The opinion
05-6623-cv
Amidon v. Student Ass’n of the State Univ. of N.Y.
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 August Term 2006
5 (Argued: March 23, 2007 Decided: November 20, 2007)
6 Docket Nos. 05-6623-cv(L), 05-6664-cv(CON), 06-0117-cv(XAP)
7 -------------------------------------------------------x
8 ERIC AMIDON, WINSTON BROWNLOW, and COLLEGIAN ACTION LEADERSHIP
9 LEAGUE OF NEW YORK, by its President,
10
11 Plaintiffs-Appellees-Cross-Appellants,
12 -- v. --
13 STUDENT ASSOCIATION OF THE STATE UNIVERSITY OF NEW YORK AT
14 ALBANY, NEW YORK PUBLIC INTEREST RESEARCH GROUP, “NYPIRG,” and
15 PRESIDENT OF THE STUDENT ASSOCIATION OF THE STATE UNIVERSITY OF
16 NEW YORK AT ALBANY, in his official capacity,
17
18 Defendants-Appellants-Cross-Appellees.
19 -------------------------------------------------------x
20 B e f o r e : WALKER and B.D.PARKER, Circuit Judges, and CASTEL,
21 District Judge.*
22
23 Appeal from a judgment of the United States District Court
24 for the Northern District of New York (David N. Hurd, Judge),
25 granting summary judgment to the plaintiffs and denying summary
26 judgment to the defendants on the grounds that the Student
*
The Honorable P. Kevin Castel, United States District Judge for
the Southern District of New York, sitting by designation.
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1 Association of the State University of New York at Albany
2 violated the First Amendment by using an advisory student
3 referendum to determine the amount of funding student
4 associations receive from a pool of mandatory student activity
5 fees.
6 AFFIRMED.
7 THOMAS MARCELLE, Law Office of
8 Thomas Marcelle, Albany, New York,
9 for Eric Amidon, Winston Brownlow,
10 and Collegian Action Leadership
11 League of New York.
12 LEWIS B. OLIVER, Jr., Oliver &
13 Oliver, Albany, New York, for the
14 Student Association of the State
15 University of New York at Albany.
16 MICHAEL B. DE LEEUW (Alexander R.
17 Sussman, Darcy M. Goddard, Michael
18 F. Savicki, Sloan S.J. Johnston,
19 Alexis Karteron, on the brief),
20 Fried, Frank, Harris, Shriver &
21 Jacobson LLP, New York, New York,
22 for New York Public Interest
23 Research Group.
24 David C. Vladeck, Georgetown
25 University Law Center, Institute
26 for Public Representation,
27 Washington, D.C., for amicus curiae
28 Connecticut Public Interest
29 Research Group.
30 JOHN M. WALKER, JR., Circuit Judge:
31 In this appeal from a November 7, 2005 judgment of the
32 United States District Court for the Northern District of New
33 York (David N. Hurd, Judge), we decide whether the Student
34 Association (“SA”) of the State University of New York at Albany
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1 (“SUNY-Albany”) violated the First Amendment by using an advisory
2 student referendum to determine how to allocate funds from a
3 mandatory student activity fee among student organizations. The
4 district court held that it did. See Amidon v. Student Ass’n of
5 the State Univ. of N.Y. at Albany, 399 F. Supp. 2d 136 (N.D.N.Y.
6 2005). For the reasons that follow, we agree.
7 BACKGROUND
8 Every semester, SUNY-Albany collects a mandatory student
9 activity fee of $80 from each student, generating approximately
10 $1.69 million annually. A student who fails to pay this
11 mandatory fee cannot register for classes and has his transcript
12 withheld. N.Y. Comp. Codes R. & Reg. tit. 8, § 302.14(c)(2).
13 Plaintiffs Eric Amidon and Winston Brownlow enrolled at SUNY-
14 Albany in Fall 2001 and have paid the student activity fee each
15 semester.
16 The SA distributes the funds to recognized student
17 organizations (“RSOs”), of which there are more than one hundred.
18 A regulation issued by SUNY’s Board of Trustees requires the SA
19 to make funding allocation decisions in a viewpoint-neutral
20 manner. See id. § 302.14(c)(1)(i).1 Since August 2003, the SA
1
The collection of mandatory student activity fees is, in the
first instance, authorized by the Board of Trustees. See N.Y.
Comp. Codes R. & Reg. tit. 8, § 302.14(a). While the Trustees’
regulations place some constraints on the manner in which funds
may be allocated, the distribution of mandatory fees is largely
delegated to student governments. At SUNY-Albany, the SA has
adopted provisions in its Constitution and Bylaws establishing
procedures for allocating funds. We note that the applicable
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1 Constitution has included (1) a requirement that all SA
2 committees and the SA Senate adhere to the principle of viewpoint
3 neutrality, (2) a definition of viewpoint neutrality, (3) a rule
4 that any SA decision violating viewpoint neutrality is “invalid
5 and null and void,” (4) a “standard evaluation form” for
6 submission by RSOs in support of funding requests,2 (5)
7 requirements of public disclosure upon an RSO’s request of any
8 documents relating to a decision denying funding and written
9 statements of the reasons for the denial, and (6) hearing
10 procedures for new and previously unfunded RSOs. SA Const. §§
11 808, 809.
