Monkey Hoes, a Registered Student Organization, Petitioner
v.
ASM Finance Committee, Respondent
2005
ASM SJ 15
Judgment
Cite as: 2005 ASM SJ 15
Before Fox, CJ, Romano, VCJ, and
Hodgson, S.J.
JUSTICE HODGSON announced the unanimous Judgment and Opinion of the Court.
CHIEF JUSTICE FOX delivered a concurring Opinion, which VICE-CHIEF JUSTICE
ROMANO joins.
VICE-CHIEF JUSTICE ROMANO delivered a concurring Opinion, which CHIEF JUSTICE FOX joins.
AMBER HODGSON, Student Justice.
1. Petitioner Monkey Hoes, a Registered Student Organization (RSO) on
campus, has filed a complaint alleging various infractions of the viewpoint
neutrality requirements by the Finance Committee regarding Petitioner’s travel
grant request. Petitioner’s organization
is a group which is designed to do “fun” things which provide alcohol-free
alternatives to students over the weekend.
As part of their organization’s activities, Petitioner planned a trip to
the Shedd Aquarium in
2. Petitioner alleges
that the Finance Committee improperly considered the viewpoint of the
organization when determining its travel grant request, and also improperly
applied travel grant criteria to the RSO.
Complaint. At oral argument, both parties stipulated
that there was no procedural error during the consideration of the travel
grant. Since both parties stipulate to
this fact, and since Petitioner formally withdraws its complaint in regards to
this matter, the Student Judiciary sees no need to reach the issue since no
current case or controversy exists under ASM law. Rule 12(d), Student Judiciary Rules of Procedure (2005); see also, ASM Const. Art. IX
§ 3(c) (2005); ASM Bylaws Section 5.04(F)(I)(4); Vogel v. Romano, 2004 ASM
SJ 6; Sanford v. Kuether, 2004 ASM SJ
12.
3. The Court believes
that when hearing and deciding on Monkey Hoes’ travel grant request, the
Finance Committee improperly considered the viewpoint of the group by
considering their travel to be “too social.” The segregated fee system serves a
large and encompassing purpose. The
Supreme Court in Southworth, 529 U.S.
217, noted the University’s designed purpose for the forum created by segregated
fees, "In the University’s view, the activity fees ‘enhance the
educational experience’ of its students by ‘promot[ing] extracurricular
activities,’ ‘stimulating advocacy and debate on diverse points of view,’
enabling ‘participa[tion] in political activity,’ ‘promt[ing] student
participat[ion] in campus administrative activity,’ and providing
‘opportunities to develop social skills,’ all consistent with the University’s
mission."
4. The Court does
acknowledge that activities supported by segregated fees must to some degree
enhance the educational experience and processes of the University; this does
not mean, however, that activities which are largely social in nature have
absolutely no value to that educational experience whatsoever. While student segregated fees should be used
for the enhancement of the educational process, the educational process
includes more than merely “educational” or academic endeavors as they are
traditionally defined. The educational process can include, at least, social
activities and “fun” things.
5. It is clear from
the record and the recordings of the travel grant hearing that Finance
Committee members improperly took the social viewpoint of the organization into
account when determining funding levels.
Finance Committee members continually expressed their concern that the
activity and group were "too social" and that the Finance Committee
should not be funding "fun" activities. The discussion, however, omits any relevance
to enhancing the overall educational experience of the campus. Because the Finance Committee voted to deny
funding based on the Monkey Hoes being “too social,” they discriminated against
a social viewpoint.
6. It can certainly
be argued that if a group is entirely social, their funding request could not
arguably enhance the educational experience of the group and the campus. In such an instance, the Finance Committee
would be correct in denying funding because the funding request is outside the
scope of the forum. If a group can show,
though, that a social event does in some way enhance the educational experience
of the group and or campus, that the event does contain some educational
component, or that the event will more broadly enhance the educational
experience of the group, then the Finance Committee is not justified in denying
funding solely because the organization is socially-based. Even if the event might be more social in
nature, that is not enough to deny funding on those grounds. It must be shown that the “socialness” of the
event cannot reasonably be believed to enhance the educational experience on
campus. The Finance Committee cannot say
that they disapprove of the purpose of an organization and therefore deny it
funding. If the purpose of a student organization, like Monkey Hoes, is to
“have fun,” the Finance Committee cannot refuse them funding solely because the
Committee does not like social groups or socially-based activities.
