01-1912 Fry v. Board of Regents of the University of Wisconsin System

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“[T]he Supreme Court has made clear that when a decisionmaker has unbridled discretion there are two risks: First, the risk of self-censorship, where the plaintiff may edit his own viewpoint or the content of his speech to avoid governmental censorship; and second, the risk that the decisionmaker will use its unduly broad discretion to favor or disfavor speech based on its viewpoint or content, and that without standards to guide the official’s decision an as-applied challenge will be ineffective to ferret out viewpoint discrimination. Both of these risks threaten viewpoint neutrality. See, e.g., Thomas, 534 U.S. at __, 122 S.Ct. at 780 (‘Where the licensing official enjoys unduly broad discretion in determining whether to grant or deny a permit, there is a risk that he will favor or disfavor speech based on its content.’) (emphasis added); Lakewood, 486 U.S. at 763-64 (‘[W]ithout standards governing the exercise of discretion, a government official may decide who may speak and who may not based on the . . . viewpoint of the speaker.’) (emphasis added). Given that the risks which the Supreme Court sought to protect against in adopting the unbridled discretion standard are risks to the constitutional mandate of viewpoint neutrality, we conclude that the prohibition against unbridled discretion is a component of the viewpoint-neutrality requirement.

“[W]hile this case involves a challenge to a mandatory fee system, as opposed to a licensing or permit ordinance, the Constitution nonetheless prohibits a mandatory fee system from granting unbridled discretion to the decisionmaker. A straightforward application of those principles to the case at hand, then, demonstrates that the plaintiffs have standing to facially challenge the mandatory fee system on the grounds that it grants the student government unbridled discretion; just as a plaintiff has standing to present a facial challenge to a licensing statute without applying for a license, see supra at 14-21, so too do these students have standing to present a facial challenge to the University’s mandatory fee system without applying for, or being denied, funding. Accordingly, we conclude that the students have standing to challenge the University’s alleged failure to conform with the constitutional requirement of viewpoint neutrality by granting unbridled discretion to those making the funding decisions.

“The numerous and specific Funding Standards detailed above greatly limit the discretion of the ASM Finance Committee and the SSFC. First, the University has an expressed policy prohibiting viewpoint discrimination and requiring conformity with the constitutional requirements set forth in Southworth. The University seeks to assure compliance with this policy by requiring ASM officials to take an oath that they will abide by the principle of viewpoint neutrality. And, as noted, the Funding Standards provide for the removal of any ASM official who violates this constitutional mandate. As detailed above, the Funding Standards also set forth specific, narrowly drawn and clear criteria to guide the student government in their funding decisions as to GSSF grants and SGAF operations and event grants. (Travel grants are another matter, see infra at 49-50.) Together, these Funding Standards greatly limit the student government’s discretion. The Funding Standards further limit the ASM Finance Committee and SSFC’s discretion and their ability to use that discretion to discriminate on the basis of viewpoint by adopting detailed procedural requirements for the hearings. For example, the Funding Standards require notice of hearings, and provide for public hearings. These requirements will thwart any attempt at closed-door stealth viewpoint discrimination. The requirement that hearings be recorded also minimizes the ability of the SSFC and the ASM Finance Committee to use their discretion in an improper way by documenting the hearings; the recordings will memorialize the questions posed and the RSO’s various responses, and allow for those not present at the hearing to determine whether the student government raised as an issue the content or viewpoint of the RSO, or whether the viewpoint of the RSO influenced the funding decision. The requirement that the student government disclose all funding documents further checks its discretion, as does the University’s policy requiring the student government to provide, upon request, a written statement of reasons for the denial of funding. Additionally, the University adopted specific deadlines for funding decisions, created a very comprehensive appeals process, and established prompt deadlines for the appeals. These deadlines and the appeals process also limit the SSFC and ASM Finance Committee’s discretion and prevent the improper consideration of viewpoint: The deadlines assure that the SSFC and ASM Finance Committee will not delay a decision until the RSO decides to self-censor itself, or until the proposed activity is no longer viable; and the appeals process checks the student government’s discretion first by serving as a reminder to the student government that their funding decision will be scrutinized, and second by providing a review of that decision to assure viewpoint neutrality. Moreover, one particular aspect of the review process serves as a convincing protection of viewpoint neutrality. In reviewing funding decisions, the appeals procedures require the Student Council to compare the grant amounts the SSFC and the ASM Finance Committee allocated to various RSOs to determine whether similar RSO applications were treated equally. By comparing the funding decisions, the Student Council can determine whether the student government, while purporting to apply the Funding Standards in a viewpoint-neutral way, nonetheless treated similar RSOs with varying viewpoints differently. The Student Council can then rectify any differing treatment on appeal.

“While these Funding Standards greatly limited the discretion of the SSFC, and for the most part the ASM Finance Committee, in adopting Rules of Procedure, the ASM Finance Committee did not provide any criteria governing the award of travel grants. Without these guidelines, the other aspects of the Funding Standards cannot fully operate to protect viewpoint neutrality. In the absence of criteria for issuing travel grants, it will be difficult if not impossible for the University’s appeals process to determine whether the ASM Finance Committee reached the proper funding conclusion. Similarly, without knowing the standards being applied to travel grants, a federal court would be unable to determine whether the ASM Finance Committee’s discretion was exercised to discriminate against groups with unpopular viewpoints. Therefore, without these additional standards, we cannot conclude that the ASM Finance Committee’s discretion is properly limited as to the granting of travel grants. Accordingly, we hold that the mandatory fee system unconstitutionally grants the ASM Finance Committee unbridled discretion for awarding travel grants to organizations which engage in speech and expressive activities. Therefore, until such standards are adopted, the University cannot use the mandatory fees of objecting students for such travel grants.

“While we conclude that the University’s Funding Standards, as a whole, substantially limit the discretion of the SSFC and the ASM Finance Committee as to GSSF grants and SGAF operation and event grants, a few of the criteria relied upon by the University are related to the RSO’s speech or viewpoint, and thus are improperly considered by the student government.

“Consideration of the length of time that an RSO has been in existence and the amount of funding the RSO received in prior years cannot be said to be unrelated to viewpoint. First, until recently, the University prohibited funding of ‘[a]ctivities which [were] politically partisan or religious in nature.’ Thus, organizations espousing partisan political or religious viewpoints ar
e at a funding disadvantage compared to other viewpoints. Second, until recently there were no procedures designed to assure the distribution of funds in a viewpoint-neutral manner. Thus, to the extent that the current funding decisions are based on the length of time an organization has been in existence, or the amount of funding that the RSO received in the past, the current decisions depend in part on viewpoint-based decisions of the past.”

Affirmed in part, and reversed in part.

Appeal from the United States District Court for the Western District of Wisconsin, Shabaz, J., Manion, J.