UW Roman Catholic Foundation, Petitioner
v.
Student Services Finance Committee, Respondent
2005
ASM SJ 16
JUDGMENT
Cite As: 2005
ASM SJ 16
Before Fox, CJ, Brusda and Tyack, S.JJ.
Mr. Kruse for Petitioner.
Chair Stone for Respondent.
CHIEF JUSTICE FOX delivers the
Unanimous Opinion of the Court.
NICHOLAS J. FOX, Chief
Justice. 1. On
I
2. The Court begins
its analysis by collectively examining the cut of $4,961 to the Lenten booklets
line item and the cut of $84 from the bulletins line item. Petitioner argues that the cuts were made
improperly, and cites some SSFC members referring to the religious aspect of
the Lenten Booklets and bulletins. These
items were generally characterized as something that a church would normally
do, or something that is so religious in nature that it should not be funded
through the segregated fee system.
3. Members of the
SSFC overlook a crucial tenet to the segregated fee system: the system is viewpoint neutral. This necessarily means that the state is not
speaking, and so excessive entanglement or endorsement of religion by the state
is not possible. As CHIEF JUSTICE FOX noted in his concurrence to UWRCF v. SSFC (I), 2005 ASM SJ 11 at
¶25, when the state speaks, it is free to tailor its message. Rust v.
Sullivan, 500
4. In Widmar, 454
5. This trend is
emphasized elsewhere in the caselaw of the Supreme Court. In Rosenberger,
the Court made this principle clear:
The
necessities of confining a forum to the limited and legitimate purposes for
which it was created may justify
the State in reserving it for certain groups or for the discussion of certain topics. Once it has opened
a limited forum, however, the State must respect the lawful boundaries it has itself set. The State may not
exclude speech where its distinction is
not "reasonable in light of the purpose served by the
forum," nor may it discriminate against
speech on the basis of its viewpoint.
The purpose of the forum is broadly defined: “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." Southworth. With such a broadly
defined forum, most speech and activity is necessarily relevant to the purpose
of the forum, including religious speech and religious activity.
6. The University or
SSFC cannot argue that funding religious activity would in some way endorse or
indoctrinate a certain religion. As the
Supreme Court noted in Mitchell v. Helms,
530
In
distinguishing between indoctrination that is attributable to the State and
indoctrination that is not, we have
consistently turned to the principle of neutrality. [If] the religious, irreligious, and areligious are all alike eligible for governmental
aid, no one would conclude that
any indoctrination that any particular recipient conducts has been done at the behest of the government. [If] the government, seeking to further some
legitimate secular purpose, offers
aid on the same terms, without regard to religion, to all who adequately further that purpose, then it
is fair to say that any aid going to a religious recipient only has the effect of furthering that secular
purpose.
The purpose of the funding forum is clearly secular, because
it is designed to enhance the educational experience of students on campus by
promoting a diversity of activities and viewpoints. The criteria for this forum are presumptively
facially viewpoint neutral. As long as
the criteria are themselves neutral and applied in a neutral manner, any
benefit or burden that religion receives from the forum is merely incidental. See also, Widmar,
supra; Rosenberger, supra; Committee for Public Education v. Nyquist,
413 U.S. 756, 771; Roemer v.
7. It is important to
note that in a viewpoint neutral forum, the University or the SSFC is not
advancing or inhibiting a certain viewpoint, which includes the advancement or
inhibition of religion as compared to non-religion. The forum has been created for all
viewpoints, and those groups which meet the criteria for funding must
necessarily receive that funding. This
does not mean, however, that a group will receive all of the funds it
requests. As this Court has noted in MCSC v. Otten, 2004 ASM SJ 8 at pg. 2,
“[I]t is [the] job of the SSFC to effectively distribute segregated fees.” This means that the SSFC will not rubberstamp
budgets but will determine if the funds requested are being utilized
efficiently by the organization.
8. Under Supreme
Court caselaw, religion is in fact a viewpoint (as opposed to being merely an
activity). Widmar held that religious worship and discussion “are forms of
speech and association protected by the First Amendment,” and Rosenberger affirmed that “[r]eligion
may be a vast area of inquiry, but it also provides […] a standpoint from which
a variety of subjects may be discussed and considered.” Indeed, religious speech and activity is not
only protected under the First Amendment, but it is also considered to be a
viewpoint.