12 RSOs generally must re-apply for funding every year through
13 one of the following methods:
14 1. Budget Submission: The RSO may present a budget to the
15 Student Association, which the SA Senate may adopt,
16 reject, or modify.
17 2. Student Referendum: The RSO may seek funding based upon
18 a campus-wide student referendum in which the RSO asks
regulations, the SA Constitution and Bylaws, have been amended
during the pendency of this suit. For the purposes of deciding
this appeal, we need not discuss the history of those amendments
in detail; this opinion addresses only the iteration of the
scheme governing the allocation of student fees that was current
as of the district court’s decision.
2
A standard evaluation form requires an RSO to disclose its
purpose and function, the size of its membership, whether it
receives funding from other sources, whether it collects dues
from members, whether it collects fees from events, and its
proposed budget and expenses to date.
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1 “whether all students should pay a certain dollar
2 amount” to that organization out of the student
3 activity fund. To proceed by referendum, the RSO must
4 either obtain a two-thirds vote of the SA Senate or
5 submit a petition signed by at least 15% of the student
6 body.
7 In September 2004, the Trustees amended the regulation
8 governing student activity fees to mandate that while advisory
9 referenda of the student body were permissible in making funding
10 decisions, such referenda could not be binding on the student
11 government. See N.Y. Comp. Codes R. & Reg. tit. 8, §
12 302.14(c)(1)(i). In March 2005, the SA adopted Bylaws
13 implementing this rule. Pursuant to the Bylaws, the SA may use
14 referenda only “to advise [it] regarding the appropriate level of
15 funding and not to determine whether a group will or will not be
16 funded.” SA Bylaws § 517.1-.2. The SA Bylaws set forth a
17 nonexclusive set of criteria, to be discussed later, that
18 determine whether the SA should employ the assistance of an
19 advisory referendum to help calculate a particular level of
20 funding. SA Bylaw § 517.5.
21 Two organizations receive what the plaintiffs characterize
22 as “preferential” treatment. Dippikill, a non-profit corporation
23 that provides an 861-acre property to the school for various
24 activities, is the subject of an advisory referendum at least
25 every four years and most recently received an allocation of
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1 $210,000. The second is New York Public Interest Research Group
2 (“NYPIRG”), an RSO whose “mission is to train students in the
3 skills of civic engagement and advocacy through hands-on
4 experience.” It provides numerous services to SUNY-Albany such
5 as nonpartisan voter registration, homelessness awareness and
6 service campaigns, and a book exchange. Although it claims to be
7 nonpartisan, plaintiffs assert that it has a “liberal agenda” and
8 an “ideological bent.” Like Dippikill, its funding is re-
9 assessed every four years by an advisory referendum guaranteed to
10 NYPIRG by the SA.3 In the most recently reported referendum in
11 Spring 2003, the students approved, and the SA Senate allocated,
12 $5 of each student’s $80 fee to NYPIRG.
13 Amidon and Brownlow decided to counter NYPIRG’s “liberal
14 agenda” by establishing the “conservative” RSO College Action
15 Leadership League of New York (“CALL-NY”). CALL-NY “focuses on
16 affordable and accessible higher education and environmental
17 problems facing the world” and hopes to solve “consumer and
18 environmental problems” by “unleashing the power of the free
19 enterprise system.” In Spring 2003, Amidon presented a bill to
20 the SA Senate requesting a referendum to the student body on
21 whether $5 per student per semester should be allocated to CALL-
3
The parties dispute whether this referendum was advisory prior
to the 2004 amendments to the New York regulations that resulted
in the current SA bylaws. We agree with the district court that
this factual dispute is immaterial to the resolution of this
case. Amidon, 399 F. Supp. 2d at 148 n.10.
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1 NY. The SA Senate rejected the bill without adopting any
2 findings. Undaunted, CALL-NY also sought funding for the 2003-04
3 school year by submitting a proposed budget to the SA, and it was
4 allocated $1,200.
5 Plaintiffs filed suit against the SA on March 9, 2004,
6 alleging violations of their constitutional rights. The
7 following day, prior to serving the complaint, Amidon once again
8 formally requested that the SA Senate approve a referendum for a
9 $5 per student per semester allocation to CALL-NY. The SA Senate
10 voted unanimously not to place the CALL-NY funding question on a
11 referendum ballot. A CALL-NY representative then served the
12 March 9, 2004 summons and complaint upon the SA Senate president.
13 CALL-NY did not otherwise apply for funding for the 2004-05
14 school year.
