Cannot substitute ‘majority determinations for viewpoint neutrality’
If a conservative student group lost its funding from student activity fees because lots of other students disagreed with its views, you’d be up in arms, right?
What if the main campus newspaper lost its funding for a similar reason?
That happened last month at Rutgers University, where a dubious student referendum process means the 150-year-old Daily Targum might close up shop, leaving 50,000 students at the flagship New Brunswick campus without a daily campus paper.
Every three years, the student body has to reapprove funding for the Daily. It’s not just up to those who vote: At least a quarter of the population in each Rutgers school has to vote in favor of the fee designation, meaning that a majority of votes isn’t enough to guarantee continued funding.
That leaves the independent newspaper vulnerable to defunding when its coverage upsets someone, since people who don’t like the Daily are more motivated to vote than those who like it or just take it for granted.
The Rutgers Conservative Union has spent nearly two years trying to accomplish this, encouraging students to demand the university give them back the $11.25 fee they pay each semester. Its rationale: “to give more freedom and more choice to the already over charged Rutgers student.” (The group’s ire was first raised when the Daily reported one of its posters “mimic[ked]” a white nationalist poster. The group said the resemblance was unknown and unintentional.)
According to NJ.com, the Daily already lost 14 percent of its budget in 2016 when the referendum failed in three schools within Rutgers. Last month, the referendum failed in every school solely because of the 25-percent voting threshold: Two-thirds of votes supported the Daily.
The lost revenue: $540,000, which is about 70 percent of its budget.
The newspaper is trying to privately raise the money to stay in business, as well as sharing support from alumni and other journalists on its Twitter page. But it got a big boost Monday from a different source.
The Foundation for Individual Rights in Education warned the public university it could get sued for subjecting student organizations to this popularity contest.
In a letter to Rutgers President Robert Barchi, the civil liberties organization identified multiple “unconstitutional, viewpoint-discriminatory” aspects of the funding system.
The criteria for seeking and deciding funding are laughably vague, according to FIRE’s Adam Goldstein, a longtime lawyer with the Student Press Law Center.
Student groups must be “educationally valuable,” which is not defined except to exclude partisan groups. (Rutgers already got in trouble for this policy with its federal appeals court in 1985). The student government’s “reviewing committee” makes a recommendation about proposed funding to the Rutgers president, yet neither of them is subject to “discretionary limitations.”
Rutgers is already required by a long line of legal precedents to distribute mandatory student fees in a viewpoint-neutral manner. The Supreme Court has definitively ruled that it cannot substitute “majority determinations for viewpoint neutrality” by referendum, and the 7th U.S. Circuit Court of Appeals upheld a ban on using “representative legislatures” such as student committees, Goldstein wrote.
Even nonbinding referenda to “gauge student interest” in fee allocation were struck down as discriminatory by the 2nd Circuit.
There’s simply no way the referendum system can remain without Rutgers violating its students’ constitutional rights, Goldstein continued:
It is noteworthy that the Targum’s most recent referendum reveals precisely the type of viewpoint-discriminatory voting that the Supreme Court feared would take place. The [Rutgers Conservative Union’s] #DefundTheTargum campaign was explicitly, unapologetically, and irredeemably viewpoint-based. As the referendum is facially unconstitutional, this point is academic, but it illustrates plainly why referenda are necessarily viewpoint-based, and thus provides a textbook example of why such a process cannot be reconciled with the First Amendment.
He tried to soften the blow against Rutgers, saying the public university devised a policy that “represented the state of the law” at the time.
But Goldstein warned Barchi that he needed to yank the policy and restore “immediate funding … The Targum editors may be exploring their legal rights as we speak.”