In-Depth Analysis of Draft
UC Policies on Campus Activities, Organizations, and
Student Governments
Contact ucfreespeech@hotmail.com with
questions.
CONTENTS
BACKGROUND
The University of California,
the State and the larger academic community have long recognized the significant
educational benefits derived from extra-curricular student activities. As a result, University of California
students are able to take advantage of an enormous array of educational
opportunities outside of the classroom.
In March of 2000, the U.S.
Supreme Court, made a unanimous, landmark decision in the
Southworth case that affirmed the
importance and appropriateness of mandatory fee funding of a broad range of
student activities to further the
educational mission of the University.
In the wake of the landmark
decision by the Supreme Court and in the proud tradition of students providing
themselves with extra-curricular educational opportunities, we, the undersigned
student and community leaders believe that the University of California should
maintain a simple, legal, and open student fee policy
that:
I.
Allows funding of all
activities that are consistent with the University's educational mission,
including activities that occur both on and off campus, activities that engage
in public policy matters, and activities that promote a broad range of issues
and viewpoints
II.
Maintains the historical
role of student governments in allocating fee funds, and with the full
constitutional protections afforded to campus activities in the
Southworth decision
III.
Retains the viewpoint
neutral system of allocating funds, with the understanding
that:
a. No funding decision can be
based upon the views of the group;
b. Funding levels may be
significantly different for different groups, but differences cannot be because
of the views expressed by any of the groups;
c. Funding may not be solely
contingent upon demonstrating majority support, and;
d. Such a system is only
necessary under a mandatory fee system, should a pro-rata refund system be
implemented, a students first amendment rights are protected and therefore a
viewpoint neutral system is unnecessary.
IV.
Allows referenda to be
used to determine allocation levels for Registered Student Organizations, so
long as the following criteria are met:
a. Referenda may not be used to determine an organization's eligibility for
funding
b. Referenda may be used to determine funding levels for an organization
already deemed eligible for funding by the appointed student government or
administrative committee responsible for such decisions;
c. Referenda may not be the only means available to a Registered Student
Organization for determining its allocation level;
d. Referenda may not be a requirement for determining a Registered Student
Organization's allocation level. "
The draft policy allows
Registered Campus Organizations (RCOs) to engage in a broad range of activities,
acknowledges the educational benefit of off-campus student activities and
organizations and allows such activities to be funded, and has a relatively
simple and clear definition of viewpoint neutrality.
However, we are concerned that
the policy places unnecessary restrictions on student government activities that
conflict with Southworth and the
University's educational mission and prohibits students from voting in campus
referenda to allocate funds to specific student
activities.
SECTION 60.00: POLICY ON STUDENT
GOVERNMENTS
63.00, 64.00, 64.02,
66.00
The policy allows student
governments to "address and take positions on public issues" (63.00). The policy also allows student
governments to allocate mandatory student fees towards student government
efforts directed at "lobbying and other public-policy-oriented activities"
(64.00). However, the following
stipulations apply:
7 All student government activities must be on "student
related matters" (64.00)
7 With the exception of lobbying (which is directed at
public officials external to the University), all student government activities
can only be directed to a "University audience". In other words, student governments
cannot conduct any public education activities towards the general citizen
population. (64.02)
The stipulations
apply to student governments only.
They do not apply to Registered Campus Organizations. (This is not stated outright, but by
implication, since these stipulations address student government activities and
do not exist in sections 70 or 80).
These
stipulations are extraordinarily problematic. They undermine the educational value of
student government, and - in contrast with the University's argument - are
legally unnecessary.
First, on the merits: the point of getting involved in any
extracurricular activity is to take one's education beyond the classroom and
apply it in a real world setting.
This is the fundamental principle behind all kinds of activities, whether
through RCOs or student governments.
The University's stipulations undermine the educational benefits of
student government in the following ways:
Frankly, we would have hoped
that the University would be excited that student governments, on their own
initiative, want to get actively involved in government and public policy
debates on a wide range of issues, using a wide range of tools, such as ballot
measures, especially given how the administration has actively promoted student
participation in government.
It is clear from the
University's position that the University is not questioning the educational
value of the activities in question.
The University is continuing to allow RCOs to spend mandatory student
activity dollars on the aforementioned activities, which implies that the
University recognizes that such activities have educational importance. The US Supreme Court ruled in
Southworth vs. Board of Regents of the University of Wisconsin (2000)
that Universities have broad latitude
to determine what kinds of activities contribute to the University's mission,
and subsequently, what kinds of activities may be funded via mandatory
activities fees.
