No issue has been made so complicated, yet should be so simple, as the recent Board of Regents of the University of Wisconsin System v. Southworth U.S. Supreme Court decision regarding student fees. Over the last few months, some members of the University of California administration have taken action and made statements suggesting that our current system for funding student organizations is seriously amiss in light of the Supreme Court decision. Many of these statements have been inaccurate and confusing. I want to take this opportunity to share the Southworth case with the campus in a series of viewpoints focused on different aspects of the decision, and hopefully clear the air about what is really going on here. This article will deal with Southworth in regard to UCSB’s referendum process.
Last spring, the U.S. Supreme Court made a unanimous, landmark decision in Board of Regents of the University of Wisconsin System v. Southworth, 120 S. Ct. 1346 (2000) that affirms the importance and appropriateness of mandatory student fees to fund a broad range of student activities. The essence of the ruling was that a broad range of activities – including advocacy activities – is an important part of the educational experience. In the words of Justice Kennedy, “The University may determine that its mission is well-served if students have the means to engage in dynamic discussions of philosophical, religious, scientific, social and political subjects in their extracurricular campus life outside the lecture hall. If the University reaches this conclusion, it is entitled to impose a mandatory fee to sustain an open dialogue to these ends.” Justice Kennedy asserts that “the speech the University seeks to encourage in the program before us is distinguished not by discernable limits but by its vast, unexplored bounds.”
The importance of this ruling cannot be understated. The U.S. Supreme Court, at a time when it is deeply divided by ideology, made a unanimous ruling that not only said it was constitutional for mandatory student fees to be used for political or ideological activities, but also endorsed such funding as essential to the educational mission of the University: to promote a broad marketplace of ideas. The ruling has put to rest years of debate over whether or not funding such a broad array of activities is constitutional.
The Supreme Court ruling came with one important stipulation – if the University is going to allow a system of mandatory fees to fund student activities, the University must allow activities of all sorts to be funded, so long as funds are allocated without regard to the particular organization’s viewpoint. This type of funding has also been referred to as “viewpoint neutral” funding.
Viewpoint neutrality means that an organization cannot be granted or denied funding on the basis of the viewpoints they espouse. This important requirement is designed to ensure that the popularity (or unpopularity) of a groups’ views is not used to deny them funding. The Supreme Court wanted to ensure, for example, that if a campus’ leanings were predominantly pro-choice, a group of pro-life students that wanted to set up an organization that needed $500 to bring a speaker to campus would not be denied simply because its views were unpopular. We see this as a significant leap forward in campus free speech. Much lip service is paid to the notion that more free speech and debate are the keys to a society seeking freedom and justice, even when it means more speech with which you or I might disagree. The Southworth ruling will put this concept to the test.
As welcome as the viewpoint neutrality requirement is, we must understand two things about our situation here at UCSB:
Firstly, Southworth covers mandatory student fees. Here at UC, we use a refundable fee system. In other words, students who object to a particular organization’s activities may obtain a refund for their portion of fees that goes toward those activities. Because the system is non-mandatory, the viewpoint neutrality requirements of Southworth do not apply.
Secondly, despite the fact that UCs are not required to follow the viewpoint neutrality requirements of Southwotth, viewpoint neutral funding requirements are nothing new here. UCSB and the other UC campuses already have viewpoint neutral funding systems and, given the merits of such a system, there is no reason to think these should not stay in place.
The University has taken actions and made statements in recent months that suggest that our current system for allocating funds is seriously out of sync with Southworth. Specifically, the University has suggested that Southworth prohibits referendum from being used. The argument is that there is no guarantee that students voting in a referendum for a fee allocation will make a decision on a viewpoint neutral basis and, therefore, referendum must be removed from the fee allocation process. One can see where this might be a stumbling block. Obviously, a majority of our campus will have to vote one way or another and will designate funds according to their opinion expressed through a vote. In other words, the campus as a whole advocates funds in a manner that is not “viewpoint neutral.”
Because of this, the Supreme Court raised the question as to whether the use of referendum could violate the viewpoint neutral principle. But it did not reach a decision – it remanded the question to the lower courts, because it felt there was not enough information to decide. However, the California Legislative Council, the legal office for the California State Legislature, offered its opinion that referendums are a perfectly valid part of a funding system, so long as there are other ways a group can be funded.
Alternative means of funding ensure that a group with an unpopular opinion, which would not be supported by the majority of the campus, can still get financial support. At UCSB, this alternative is the Associated Students.
The referendum, or lock-in system, is essential to our campus as a whole, because it provides a democratic process for students to voice their opinions. Allowing students to participate and make decisions about the makeup of our community is an important part of what college is all about. Therefore, since it is not the only way for groups to receive funding at UCSB, and could never be used as an instrument to prohibit the funding of an unpopular group, referendums should continue as an important way to allow the student body to voice its support.
Edith Sargon is the A.S. external vice president for statewide affairs, as well as a senior women’s studies major.