15 The complaint asserted five claims against the SA under 42
16 U.S.C. § 1983. Claim I, the focus of this appeal, charged that
17 the use of student referenda to fund and defund RSOs facially
18 violated the First Amendment.4 Plaintiffs sought, inter alia,
4
Claim II asserted facial and as-applied challenges under the
First Amendment to NYPIRG’s guaranteed access to student
referenda. Claim III alleged that the SA violated the Equal
Protection Clause by guaranteeing NYPIRG access to the student
referenda while not doing so for other RSOs. Claim IV alleged
that the SA violated the Equal Protection Clause by requiring all
RSOs except NYPIRG to re-apply for funding every year. Finally,
claim V asserted an as-applied challenge under the First
Amendment claiming that the SA Senate was impermissibly vested
with “unbridled discretion” to determine whether an RSO’s funding
would be the subject of a student referendum.
In light of its grant of summary judgment to plaintiffs on
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1 declaratory and injunctive relief, nominal damages of $1 for the
2 violation of their constitutional rights, a refund of $5 per
3 plaintiff per semester of their mandatory student activity fees,
4 and attorney’s fees.
5 Plaintiffs moved for summary judgment. NYPIRG, believing
6 that plaintiffs’ primary goal was to defund it, sought, and was
7 granted, permission to intervene. NYPIRG and the SA filed cross-
8 motions for summary judgment.
9 The district court granted summary judgment to plaintiffs on
10 claim I. Amidon, 399 F. Supp. 2d at 153. The district court
11 held that SUNY-Albany had created a public forum in the form of a
12 fund to support student speech, for which viewpoint neutrality
13 was required. Id. at 147-48. It concluded that the use of
14 advisory referenda was facially viewpoint-based because it
15 necessarily “reflect[ed] the majority view of the value of the
16 RSO on the ballot,” did not serve as a proxy for the amount of
17 funding needed, and simply informed the decision makers of public
18 opinion about the group applying for funding. Id. at 150.
19 NYPIRG and the SA timely appealed, and plaintiffs cross-
20 appealed.
21 DISCUSSION
their first claim, the district court dismissed claims II, III,
and V. See Amidon, 399 F. Supp. 2d at 151-52. The district
court dismissed claim IV without prejudice because neither party
presented sufficient evidence to warrant granting summary
judgment. Id. at 153.
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1 We review the district court’s grant of summary judgment de
2 novo. Town of Southold v. Town of East Hampton, 477 F.3d 38, 46
3 (2d Cir. 2007). Summary judgment is appropriate when “there is
4 no genuine issue as to any material fact and . . . the moving
5 party is entitled to a judgment as a matter of law.” Fed. R.
6 Civ. P. 56(c). We must construe all the evidence in the light
7 most favorable to the nonmoving party, drawing all inferences and
8 resolving all ambiguities in its favor. LaSalle Bank Nat’l Ass’n
9 v. Nomura Asset Capital Corp., 424 F.3d 195, 205 (2d Cir. 2005).
10 I. Constitutionality of the Use of Advisory Referenda
11 We are asked to rule on the constitutionality of the SA’s
12 referendum policy in the context of a facial challenge. In
13 raising a facial challenge, plaintiffs face a “heavy burden.”
14 Nat’l Endowment of the Arts v. Finley, 524 U.S. 569, 580 (1998)
15 (quoting Rust v. Sullivan, 500 U.S. 173, 183 (1991)). Facial
16 invalidation is “strong medicine,” Lopez Torres v. N.Y. State Bd.
17 of Elecs., 462 F.3d 161, 205 (2d Cir. 2006), and is used
18 “sparingly and as a last resort.” Finley, 524 U.S. at 580
19 (quoting Broderick v. Oklahoma, 413 U.S. 601, 613 (1973)). To
20 prevail, plaintiffs must “demonstrate a substantial risk” that
21 application of the challenged practice or provision will lead to
22 a First Amendment violation. See id.
23 Plaintiffs’ challenge to the use of advisory referenda is
24 based upon the jurisprudence of compelled speech. After
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1 discussing compelled speech doctrine in general, we will turn to
2 its application to mandatory student activity fees.
3 A. Viewpoint Neutrality and Student Activity Fees
4 The First Amendment’s guarantee of freedom of speech
5 includes both the right to speak freely and the right to refrain
6 from speaking at all. Wooley v. Maynard, 430 U.S. 705, 714
7 (1977); see also Riley v. Nat’l Fed’n of the Blind of N.C., 487
8 U.S. 781, 796-97 (1988). “If there is any fixed star in our
9 constitutional constellation, it is that no official, high or
10 petty, can prescribe what shall be orthodox in politics,
11 nationalism, religion, or other matters of opinion or force
12 citizens to confess by word or act their faith therein.” W. Va.
13 State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
14 Consequently, individuals may “hold a point of view different
15 from the majority and . . . refuse to foster . . . an idea they
16 find morally objectionable.” Wooley, 430 U.S. at 715.
17 Because an individual should be allowed to believe as he
18 sees fit without coercion from the state, his First Amendment
19 interests are implicated when the state forces him to contribute
20 to the support of an ideological cause he opposes. See Abood v.