However, the University argues
that the only reason why student government activities must be restricted - in
contrast to RCOs is that student governments - unlike RCOs - are "official units" of the University,
and subject to state law and University policy that says that University dollars
can't be used on ballot measures, and may only lobby on issues directly
affecting higher education issues.
Indeed, the question is indeed
solely about whether or not the student government's unit status prevents the
student government from receiving the same constitutional protections under
Southworth as RCOs. We find this unconvincing, for three
reasons:
Indeed, so long as the
activities of student governments are funded in the same viewpoint neutral
process as RCOs are funded, as per the viewpoint neutrality requirements of
Southworth, we fail to see why
student governments would not receive the same constitutional protections under
Southworth as RCOs.
Given the lack of a legal
reason to impose such restrictions on students government, and considering the
considerable educational benefits that student government creates for the
institution. This is of grave
importance to us and we urge you to reconsider your position on this matter.
67.10 Transfer of Compulsory Campus-based
Student Fees to Non-University Entities
Our comments on
this section also apply to sections 87.00 and 70.90
The intent of
this section, which is to acknowledge the educational importance and to allow
the funding of "off-campus" activities and organizations, is commendable. We
believe this clarifies for the campuses that "non-University" organizations are
an appropriate and beneficial vehicle for student governments and RCOs to
effectively engage in the pursuit of the University's mission. In particular, we are optimistic that
these sections will help clarify past confusion over the funding of the United
States Student Association.
However, there
are three stipulations in this section that are
problematic:
67.10
Stipulation #1
The first
problematic stipulation is the passage that reads: "The referendum process as
set forth in Section 82.00 of these Policies shall not be available either to
establish a new fee, or to lock in an increase to an existing fee, for the
purpose of supporting any non-University organization, program, or
activity. (See also Sections
70.90 and 87.00 of these Policies)."
First, this
passage is redundant, as sections 86.12 and 70.81 has already make it abundantly
clear that referendum may not be used to earmark funds for specific student
programs. For this reason alone, it
should be taken out.
Second, even if
the University takes our request to lift the referendum ban, this passage (which
appears only in 67.10) undermines the intent of sections 87.00, 70.90, and
67.10, which is to acknowledge the educational benefit of and allow the funding
of "non-University organizations".
The University
has made it clear on a number of occasions that off campus activities and
organizations can have just as much educational benefit as on-campus activities,
which is the reason why the new policies allow the funding of such programs
(such as USSA). This passage
immediately undermines that entire premise by rendering such activities wholly
suspect.
It is unclear
what the reason would be to close off the mechanism to the funding of such
programs should the referendum mechanism be reinstated.
Based on prior
correspondence with the University, the only thing we could imagine the
University would be concerned about is that off-campus groups will not be
subject to adequate levels of fiscal accountability if they are allowed to be
funded via referendum instead of simply through student government
decisions. If this is indeed the
University's concern, then we think it can be addressed without prohibiting
students from funding off-campus groups via referendum. Instead, we propose including specific,
binding reporting requirements for off-campus organizations that are funded by
student fees - when they are funded either via a student government decision or
referendum.
Such requirements
are already in place at the seven UC campuses with CALPIRG chapters, and have
worked quite well in ensuring that CALPIRG's funds are being spent in accordance
with the University's mission, University policy and the law. We think that the institution of such
reporting requirements will give the University ample information and authority
to ensure the accountability of all such funds - whether allocated via
referendum or direct student government allocation. We would further advise that such
reporting be made directly to the student government, and that student
government retain the authority to terminate such an organization's funding if
the requirements are not met.
Bottom line, this
passage should be rewritten to better reflect the University's intent without
throwing the baby out with the bathwater.
67.10
Stipulation #2
The second stipulation in
question is, "Compulsory campus-based fees may not otherwise be expended by a
student government, RCO, or other campus entity in support of, or be otherwise
transferred to, a non-University organization, program, or activity, except in
payment of goods and services directly necessary to the operation of that
student government, RCO, or other campus entity, its programs or activities."
Based on our conversations with
your office, we have understood that we are agreed that the intent of this
language is to ensure that allocations to such organizations are made with the
intent of pursuing the University's educational mission and that allocations to
such organizations are not needlessly extravagant. We believe that we have agreed that the
intent of this language is not to
exclude funding activities that occur off-campus, or the funding of professional
research and advocacy staff. We
believe that we have agreed that funding such activities is extremely important
in order to allow students to fully and effectively participate in state and
federal public policy making processes.
