Foundation for Individual Rights in Education (FIRE) program officer Adam Goldstein said First Amendment lawsuits tied to student-raised funding have trended over the past two decades, starting with students in the late 1990s who complained fees going to things they didn’t like or agree with amounted to compelled speech.
In the 1995 Supreme Court case Rosenberger v. Rector and Visitors of the University of Virginia, the justices found in favor of a student’s religious publication which was denied funding even though the school had subsidized for other student publications.
Goldstein said Rosenberger and all subsequent legal battles over student funding come down to one thing: whether the funding allocation system is viewpoint-neutral.
“If the allocation system isn’t actually viewpoint-neutral then there’s the question of whether the government can collect fees. In the Koala case that was the core defect,” Goldstein said.
Lata Nott, executive director at the First Amendment Center at the Freedom Forum Institute agreed. Nott said while it can be difficult to argue rules that are facially neutral are actually discriminatory, The Koala was able to do so because of an official statement by the university denouncing an article it published.
The statement preceded the student government’s passage of the Media Act, which restricted funding for student media.
“To have that penalty on all the media organizations infringes the freedom of the press and runs afoul to the First Amendment,” Nott said.
But while Nott and Goldstein agree the student funding mechanisms at UC San Diego and CSU San Marcos did not contain viewpoint-neutral guidance, they find most universities try to make funding systems which work for all students. Those mechanisms are undermined by student government funding decisions that aren’t neutral, according to Goldstein.
“I feel for the schools because what does it say other than they have an excess of trust in students,” Goldstein said. “The problem keeps coming up in funding decisions, not from ill will on behalf of the colleges, but its students involved in politics on campus.”
Goldstein said the “fix” for creating viewpoint-neutral student funding guidelines “is nothing that couldn’t be changed in one session to make a defective program more effective.”
Inspired by the UC San Diego case, FIRE developed a model policy for universities to adopt containing a viewpoint-neutral process for allocating student fees.
Goldstein said it’s generally important for student funding mechanisms to have an appeals process in place if student organizations are denied funding.
And while universities are implicated in free speech spats when it comes to funding, Goldstein and Nott suggested the problem has been exacerbated by the recent phenomenon where hostility among ideologically opposed students has led to a culture where they use resources to defund or de-platform their opponents.
“Students are more willing to exile opposing viewpoints which is going to be a problem if you have an obligation to maintain a viewpoint-neutral forum,” Goldstein said.
Nott said, “I really don’t think it’s a problem ‘snowflakes’ invented. “Most people across the political spectrum don’t like the First Amendment when it protects speech they don’t agree with or find offensive.”
Both cases are making their way through the Southern District of California.
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