21 Detroit Bd. of Educ., 431 U.S. 209, 234-35 (1977). In
22 articulating this right, the Supreme Court has acknowledged
23 Thomas Jefferson’s view that “to compel a man to furnish
24 contributions of money for the propagation of opinions which he
25 disbelieves[] is sinful and tyrannical.” Id. at 234 n.31
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1 (quoting I. Brant, James Madison: The Nationalist 354 (1948))
2 (internal quotation marks omitted). Accordingly, the Court has
3 held that teachers’ unions and state bar associations, to which
4 members of those professions are required to pay dues, cannot
5 expend objecting members’ dues on ideological activities not
6 “germane” to their purposes. See id. at 235-36 (teachers’
7 unions); Keller v. State Bar of Cal., 496 U.S. 1, 13-14 (1990)
8 (state bar associations).
9 The Court has applied similar principles to restrict the
10 ability of public universities to expend funds that students are
11 required to contribute in the form of activity fees. In Board of
12 Regents of the University of Wisconsin v. Southworth, 529 U.S.
13 217, 222-23 (2000) [hereinafter Southworth I], the University of
14 Wisconsin supported the activities of RSOs through a fund to
15 which every student was required to contribute. One of the ways
16 the RSO could obtain funding was through binding student
17 referenda on whether the RSO should be funded or defunded. Id.
18 at 224-25, 235. Some students challenged the process as
19 violative of their rights to freedom of expression and
20 association because it forced them to contribute to speech
21 activities with which they disagreed. Id. at 227.
22 The Court upheld the fee, but, for a number of reasons,
23 declined to apply the “germaneness” standard it used to evaluate
24 the expenditures of teachers’ unions and bar associations. Given
25 that a university seeks, as part of its mission, “to stimulate
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1 the whole universe of speech and ideas,” the standard appeared
2 unworkable. Id. at 232. The Court also afforded a degree of
3 deference to the school’s judgment, stating that it “is not for
4 the Court to say what is or is not germane to the ideas to be
5 pursued in an institution of higher learning.” Id. The Court
6 was also concerned that its disposition could make the
7 university’s program “ineffective.” Id. As a result, the Court
8 did not require the university to allow “each student to list
9 those causes which he or she will or will not support.” Id. The
10 Court instead imposed a less onerous safeguard for objecting
11 students borrowed from its analogous public forum cases: Funds
12 from a mandatory student activity fee to support student speech
13 must be allocated in a viewpoint-neutral way. Id. at 229-30,
14 233-34.
15 The Court left undecided whether the use of a binding
16 referendum to fund or defund an RSO violated the First Amendment.
17 Id. at 235-36. In dicta, however, the Court stated:
18 It is unclear to us what protection, if any, there is
19 for viewpoint neutrality in this part of the process.
20 To the extent the referendum substitutes majority
21 determinations for viewpoint neutrality it would
22 undermine the constitutional protection the program
23 requires. The whole theory of viewpoint neutrality is
24 that minority views are treated with the same respect
25 as are majority views. Access to a public forum, for
26 instance, does not depend upon majoritarian consent.
27 That principle is controlling here.
28
29 Southworth I, 529 U.S. at 235 (emphasis added).
30 B. Use of Advisory Referenda
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1 In this case, we are asked to decide whether, on its face,
2 the SA’s advisory student referenda provisions violate Southworth
3 I’s requirement of viewpoint neutrality.
4 As a preliminary matter, we agree with the district court
5 that our decision in Carroll v. Blinken, 957 F.2d 991 (2d Cir.
6 1992), is not controlling. In that case, students sued SUNY-
7 Albany and NYPIRG because, inter alia, NYPIRG was allocated funds
8 every two years from a pool of student activity fees based upon
9 an advisory student referendum. Id. at 993-94. Although we held
10 that the students’ funding of NYPIRG’s activities amounted to
11 compelled speech and association, id. at 997, we concluded with
12 scant analysis that use of the referendum was content-neutral.
13 Id. at 999. Importantly, we decided Carroll prior to the Supreme
14 Court’s decision in Southworth I – which cast doubt on the use of
15 referenda – and analyzed the funding provision as a regulation of
16 the “non-speech” elements of expressive conduct and a time,
17 place, and manner restriction. See id. at 999 (citing to both
18 classes of cases). Given our lack of full explanation in
19 Carroll and the Supreme Court’s intervening decision, we are free
20 to decide anew whether the SA’s use of advisory student referenda
21 discriminates based on viewpoint. See Mastrovincenzo v. City of
22 N.Y., 435 F.3d 78, 93 (2d Cir. 2006).
23 1. Allocation Versus Funding
24 Defendants argue that because the advisory referenda at
25 issue help to determine the amount of funding an RSO receives
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1 rather than whether to fund at all, the referenda do not
2 implicate the First Amendment concerns articulated in Southworth
3 I. Because, given the nature of the public forum at issue, a low
4 level of funding can have the same impact as no funding at all,
5 we find that this factual difference has no constitutional
6 significance.