7. In addition to
improperly taking in account the organization's viewpoint, the Finance Committee
improperly forced the Monkey Hoes to find co-sponsors for their grant. While
there is nothing wrong with asking groups to find co-sponsors—indeed the
requirement is neutral and generally-applicable—the Finance Committee cannot
deny a group funds if the group has an objection or reservation about seeking
outside sources of funds. This would
invalidate the requirement as-applied to the group in question. Groups may have
a viewpoint in favor of self-reliance, or against co-sponsors. If that is so, the Finance Committee
discriminates against such a group by forcing them to have co-sponsors when
they do not want them.
8. CHIEF JUSTICE FOX noted in his concurrence to UWRCF v. SSFC (I), 2005 ASM SJ 11 at
¶22-23, that forcing a private group to include members which may undermine the
expressive viewpoint of the organization is unconstitutional under the First
Amendment to the United States Constitution (citing Roberts v. U.S. Jaycees, 468 U.S. 609; Boy Scouts v. Dale, 530 U.S. 640). The same compelled association
argument can be made here: if a group
expresses to the Finance Committee that it has reservations or objections about
asking for outside funds, the Finance Committee cannot deny them funding based
solely on this criterion. The Finance
Committee cannot force a group to associate with others if that group has a
reservation or objection about such association; otherwise, the Finance
Committee would be compelling association and consequently violating the
group's First Amendment rights. During
their presentation to the Finance Committee, the Monkey Hoes expressed
discomfort with several suggested co-sponsors.
Because the group did not feel that association was a viable option, the
Finance Committee discriminated against them by denying funds based on a lack
of co-sponsors.
9. Therefore, not
only did the Finance Committee interpret “educational benefit” too narrowly
given the broad boundaries of the forum and the many activities that can to
some degree enhance the educational experience on campus, but it also
improperly used co-sponsorship in its decision, and thus discriminated against
a social viewpoint, even though the funding for the group could reasonably be
believed to enhance the educational experience on campus, regardless of the
social context.
Wherefore, for the reasons stated above:
IT IS ORDERED that the Finance Committee's funding
determination be REVERSED;
IT IS FURTHER ORDERED that the cause is CERTIFIED to the
Student Council for a new hearing without prejudice or reference to the earlier
decision.
Nicholas J. Fox, Chief Justice
Nathaniel V. Romano, Vice-Chief Justice
Amber Hodgson, Student Justice
Published:
Attest: /s/ NJF
* * * * *
NICHOLAS J. FOX, Chief
Justice, with whom VICE-CHIEF JUSTICE ROMANO joins, (concurring). 10. I
write today to join the Opinion of the Court and to comment on a few matters
which I feel need to be underscored.
Firstly, as the Opinion notes, merely because the Finance Committee does
not agree with a "social" viewpoint does not mean the Committee can
deny funding based on that prejudice.
Events which are social in nature can enhance the educational experience
of the group or campus, and therefore are eligible for funding. I would certainly uphold a denial of funds if
the Finance Committee could show that there would be no educational component
of an activity, or if that activity in no way could be argued to reasonably
enhance the educational experience of the campus. In this case, however, the denial was
premised on the fact that the group and activity were "too social"
without any link to the larger educational experience of the campus.
11. In addition, it
appears that the requirement for co-sponsors is a valid requirement in that it
is neutral and generally applicable.
However, the requirement as applied in this case fails in one important
way: as applied, it forces a group to
associate with others, even though that group has expressed reservations about
doing so. This is clearly compelled
association. The Finance Committee
cannot mandate that a group with an expressive viewpoint and ideology associate
with other people or groups which may not share that ideology.