9. In terms of the
SSFC’s cuts to Petitioner’s budget, it is clear that the SSFC’s cuts were based
on the religious nature of the booklets and bulletins. The SSFC cannot cut a line item merely
because the line item is religious in nature; this would be clear content and
viewpoint discrimination. From the
record it appears that the only motivation behind the cuts was that they were
likened to religious activities. But, as
already stated, just because an activity is religious does not exclude it from
potential funding, especially in a viewpoint neutral forum. Petitioner does not speak for the University
or the SSFC, and it cannot be argued that the University or SSFC is in any way
endorsing one religion over another, or religion over irreligion. There was no legal and acceptable alternative
presented in the record to reducing these line items.
10. It is also
important to note that, even if this Court accepts the University’s memo
regarding segregated fees, the memo itself specifically states,
“University/state funds cannot be used to directly support the operating costs
of a church or strictly church-related activity (e.g. worship service) if the
funds being transferred could be characterized as a donation to the church or
as being in lieu of other contributions to the church normally used to cover
similar costs.” Exhibit B, pg. 7. Here,
Petitioner’s organization is not a church, even though Petitioner’s
organization may engage in religious viewpoint expression and activities. The cut in regards to the Lenten Booklets and
Bulletins were also both premised on the fact that this type of activity is
something a church would do, and therefore cannot be funded under the memo’s
guidelines. However, since Petitioner’s
organization is not a church (as they self-profess), it appears that the memo
is not applicable in this case. Accordingly,
Judgment is entered for Petitioner on these counts.
II
11. The Court will
next address the collective cuts of $35,462 for building rent and $3,000 for
janitorial supplies and services. SSFC
contends that, per a memo released by the University administration, segregated
fees are not to be used for rent and general overhead or maintenance. Exhibit
B, pg. 7. The memo, originally
written on
University/state
funds cannot be used to directly support the operating costs of a church or strictly church-related activity (e.g.
worship service) if the funds being transferred could be characterized as a donation to the church or as being in lieu
of other contributions to the church
normally used to cover similar costs.
and later:
The
allocable portion of segregated fees is not available for such expenses such as
improvements, maintenance and
overhead expenses in non-university facilities, and should not be used to support improvements, maintenance or
overhead expenses in facilities that
are not owned, leased, or otherwise controlled by the university.
In its denial of the rent and janitorial supplies line
items, SSFC members invoked this email as a justified reason for denying these
line items.
12. The panel
believes that if the University administration wants to set limits for
expenditures in a neutral manner, it is free to do so. Should any organization feel that such
requirements are invalid, those organizations can take up the issue with the
University in the appropriate arenas.
13. However, the
panel also feels that there is a gross due process violation involved in the
denial of Petitioner’s rent request. The
most obvious issue present before the Court is that other organizations were
funded for rent and maintenance costs, such as MCSC, JCC, LIC, CFACT, TRC,
WISPIRG, WSUM, CWC, LGBTCC, PAVE, and SOL.
Exhibit B, pg. 25. These organizations were fully-funded for
their rent costs, and all received some level of maintenance costs.
14. The other
pressing issue in regards to these line items is the timing of the memo from
the University administration. SSFC
concedes that while the memo was written in 2004, the SSFC members this year
did not actually receive the memo until about one week prior to Petitioner’s
budget consideration. This timing is
problematic because it seriously undermines the intent of the memo: if the memo was intended to inform SSFC
members about segregated fee policy, then it should have been sent out at the
beginning of the funding cycle. The
memo’s release so close to the end of the budget cycle and so close to
Petitioner’s budget is immediately suspect.
15. Moreover, the
memo has forced a shift in the standard used.
While SSFC is correct in arguing that it needs to follow University
policy and Legal Services' interpretation of that policy (see DES v. Patzner et al., 2002 ASM SJ 7),
it appears from the record—since other organizations were funded for similar
requests—that the memo held Petitioner to a higher standard. SSFC should follow the advice of the
Administration; however, that advice should be applied equally to all groups,
not just to one or a select few. The
entire concept of viewpoint neutrality and due process is that valid, neutral
criteria will be applied consistently and equally to all groups seeking funding
under those criteria. The effect of this
memo is that the standard shifted, and Petitioner was held to a higher standard
than any other groups seeking a similar funding request. To ensure that the criteria were applied
equally to all organizations, the SSFC should have either reconsidered all
budgets with rent and maintenance funds, or should have applied the same standard
to Petitioner as they did to everyone else, despite the memo from the
University.