7 A pool of student activity fees to fund private speech is a
8 limited public forum in which forum principles apply.
9 Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S.
10 819, 830 (1995). There may be restrictions on speech in a
11 limited public forum so long as they are viewpoint-neutral and
12 reasonable in light of the forum’s purpose, see Make the Road by
13 Walking, Inc. v. Turner, 378 F.3d 133, 143 & n.4 (2d Cir. 2004);
14 see also Bronx Household of Faith v. Bd. of Educ., 331 F.3d 342,
15 351 (2d Cir. 2003), and do not serve as a facade for viewpoint
16 discrimination, Cornelius v. NAACP Legal Def. & Educ. Fund, 473
17 U.S. 788, 812 (1985). The denial of funding in a viewpoint-
18 discriminatory manner is as impermissible as the denial of access
19 to a physical forum in a viewpoint-discriminatory manner. See
20 Good News Club v. Milford Cent. Sch., 533 U.S. 98, 110 (2001);
21 see also Rosenberger, 515 U.S. at 830-31, 835. This proscription
22 on how funds are allocated is compelled partly by the danger to
23 liberty when the state sets out to classify speech and the risk
24 that protected speech will be chilled when school officials “cast
25 disapproval on particular viewpoints of its students . . . in one
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1 of the vital centers for the Nation's intellectual life, its
2 college and university campuses.” See Rosenberger, 515 U.S. at
3 836.
4 A university’s viewpoint-discriminatory decision respecting
5 how much funding to allocate to an RSO raises the same concerns
6 as a viewpoint-discriminatory decision respecting whether to fund
7 an RSO at all. The level of funding a group receives may serve
8 as an expression of approval or disapproval of the group’s
9 message. And the amount allocated to a group, whether a lot or a
10 little, can skew debate on issues on which the group advocates a
11 position. In this context, a comparatively low level of funding
12 may not be much different than a complete denial of funding. A
13 parallel lies in the realm of campaign contributions:
14 A restriction on the amount of money a person or group
15 can spend on political communication during a campaign
16 necessarily reduces the quantity of expression by
17 restricting the number of issues discussed, the depth
18 of their exploration, and the size of the audience
19 reached. This is because virtually every means of
20 communicating ideas in today’s mass society requires
21 the expenditure of money.
22
23 Buckley v. Valeo, 424 U.S. 1, 19 (1976) (per curiam); see also
24 Fed. Election Comm’n v. Nat’l Conservative Political Action
25 Comm., 470 U.S. 480, 493 (1985).
26 The defendants argue that RSOs only have “an equal
27 opportunity to be considered for funding,” but not a “right to
28 equal funding,” and therefore the First Amendment only requires
29 that RSOs have “access” to the fund. While we do not disagree
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1 with the defendants’ predicates, their conclusion misses the
2 point of Southworth I: A funding decision based on the speaker’s
3 viewpoint is impermissible irrespective of whether the harmed RSO
4 had the same right as any other RSO to be “considered” for
5 funding.
6 2. Whether the Referenda Reflect Viewpoints
7 Viewpoint discrimination is a “subset or particular instance
8 of the more general phenomenon of content discrimination,” in
9 which “the government targets not subject matter but particular
10 views taken by speakers on a subject.” Rosenberger, 515 U.S. at
11 829, 831. We have no doubt that the student referendum in this
12 case reflects the student body’s majority opinion of the value or
13 popularity of an RSO’s speech. Indeed, the SA concedes as much
14 in its brief when it states that “[a]ny RSO may use such an
15 advisory referendum in an effort to demonstrate widespread
16 support among the student body for the services provided by an
17 RSO.” SUNY Blue Br. at 36.
18 It is apparent that any contrary or minority view is at a
19 disadvantage because the referendum simply asks the student body
20 whether an RSO is entitled to a certain amount of funding. For
21 example, according to an affidavit of NYPIRG’s executive
22 director, NYPIRG’s referendum was used “to gauge whether there is
23 continued support from the student body for the educational
24 programming services and resources provided by NYPIRG.”
25 Similarly, the referenda submitted by CALL-NY asked for a set
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1 amount of funding per student per semester. Viewpoint
2 discrimination arises because the vote reflects an aggregation of
3 the student body’s agreement with or valuation of the message an
4 RSO wishes to convey. Cf. Forsyth County v. Nationalist
5 Movement, 505 U.S. 123, 134 (1992) (concluding that a fee for
6 holding an assembly or parade was based on the content of an
7 applicant’s speech because an administrator “‘must necessarily
8 examine the content of the message that is conveyed,’ [and]
9 estimate the response of others to that content” (internal
10 citation omitted)); Ward v. Rock Against Racism, 491 U.S. 781,
11 791 (1989).
