF grants constitutes valid criteria for access to a limited public forum. However, the University’s prior policies against partisan or religious organizations impede equitable access for RSOs. A fresh evaluation of policies could alter the discussion regarding whether the GSSF is a limited public forum reserved for specific groups, questioning if past grant requirements unfairly favor established viewpoints over newer ones, akin to the ruling in Chicago Acorn, which deemed such policies unconstitutional.