16. SSFC raised the
point that because Petitioner’s building is
17. The panel
believes that, since several organizations were funded for rent and janitorial
supplies without a University-signed lease, the same standard must be applied
to Petitioner in order for the neutral criteria to be applied equally to all
similarly-situated groups in accordance with the tenets of viewpoint neutrality
and due process. Since the memo has
created a shifting standard, a standard which was heightened and only applied
to Petitioner, Judgment is entered for Petitioner to these counts.
III
18. The Court next approaches
Petitioner's challenge to the cuts made to the Student Event Coordinators line
item. Petitioner alleges that the SSFC
and its members inappropriately took the religious activities of the
coordinators—which from the record appear to be rather minimal—into
consideration when determining the level of funding for this line item. In addition, Petitioner alleges that the SSFC
improperly used Petitioner's previous levels of funding to determine the level
of funding for this year.
19. In terms of the religious
activities in which the event coordinators may engage, the Court, per the
reasoning set forth in Part I, supra,
believes that if SSFC members take the religious nature of the activities into
account, they have violated the tenets of viewpoint neutrality. However, it is not clear from the record that
the members of the SSFC necessarily took that factor into consideration when
debating this line item. While several
members may have asked Petitioner what types of religious activities the
coordinators did, this is not dispositive to determine whether those questions
were motivated by hostility towards religion or specifically towards Petitioner. Indeed, the questions may have been
informational in nature so that SSFC members could better understand the role
of the event coordinator in Petitioner's organization.
20. In addition, it
appears that if SSFC members took a previous year's funding into account as the
sole reason for setting the next year's funding, this would also violate
viewpoint neutrality. In Southworth on remand, the Seventh
Circuit Court of Appeals ruled that the consideration of a previous year's
funding is not viewpoint neutral because such consideration would favor those
groups which have been in existence longer and, consequently, assumingly have a
more favored viewpoint.
21. This Court has
also noted, however, that a previous year's funding cannot be used as a floor
or ceiling for a budget. Recently in CFACT v. Stone, et al., 2005 ASM SJ 14
at ¶8, this Court affirmed that Representatives can question increases from a
previous year's budget because fiscal responsibility is the duty of the
SSFC. In CFACT v. Stone, et al., this Court noted that fiscal responsibility
is a neutral criterion (see also MCSC v.
Otten, 2004 ASM SJ 8; MCSC v.
Greenbaum, 2004 ASM SJ 9). If
Representatives question a year-to-year increase because of fiscal
responsibility concerns, then their concerns are legitimately grounded and
viewpoint neutral.
22. In the record
before the Court, it appears that Petitioner's argument about a previous year's
funding has no weight. Representatives
on the SSFC were concerned about whether a jump from two coordinators to nine
coordinators in one year was a fiscally responsible increase. It would of course be up to Petitioner to
justify the increase. Looking at fiscal
responsibility in funding increases from year-to-year is in line with the
requirements of viewpoint neutrality; solely using a previous year's funding as
a floor or ceiling is not viewpoint neutral, however.
23. The Court is
concerned, though, with the cut made by the SSFC for "fiscally
responsible" reasons. From the
record, it does appear the Petitioner would have been able to justify the
increase in funding for coordinator positions; however, this does not mean that
the SSFC must necessarily fully fund those positions. What is of concern for this Court is the
comparative funding of other groups in relation to Petitioner.
24. Upon the Court's
own motion, parties were asked to submit a brief post-hearing to specifically
address the event coordinator line item.
Petitioner notes that, compared to other groups that provide a
comparable amount of services and programming (regardless of viewpoint),
salaries for Petitioner were significantly cut.
In its Brief to the Court, Petitioner observes that many
organizations—including CWC, CCTAP, GUTS, JCC, LGBTCC, MEChA, PAVE, SOL, SLP,
TRC, and Student Radio—were all fully funded or nearly fully funded for their
salary line items, and yet Petitioner's line item was cut in half.
25. The Court
believes that, from the record, the SSFC did not adequately justify its cuts to
Petitioner's budget. While fiscal
responsibility from year-to-year is vital to the segregated fee system, that
responsibility must be applied equally to all groups. Petitioner's organization offers a comparable
degree of services and programming to that of other organizations, regardless
of viewpoint. Merely invoking fiscal
responsibility is not enough to justify a cut or increase; instead, the
invocation must be justified through further analysis of why the cut or
increase does not correlate with the requested amount. Increasing Petitioner's coordinator positions
may not be fiscally responsible because it does not correlate with an increase
in programming or services, but cutting the positions without adequate
justification beyond the invocation of "fiscal responsibility" is
insufficient. Judgment is entered for
Petitioner on this count.