12 We reject the defendants’ argument that there is no
13 viewpoint discrimination here because some RSOs simply do not
14 generate any real public interest. Defendants rely on the
15 Supreme Court’s decision in Arkansas Educational Television
16 Commission v. Forbes, 523 U.S. 666 (1998). Forbes held that a
17 public television network could exclude an independent
18 congressional candidate who lacked any real public support from a
19 televised debate that included the Democratic and Republican
20 candidates. Id. at 682-83. Although the Court held that the
21 televised debate was a nonpublic forum in which viewpoint
22 discrimination was prohibited, it concluded that the candidate’s
23 exclusion was not viewpoint discrimination because he “was
24 excluded not because of his viewpoint but because he had
25 generated no appreciable public interest.” Id. at 682.
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1 Forbes’ theory of viewpoint neutrality is distinguishable.
2 The Court explained that when the network excluded Forbes from
3 the debate,
4 objective lack of support, not . . . platform, was the
5 criterion. . . . A candidate with unconventional views
6 might well enjoy broad support by virtue of a
7 compelling personality or an exemplary campaign
8 organization. By the same token, a candidate with a
9 traditional platform might enjoy little support due to
10 an inept campaign or any number of other reasons.
11
12 523 U.S. at 683. Forbes drew a distinction, perhaps subtle,
13 between a candidate’s viewpoint and the degree of interest in
14 hearing the candidate, and concluded, in that context, that one
15 was not necessarily a proxy for the other.
16 Unlike Forbes, the vote in a student body referendum
17 substantially captures one thing: the student body’s valuation of
18 the RSO. While the policy at issue in Forbes may have skewed
19 debate in favor of charismatic candidates or well-run campaigns,
20 the referendum policy creates a substantial risk that funding
21 will be discriminatorily skewed in favor of RSOs with
22 majoritarian views. Favoritism of majority views is not an
23 acceptable principle for allocating resources in a limited public
24 forum. See Rosenberger, 515 U.S. at 835; see also Southworth I,
25 529 U.S. at 235.
26
27 3. The Advisory Nature of the Referenda
28 These viewpoint-discriminatory referenda have no place in
29 the funding allocation process, which requires that “minority
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1 views [be] treated with the same respect as are majority views.”
2 Southworth I, 529 U.S. at 235. The SA conceded at oral argument
3 before the district court that the referendum “really serves no
4 purpose in a viewpoint-neutral decision making process.” Amidon,
5 399 F. Supp. 2d at 151. Use of the referendum, on the other
6 hand, can place minority views “at the mercy of the majority.”
7 See Sante Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 304 (2000).
8 The SA therefore has no reason to use these purposeless but
9 discriminatory referenda in its allocation decisions. And we
10 think this is true even when the referenda are advisory.
11 The defendants argue that the First Amendment is offended by
12 the student referenda only when their viewpoint-discriminatory
13 results require a particular funding decision; conversely, they
14 argue, when the referenda are only advisory, the SA is free to
15 disregard the results and maintain viewpoint neutrality. We
16 disagree: While a decision maker is free to disregard a
17 viewpoint-discriminatory, advisory referendum, this practice
18 nevertheless injects a substantial risk of undetectable viewpoint
19 discrimination into the allocation process.
20 An analogous situation may be found in the constitutional
21 proscription against granting unbridled discretion in the prior
22 restraint context. The Court prohibits unbridled discretion
23 because it allows officials to suppress viewpoints in
24 surreptitious ways that are difficult to detect. See Forsyth
25 County, 505 U.S. at 130-31; see also Thomas v. Chicago Park
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1 Dist., 534 U.S. 316, 323 (2002). In order to make decisions
2 granting or denying permits subject to effective judicial review,
3 there must be “adequate standards to guide the official’s
4 decision.” Field Day, LLC v. County of Suffolk, 463 F.3d 167,
5 176 (2d Cir. 2006) (quoting Thomas, 534 U.S. at 323). While we
6 do not require “perfect clarity and precise guidance,” Ward, 491
7 U.S. at 794; see also Field Day, 463 F.3d at 179, a law
8 subjecting speech to a prior restraint must, as a prophylactic
9 matter, contain “narrow, objective, and definite standards to
10 guide the licensing authority.” Forsyth, 505 U.S. at 131
11 (quoting Shuttlesworth v. Birmingham, 394 U.S. 147, 150-51
12 (1969)).
13 Although the defendants are correct that the Supreme Court
14 has not incorporated the rule against unbridled discretion into
15 the requirement of viewpoint neutrality, the Seventh Circuit’s
16 decision in Southworth on remand from the Supreme Court
17 illustrates the appropriateness of such a rule. See Southworth
18 v. Bd. of Regents of the Univ. of Wis., 307 F.3d 566, 578 (7th
19 Cir. 2002) [hereinafter Southworth II]. In determining whether
20 the plaintiff had standing to mount a facial challenge to the
21 university’s program, the Seventh Circuit held that “the
22 prohibition against unbridled discretion is a component of the
23 viewpoint-neutrality requirement.” Id. at 579. The court
24 engrafted this requirement onto Southworth I’s viewpoint-
25 neutrality test because of the risks of viewpoint discrimination
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1 that attend unbridled discretion and because of the Supreme
2 Court’s application of forum principles to student activity
3 funds. Id. at 578-80.