Our understanding is that the
following scenarios would be allowable under these
guidelines:
By way of background, the
United States Student Association (USSA) is set up to be a vehicle for students
to engage in and have an impact on federal public policy decisions. USSA is funded by student governments
from around the country, and controlled by a Board of Directors made up of
representatives from each campus that funds USSA. Funds are used primarily to hire a staff
of professionals based in Washington, DC.
These professionals - organizers and issue experts - work directly with
students to develop and execute USSA's program. Staff work with students to conduct and
distribute research on a variety of national public policy matters to students
and public officials, and provide campus-based skills trainings and phone
consultations for contributing campuses.
Scenario #1: A student
government may directly allocate funds to USSA to support the activities
outlined above, so long as the allocation does not exceed USSA's basic
membership level, and as long as the allocation is made in a viewpoint neutral
manner as outlined in section 86 of the draft policies. Because the hypothetical allocation was
made in a viewpoint neutral manner, USSA's activities do not need to comply with
the limitations laid out in section 64.00 of the draft policies.
Scenario #2: If students on a campus set up a local USSA chapter as
a Registered Campus Organization, and the RCO requested funds from the student
government to be used for both local activities (such as educational forums,
letter writing drives, etc), as well as membership dues to USSA to support the
activities outlined above, the student government may make such an allocation to
the RCO, so long as the allocation is made in a viewpoint neutral manner as
outlined in section 86 of the draft policies, and the RCO agreed to reallocate
no more than USSA's basic membership level as membership dues. For the same reasons outlined in the
previous example, USSA's activities in this instance do not need to comply with
the limitations laid out in section 64.00 of the draft policies.
67.10
Stipulation #3
The third passage
in question is the one requiring off-campus dues to be restricted to an
organization's basic membership level.
"Such fees may
also be expended in payment of applicable dues necessary to sustain membership
by that student government in national and other regional non-University
associations at the basic level established by such associations, so long as the
level of any such assessment is in line with what is assessed similar student
organizations at other institutions comparable in size and nature to the
University as a requirement of basic membership."
We have little
issue with the spirit of this requirement, which is to ensure that there is some
level of consistency in the formula that campuses use to fund such
organizations. However, we believe
this requirement is essentially unworkable so long as the University insists on
prohibiting referendum to be used to set specific allocation levels for specific
student programs. As explained in
our comments in sections 86.12 and 70.81, the University's referendum proposal
will result in inadequate funds for student programs. To the extent that any imbalances in
funding of off campus groups from campus to campus exist (for example, with
UCSA), it is almost always a result of inadequate funds rather than an
indication of the level of support for the organization on campus. Requiring absolute consistency in
funding levels for off-campus groups while denying students a meaningful
mechanism to ensure adequate funds for student organizations will set the system
up for failure.
SECTION 70:
POLICY ON REGISTERED CAMPUS
ORGANIZATIONS
70.10
"Campuses may
charge such organizations a reasonable fee as a requirement of their
registration to recover a part of the administrative costs associated with their
support."
We assume the intent of this language is
identical to the language in the 1992 University of California Guidelines for Implementing a
Voluntary Student Fee Pledge System, which requires that student organizations
pay the "actual costs" associated with the collection of the student activities
fee. To be clear, the intent of
that language is to ensure that student organizations pay the actual additional
costs that are incurred as a result of the collection and maintenance of the
student activities fee that the University wouldn't otherwise incur as a result
of having student activities
This is an important principle that has been around
since extracurricular activities began to flourish in their current form thirty
years ago. Extracurricular
activities, in essence, fill a void in the University's curriculum at no
additional cost to the University because they are funded and directed entirely
by students in a decentralized manner.
Therefore, student organizations should not have to pay for any of the
overhead costs associated with the operation of the University's term bill; only
the actual additional costs.
This language should be made consistent with the actual
costs language in the Pledge Fee Guidelines; we fear that otherwise, there will
be confusion on the campuses.
70.20
70.81
Our comments on these two sections are included below.
70.90
See our comments on section 67.10.
SECTION 80.00: POLICY ON
COMPULSORY CAMPUS-BASED STUDENT FEES
86.11,
70.20
Last sentence: "In addition, expenditures relating to particular
programs and activities of Registered Campus Organizations that occur off-campus
and that are funded from such fees must be under the direct control of
University of California students."
We assume that
this means that the decision by an RCO to spend its funds on activities and
programs that occur off-campus must be made by UC students. In other words, if an RCO chose to
reallocate a portion of its funds towards USSA dues, for example, this would be
OK, so long as the decision to do so was made by UC students participating in
the RCO. In this example, this does
not mean that USSA must have UC students on its board exclusively as a condition
of the reallocation. Please let us
know if our understanding of this is incorrect.
