Universities cannot use referendums in making funding decisions, New York court rules

A federal court ruled Nov. 7 that using campus referendums to help decide how to spend student funds at public universities is unconstitutional.

U.S. District Judge David Hurd ruled that making funding decisions based on a student referendum vote is unconstitutional because it conflicts with the 2000 U.S. Supreme Court case Board of Regents v. Southworth. In that case, the Court decided that student activity fees must be distributed in a viewpoint neutral manner.

Hurd compared using referendums to polling by city government officials.

“Such polling would never be tolerated if conducted, simply for advisory purposes, by a city official for use while determining who should be allowed to conduct a parade or protest demonstration,” the judge wrote.

Furthermore, the decision said using a referendum to decide how much to fund a student group is also impermissible.

“That is akin to allowing citizens to express their views on how long a particular group’s parade should be, or how many leaflets a particular group should be allowed to distribute,” Hurd wrote.

“The whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views,” Hurd wrote. “That is essentially what is at risk in this case – unpopular speech will be made more expensive than popular speech because the student association will subsidize the popular speech.”

Lewis Oliver, the attorney for SUNY Albany’s Student Association, said his clients are still deciding whether or not to appeal.

Case: Amidon v. Student Ass’n of the State Univ. of N.Y. at Albany, 2005 WL 2977777 (N.D.N.Y. Nov. 7, 2005).



SPLC View: While not especially common, we know that SUNY Albany is not alone in using student referendums as part of their student fee allocation process. This decision makes clear that funding decisions for student groups, including student media, must be based on viewpoint-neutral funding criteria and not be influenced by what is essentially a popularity contest. The decision should help smaller, start-up student publications that have found their school’s funding process effectively closed to them because of their bias in favoring more established student groups and student media. In fact, as the court here noted, the SUNY Albany funding process was first challenged by the publisher of a new conservative student publication at the school who was denied funding under the referendum system. That case is ongoing. The flip-side of the decision, of course, is that more established student media might see their slice of the student fee pie reduced to accommodate more newcomers.