IV
26. Finally, the
Court looks at the final challenge against the SSFC’s cut of $227 for the
Advertising Small Group Events line item.
Minimal evidence was presented to the Court to support Petitioner’s
claim. In fact, the only citation
Petitioner gives the Court is the Safe Harbor Statement made by SSFC
Representative Edwards. While Rep.
Edwards’
V
27. In this Court’s
caselaw, any improper or illegal action taken by a corporate body of ASM is by
default null and void. UWRCF v. SSFC (I), 2005 ASM SJ 10; LIC v. Werner Appeal, 2003 ASM SJ 18. It is clear to the panel that several cuts
made by the SSFC as a corporate body were improper, and therefore must be
nullified. ASM Bylaws Section 2.01(C)(II).
These cuts include the following:
Rent, Janitorial Supplies, Lenten Booklets, and Bulletins.
28. From the record
presented to the Court, there is not clear and convincing evidence that the
corporate body of SSFC acted improperly when cutting the Student Event
Coordinators line item and the Advertising for Small Group Events line
item. Consistent with this Court’s
precedent, those cuts are to stand as valid.
CFACT v. Stone et al., 2005
ASM SJ 14; CFACT v. Kiernoziak Appeal,
2005 ASM SJ 1; MCSC v. Otten, 2005
ASM SJ 8, Order Denying Dismissal,
2004 SJ Ord.8; Nichols v. Reyes, 2002
ASM SJ 8.
29. As a final
remedy, Petitioner asks this Court to impose an injunction on the SSFC from
ever considering the organization’s viewpoint or religious purpose. This seems logical under the mandates of
viewpoint neutrality. However, it is
important to note that the established process for eligibility, funding,
appeals, and review is what makes the segregated fee distribution system
viewpoint neutral. If members of the
SSFC or the Committee as a whole violate the tenets of viewpoint neutrality,
there is an appeals process in place.
Petitioner, or any other group which believes it was harmed, can ask for
redress though this system. While the
Court is disinclined to acknowledge any historical or possible future
discrimination at this juncture, it does understand Petitioner’s concern. However, the funding distribution
process—including appeals to this Court—is a process that has been deemed viewpoint
neutral. Southworth v. Board of Regents, 7th Circuit Court of
Appeals (No. 03-2314). The Court is
disinclined to impose an injunction upon the SSFC when the tenets of viewpoint
neutrality and this Court’s own caselaw serve as guides as to what the SSFC can
and cannot do. Petitioner must use the
system if it feels it has been discriminated against.
Wherefore, for the reasons stated herein:
IT IS ORDERED that Judgment be ENTERED for Petitioner in regards
to the SSFC’s cuts to the Lenten Booklet, Bulletins, Rent, Janitorial Supplies
and Services, and Student Event Coordinators;
IT IS FURTHER ORDERED that the Funding Decision of the SSFC
in regards to the Lenten Booklets, Bulletins, Rent, Janitorial Supplies and
Services, and Student Event Coordinators is REVERSED;
IT IS FURTHERED ORDERED that the SSFC reinstate the
following amounts to Petitioner’s budget:
1. $4,961.00 for Lenten Booklets.
2. $84.00 for Bulletins.
3. $35,462.00 for Rent.
4. $3,000.00 for Janitorial Supplies
5. $15,262.50 for Student Event Coordinators;
IT IS FURTHER ORDERED that Judgment be ENTERED for
Respondent in regards to the SSFC’s cuts to the Advertising for Small Group
Events;
IT IS FURTHER ORDERED that the SSFC forward Petitioner’s
budget as amended per the Court’s opinion on to the ASM Student Council;
IT IS FURTHER ORDERED that the ASM Student Council will
consider Petitioner’s budget at its next regular business meeting in accordance
with all procedures for such consideration.
By the Student Judiciary,
IT IS SO ORDERED.
Nicholas J.
Fox, Chief Justice
Shannon
Brusda, Associate Justice
Joshua
Tyack, Associate Justice
Published:
16 December 2005, 6.00PM
Attest: /s/ NJF