12. At oral argument,
the Finance Committee attempted to argue that the co-sponsorship requirement
was only enforced "when reasonable."
I believe that this caveat does allow more flexibility within the
requirement itself. However, it is not
reasonable in the first instance to force a group to associate with other
groups if the group in question has a reservation or objection to that
association. If a group is uncomfortable
with associating with other groups, the co-sponsorship criterion is by default
unreasonable and therefore cannot be applied in the instant case.
13. I do want to
note, though, that a group which has objections to co-sponsors needs to address
that during its presentation before the Finance Committee. The Finance Committee can only base its
decisions on the information that is presented to it. If a group fails to raise that point during
their presentation, the Committee cannot reasonably be believed to know that
the group objects to this type of association.
The group cannot raise an objection after the fact, as if it was a
last-ditch effort to get a new hearing.
It is clear from the record that the group in question has reservations
about associating with other University departments and groups about this
specific activity. This is enough to
convince me that denying funding on this criterion is the equivalent of denying
funding because of compelled association.
14. However, I do
express my doubts as to whether the funding was central to the organization
itself. This Court noted in Belknap, ex rel The Crossing v. ASM Finance
Committee, 2004 ASM SJ 15, that travel grants must be central to the
organization. Then CHIEF JUSTICE ROMANO noted in concurrence that
"centrality" does not necessarily mean that a group will receive
funding, and that the travel grant must be the sine qua non of an organization; in other words, without the travel
funding, the organization would not continue to develop or would cease to exist
altogether.
15. Since there were
other violations found in regards to the Finance Committee's decision, I am
convinced that a new hearing must be ordered to ensure fairness. However, should the centrality of the travel
to the organization be the sole question before the Court, as it was in Belknap, the burden of proof becomes
higher for Petitioner. This is not the
case here, and so I concur with the Court that the Finance Committee's decision
must be vacated and a new hearing ordered.
Nicholas Fox, Chief Justice
Nathaniel Romano, Vice-Chief Justice
* * * * *
NATHANIEL ROMANO, Vice-Chief Justice, with whom CHIEF JUSTICE FOX joins (concurring). 16.
Agreeing in full with both opinions of my learned colleagues, I write
simply to stress the fact that, in making funding decisions, no ASM body may
make judgments about the legitimacy of any group that they are evaluating. The sole method by which they may judge a
group is through the unbiased application of neutral criteria. Groups may not be penalized because they
compare unfavorably with other groups, in the minds of the committee
members. Collegians for A Constructive Tomorrow v. Stone et. al., 2005 ASM
SJ 14 at ¶10 (finding a malicious violation for such a comparison); Collegians for A Constructive Tomorrow v.
Kiernoziak et. al., 2004 ASM SJ 16 at 3, aff’d, Collegians for A Cosntructive Tomorrow v. Kiernoziak Appeal,
2005 ASM SJ 1 (en banc) (finding a
non-malicious violation of the same).
Likewise, funding bodies may not simply conclude that an organization is
inappropriate for the educational process and deny them funding. The educational process includes far more
than merely academic debates. As I
stated in the Belknap case,
[e]ducation at
17. Neither the ASM Finance Committee nor any of
its members have any ability to adequately and properly judge how the mind of
any particular person is best nourished; there is nothing special about ASM
that gives its officers the ability to peer into men’s souls. Nor, indeed, can this Court. Given that, ASM bodies must assume that any
proffered rationale for existence is legitimate, and apply simply on the basis
of the neutral criteria. To decide that
Monkey Hoes should not be funded because they are not “educational” enough is
simply to decide that the manner by which these students seek to “feed the mind
and nourish the person” is bad. ASM
cannot make those types of decisions. So
long as Monkey Hoes, or other funding applicants, are not seeking to engage in
illegal activities, or activities so far beyond the pale that no reasonable
person could consider them remotely connected to the educational experience,
their mission is legitimate and the Finance Committee was wrong as a matter of
law to deny them funds based on that mission.
Accordingly, I concur with the Court.
Nathaniel
Romano, Vice-Chief Justice
Nicholas
Fox, Chief Justice