Assuming we have
this correct, isn't it the case that this rule applies to all spending decisions
made by RCO and not just "off-campus" expenditures? This sentence should be broadened to
include all RCO expenditure decisions, for two reasons: a. its more true to say
all expenditures must be decided in this manner rather than simply "off-campus"
expenditures, and b. Unnecessarily singling out "off-campus" activities sends a
message to the campuses that such activities are suspect or have inferior
educational value to an campus activities.
Such a message, whether deliberate or accidental, runs counter to the
University's mission and would have a chilling effect on valuable student
activities.
86.12,
70.81
"The referendum process as set forth in Section 82.00 of these Policies above shall not be accessible to Registered Campus Organizations or other student groups except for student governments. Any support for Registered Campus Organizations or other student groups other than student governments from compulsory campus-based student fees must be in the form of a reallocation from a student government or other appropriate campus entity to the Registered Campus Organization or other student group, on a viewpoint-neutral basis "
This is highly
problematic for practical reasons and overly restrictive from a legal
standpoint.
From a practical
standpoint: The University's
mission is served most effectively when extracurricular activities that meet
eligibility criteria have enough funds to execute their activities. There are two ways in which
the University could chose to ensure adequate funding for this
forum:
The University's proposal to
allow the referendum mechanism to be used only to raise or lower the level of
the general activities fee, and to prohibit students from voting to increase the
activities fee and earmark funds to particular student programs will have the
practical effect of diminishing funds for all student programs and compromising
the educational effectiveness of the activities fee forum.
Additionally, the dynamic
created by this provision will also render the basic membership provisions
outlined in sections 87.00, 70.90, and 67.10
unworkable (see our comments on sections
67.10).
From a legal standpoint: We understand the University's concern
about the viewpoint neutrality problems that referendum can potentially
create. In Southworth,
the the Court expressed concern that
using referendum to decide whether "a given RSO may be funded or defunded"
because it is "unclear to us what protection, if any, there is for viewpoint
neutrality in this part of the process."
The Court continued, "[t]o the extent the referendum substitutes majority
determinations for viewpoint neutrality it would undermine the constitutional
protection the program requires" because the "whole theory of viewpoint
neutrality is that minority views are treated with the same respect as majority
views. Access to a public forum,
for instance, does not depend on majoritarian consent."
In other words, the Court makes
it clear that the level majority support for a student program cannot be used to
block a program's access or eligibility for funds. Practically speaking, this means that
referendum cannot be used to determine an organization's eligibility for funds,
cannot be a condition of receiving funds in any way, and cannot be used to
defund or reduce funds for a student program.
However, we think, and many
legal scholars agree, that there is a difference between
eligibility for funds, and the
actual allocation level of funds
that an organization receives.
While relative support for a
program should never be used to determine an organization's eligibility for
funds, it is entirely appropriate to take relative support and other factors
(membership size, etc) into consideration when setting allocation levels for
student organizations. To do
otherwise is to risk providing some student organizations with funds out of
proportion to the level of student support on campus, at which point members of
the majority could claim viewpoint infringement.
Therefore, referendum can be a
wholly legitimate part of a viewpoint neutral fee allocation process, so long
as: a. referendum is never used to determine a group's eligibility for funds, b.
referendum is only used to set allocation levels for student groups who have
been deemed eligible by the appropriate body, c. referendum is never a
requirement for student organizations to set their allocation levels, and d.
referendum is never used to reduce funds for or defund an
organization.
If the University is not
completely comfortable proceeding solely with these protections, the University
could, as an added measure, render the activities fee non-mandatory by allowing
a wholesale refund mechanism, thereby bypassing the Court's viewpoint neutrality
requirement. The Legislative
Council of California has already endorsed this
interpretation.
The bottom line is that if the
University is committed to ensuring a viable activities fee forum, it must
either continue to allow students the option to vote to set allocation levels
for all student programs or move to a fee system akin to Oregon or
Wisconsin. However, the current
proposal is unacceptable.
Finally, note our comments on
the passage at the end of section 67.10 that prohibit the referendum mechanism
to be used for off-campus groups.
This passage is redundant, as sections 86.12
and 70.81 already made it abundantly
clear that referendum may not be used to earmark funds for specific student
programs.
86.20 The
University's Educational Purposes
"The University's educational purposes are served when reallocations by a student government or other campus entity of compulsory campus-based student fees to support Registered Campus Organizations and Registered Campus Organization-related programs and activities are made: (1) to provide opportunities for the educational benefits and personal and social enrichment that derive from participation in extracurricular programs and activities; and (2) to stimulate on-campus discussion and debate on a wide range of issues from a variety of viewpoints."
