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Last week, the United States Court of Appeals for the Second Circuit , holding that the student government of the State University of New York at Albany (SUNY-Albany) cannot base allocation decisions about mandatory student activity fees upon the outcomes of student referenda, even when such referenda are merely “advisory.”

Specifically, the Second Circuit ruled that SUNY-Albany’s Student Association (SA) violated the First Amendment by conducting advisory referenda votes of the student body to determine student support for particular funding decisions for certain registered student groups. The court held that even though the SA considered such votes to be merely “advisory” because they were free to disregard the outcome of the referenda as they saw fit, the practice “nevertheless injects a substantial risk of undetectable viewpoint discrimination into the allocation process,” in violation of the First Amendment.

Plaintiffs Eric Amidon and Winston Brownlow, former SUNY-Albany students, brought the challenge to the funding decisions of SUNY-Albany’s SA in March 2004. Amidon and Brownlow’s suit was motivated by what they perceived to be the “preferential treatment” bestowed by the SA on the New York Public Interest Research Group (NYPIRG), a registered student organization branch of a statewide non-profit organization by the same name. (NYPIRG was granted permission to intervene and join the proceedings as a defendant after determining that Amidon and Brownlow’s suit, if successful, would result in a substantial loss of funds.) Every four years, the SA conducted an advisory referendum on NYPIRG’s student activity fee funding, and in 2003, students approved a referendum subsequently passed by the SA that allocated NYPIRG five dollars out of each student’s mandatory $80 fee. Amidon and Brownlow accused NYPIRG of possessing a “liberal agenda,” despite the group’s stated non-partisanship, and attempted to secure equal funding for a “counter” conservative group they founded, the College Action Leadership League of New York (CALL-NY). When the SA voted against submitting a parallel CALL-NY funding referendum to the student body, Amidon and Brownlow brought suit.

In upholding the district court’s ruling, the Second Circuit relied in part on the Supreme Court’s holding in Board of Regents of the University of Wisconsin v. Southworth, 529 U.S. 217, 222-23 (2000) that mandatory student activity fee funds must be disbursed without respect to the viewpoint of the student organizations being funded. While the Supreme Court did not directly determine whether the use of referenda would violate the First Amendment in Southworth, the Second Circuit determined here that “[w]hile a decision maker is free to disregard a viewpoint-discriminatory, advisory referendum, this practice nevertheless injects a substantial risk of undetectable viewpoint discrimination into the allocation process.” The Second Circuit further held that the SA’s use of referenda meant that “any contrary or minority view is at a disadvantage” because the vote necessarily “reflects an aggregation of the student body’s agreement with or valuation of the message” presented by the student organization in question.

It is as yet uncertain whether NYPIRG and the SA will appeal the ruling. Stay tuned to The Torch for further developments.