4 While there is no need for us to hold that unbridled
5 discretion in general violates Southworth I’s call for viewpoint
6 neutrality, the use of these advisory referenda raises concerns
7 similar to those in Southworth II. A student referendum
8 incorporated into the RSO funding process provides the SA Senate
9 with a window into how the student body has valued an RSO,
10 increasing the risk that it will make a viewpoint-discriminatory
11 decision to appease its electoral constituents. Because the
12 referendum incorporated in the funding process is only advisory,
13 courts cannot tell the degree to which the referendum infected
14 the SA’s decision.
15 The Supreme Court has suggested that the use of referenda
16 might be constitutional depending upon “what protection . . .
17 there is for viewpoint neutrality.” See Southworth I, 529 U.S.
18 at 235. But here there are no effective safeguards to prevent a
19 discriminatory advisory referendum from tainting the allocation
20 process. The defendants point to SA Bylaw § 517.5, which
21 provides the following nonexclusive criteria to determine whether
22 the SA should use a referendum to determine funding:
23 1. “[W]hether the organization can demonstrate that it
24 will expend funds for the enrichment of campus life at
25 [SUNY-]Albany”
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1 2. “[W]hether the organization can provide services that
2 complement the educational mission of [SUNY-]Albany”
3 3. “[W]hether the organization can demonstrate that it has
4 undertaken successful events and activities in the
5 past”
6 4. “[W]hether the organization maintains a constitution or
7 bylaws”
8 5. “[W]hether the organization is directed by students”
9 6. “[W]hether the organization can demonstrate sufficient
10 student interest in its activities to warrant a
11 particular level of funding”
12 Just as written criteria alone do not ensure that an
13 official’s discretion is adequately “bridled,” Beal v. Stern, 184
14 F.3d 117, 126 n.6 (2d Cir. 1999), the foregoing criteria do not
15 save the use of advisory referenda. First, because the criteria
16 are nonexclusive, there is a disconcerting risk that the SA could
17 camouflage its discriminatory use of the referenda through post-
18 hoc reliance on unspecified criteria. See City of Lakewood v.
19 Plain Dealer Publ’g Co., 486 U.S. 750, 757-58 (1988). Second, of
20 the enumerated criteria, factors (1) and (2) are too vague and
21 pliable to effectively provide the constitutional protection of
22 viewpoint neutrality required by Southworth I. In sum, we fail
23 to see how viewpoint-discriminatory referenda can be saved by a
24 nonexclusive set of “safeguards,” some of which are so indefinite
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1 as to be meaningless and thus incapable of providing guidance to
2 student decision makers.
3 The requirement that each RSO complete a standard evaluation
4 form, see SA Bylaw § 513.1, also does not help. While it
5 provides useful information to the SA, the parties point to no
6 standards governing its use.
7 Finally, the SA Constitution’s general requirement that
8 funding decisions be viewpoint-neutral is insufficient to salvage
9 the process. SA Const. § 808. While it is important and useful
10 for the SA to acknowledge the obligations imposed by Southworth
11 I, the bare statement without meaningful protections is
12 inadequate to honor its commands. It does nothing to help courts
13 identify covert viewpoint discrimination, nor does it prevent
14 self-censorship by timid speakers who are worried that officials
15 will discriminate against their unorthodox views notwithstanding
16 constitutional proscriptions. Cf. Southworth II, 307 F.3d at
17 578-79. We acknowledge that the Seventh Circuit in Southworth
18 II held that the student association was not vested with
19 unbridled discretion because the university had an express policy
20 prohibiting viewpoint discrimination, sanctions for the violation
21 of viewpoint neutrality, and imposed procedural requirements for
22 hearings, see id. at 587-88, all of which are present here. And
23 we do not necessarily disagree with that holding, as far as it
24 goes. But there was no advisory referendum policy at issue in
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1 that case. The question was limited to whether the student
2 association had unbridled discretion to make funding decisions.
3 The defendants argue that deference is due to the manner in
4 which schools accomplish their educational missions. See, e.g.,
5 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988)
6 (upholding the censorship of a high school newspaper where it was
7 “reasonably related to legitimate pedagogical concerns”); Bethel
8 Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685-86 (1986)
9 (upholding the disciplining of a high school student for a
10 sexually explicit speech at a school assembly). But cases like
11 Hazelwood explicitly reserved the question of whether the
12 “substantial deference” shown to high school administrators was
13 “appropriate with respect to school-sponsored expressive
14 activities at the college or university level,” 484 U.S. at 273
15 n.7, where the relation between students and their schools is
16 “different and at least arguably distinguishable.” See
17 Southworth I, 529 U.S. at 238 n.4 (Souter, J., concurring). In
18 Southworth I, the Supreme Court established the appropriate
19 degree of deference owed to universities in implementing funding
20 programs by imposing a requirement of viewpoint neutrality rather
21 than germaneness. See id. at 232-33. We see no reason to grant
22 the SUNY-Albany additional latitude.
23 The defendants need not be troubled that our views of the
24 matter would prevent a university from allocating its scarce
25 monetary resources unevenly among RSOs. The demand for proceeds
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1 from SUNY-Albany’s student activity fund will undoubtedly exceed
2 supply. Southworth v. Bd. of Regents of Univ. of Wis., 376 F.3d
3 757, 772 (7th Cir. 2004) [hereinafter Southworth III]. While
4 economic scarcity cannot justify viewpoint discrimination in
5 funding student activities, Rosenberger, 515 U.S. at 835, we have
6 no concern with differential funding so long as the allocation
7 decisions are made without regard to the recipients’ viewpoints.
8 SUNY-Albany is therefore free to allocate based upon
9 neutral, objective criteria, see Rosenberger, 515 U.S. at 835;
10 Southworth II, 307 F.3d at 595, that ultimately have a disparate
11 impact on different viewpoints so long as the university’s
12 purpose is not to discriminate based on viewpoint. See Boy
13 Scouts of Am. v. Wyman, 335 F.3d 80, 93-94 (2d Cir. 2003).
14 Because an RSO’s financial needs do not necessarily reflect its
15 viewpoint, the university does not “impermissibly distort[] [its]
16 marketplace of ideas” by considering those needs. Cf. Davenport
17 v. Wash. Educ. Ass’n, 127 S. Ct. 2372, 2381 (2007). The SA may
18 therefore consider the varying costs RSOs will face in
19 communicating their messages and providing their services, such
20 as the size of space needed or the costs of distributing programs
21 to attendees. See Southworth II, 307 F.3d at 595. If an RSO
22 demands an amount of funding that does not genuinely reflect its
23 costs and needs, the SA is free to provide less. But the
24 university must ensure that the allocation decision is based upon
25 an RSO’s objective financial needs.
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1 Consistent with public forum principles, our decision does
2 not foreclose the use of advisory referenda that are reasonable
3 in light of the forum’s purpose and viewpoint neutral. For
4 example, we see no impediment to using an advisory referendum
5 (or, perhaps more aptly labeled, a survey) to ascertain how many
6 students anticipate attending a specific event for which an RSO
7 seeks funding as a means of assessing that RSO’s prospective
8 costs. The referendum at issue here, which asks simply whether
9 an RSO should receive a certain amount of funding, plainly
10 crosses the line and fails to provide the protection of viewpoint
11 neutrality the constitution requires.
12 4. The Use of Advisory Referenda Under Strict
13 Scrutiny
14 Because the use of the advisory referenda at issue here
15 amounts to viewpoint discrimination, to pass constitutional
16 muster this practice must survive strict scrutiny, cf. Boos v.
17 Barry, 485 U.S. 312, 321 (1988), which requires that the policy
18 be narrowly tailored to serve a compelling governmental interest,
19 Hotel Employees, 311 F.3d at 545; see also R.A.V., 505 U.S. at
20 395; Hobbs v. County of Westchester, 397 F.3d 133, 149 (2d Cir.
21 2005).
22 The defendants do not argue that the advisory referenda
23 serve a compelling purpose; rather, they argue that the SA is
24 free to disregard them to the extent they are viewpoint-
25 discriminatory. Nor is there a meaningful claim that they are
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1 narrowly tailored to any compelling interest. Consequently, the
2 district court properly granted summary judgment to plaintiffs
3 and denied summary judgment to the SA and NYPIRG.
4 II. Use of Binding Referenda in Allocating Funds to NYPIRG
5 Plaintiffs argue on cross-appeal that the SA violated the
6 First Amendment by using a binding referendum to allocate funding
7 to NYPIRG. We do not reach this issue because plaintiffs were
8 untimely in filing their cross-appeal notice.
9 A cross-appellant must file within (1) 30 days of entry of
10 judgment or (2) 14 days after the filing of the first notice of
11 another party, whichever is later. Fed. R. App. P. 4(a)(3); see
12 also In re Johns-Manville Corp., 476 F.3d 118, 120 (2d Cir.
13 2007). Judgment was entered on November 7, 2005, and the SA and
14 NYPIRG filed their notices of appeal on December 6, 2005.
15 Plaintiffs filed their cross-appeal notice on January 5, 2006,
16 beyond the time limit. Even if it remains an open question
17 whether the non-statutory timing requirement for filing a cross-
18 appeal is jurisdictional after Bowles v. Russell, 127 S. Ct.
19 2360, 2365-66 (2007) (holding that statutory time limits on
20 filing notices of appeal are jurisdictional), we must strictly
21 enforce the time limit if an adverse party invokes it, In re
22 Johns-Manville Corp., 476 F.3d at 121, 123-24, as the defendants
23 have done here.
24 CONCLUSION
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1 For the foregoing reasons, the judgment of the district
2 court is AFFIRMED.
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