While this
language is not problematic per se, it is excessively complicated. Our understanding of the intent of this
section is to say, in essence that RCO activities must pursue, in some way, some
aspect of the University's teaching, research and service missions. Assuming this is correct, then we think
the exact teaching, research and service terminology should be used, so not to
give the impression that there is one definition of the University's mission for
RCOs, and another for the rest of the University. We would be fine if the University wants
to provide examples of what kinds of activities fall into the University's
teaching, research and service missions, but such examples should follow a basic
reiteration of the University's missions, and of course should simply be
examples rather than an exclusive list..
"Consistent
with the above purposes, such reallocations shall be to support either the
general organizational expenses of Registered Campus Organizations and
Registered-Campus- Organization-related programs and activities or their
associated communicative purposes. Allocation decisions in connection with
providing such support must be made without regard to the viewpoint of a
particular Registered Campus Organization or
Registered-Campus-Organization-related program or activity and be balanced in
relation to the support provided to other Registered Campus Organizations or
Registered-Campus-Organization-related
programs and activities in similar circumstances."
We think this is
a particularly clear and simple definition of viewpoint neutrality, and commend
the University for its efforts to come up with such
language.
86.30-86.40
Similarly, we think the
expanded review process to ensure viewpoint neutrality is clear, simple and
effective.
87.00 Transfer of Compulsory Campus-based
Student Fees to Non-University Entities
See our comments
on section 67.10.
SECTION
90.00: POLICY ON THE CAMPUS ASSESSMENT OF
VOLUNTARY STUDENT CONTRIBUTIONS TO
STUDENT GOVERNMENTS AND REGISTERED CAMPUS ORGANIZATIONS
Generally, we want to echo
the protests of the student governments and student organizations who have
preceded us that a voluntary fee or pledge system is simply not a viable way to
support student organizations, and that no student organization should be put in
a position to have to raise funds in this manner.
That said, we have two
comments:
90.12
"Require either a student
referendum (conducted under the same criteria as for compulsory campus-based
student fees as set forth in Section 84.00 of these Policies) or, subject to the
concurrence of the Chancellor or Chancellor's delegatee, a duly adopted
resolution of student government, to authorize use of the student registration
process or other formal campus assessment process for the collection of
voluntary contributions;"
We support the idea that
referendum should not be a sole condition of establishing a voluntary fee, since
payment of the fee is voluntary and a referendum should only be held in order
for the student body to make a collective decision to tax itself. On the other hand, we understand that a
voluntary fee system can cause the University to incur some additional costs,
and therefore, the University needs some assurance that there is a basic level
of campus support that justifies the collection of the voluntary fee. Therefore, we are in support of the idea
of establishing some kind of alternative criteria for student organizations to
meet in order to be funded through a voluntary fee.
We think the proposed
alternative to allow a student organization to be funded via a voluntary
fee "subject to the concurrence of the Chancellor or
Chancellor's delegatee, a duly adopted resolution of student
government" is workable if the fee is
purely voluntary semester to semester.
However, we think
that if a student organization opts to adopt the pledge mechanism outlined in
the 1992 University of California Guidelines for Implementing a Voluntary
Student Fee Pledge System, then we think that the sole criteria for implementing
the pledge system should be if the student organization can get a minimum
threshold of students pledging to pay the pledge fee by the end of the first
academic year of the student organization's existence. In most cases where CALPIRG chapters
have been set up, this minimum threshold was 10% in the first year and 20% in
the second year. The reason for
this is that getting a full 20% of the
campus to pledge to pay a voluntary fee is equivalent to getting a majority of
40% of the campus to vote "Yes" on the organization's funding, which is a far
stronger mandate than simply getting the required majority of 20% of the campus
to vote "Yes" on the issue. The
pledge mandate is even stronger than the numbers reveal because the 20% pledge
threshold is made of people actually committing themselves to paying the fee
verses simply voting for someone else to pay the fee.
Needless to say, requiring a
referendum or a student government resolution on top of the pledging requirement
serves no additional purpose except to put a student organization through
unnecessary obstacles. We're glad
that the referendum requirement is being lifted for all kinds of voluntary fees,
and we ask that - for organizations opting for the pledge system - that the sole
requirement be for the organization to gather a minimum number of pledges of
support, which we think that you will agree, is a far more specific and less
arbitrary means to gauge the level of student support for a voluntary fee-funded
program than student government or Chancellor approval.
90.13
"Require that
the costs of collection of voluntary contributions be borne by the student
government or the Registered Campus Organization; and"
As noted in our
comments in section 70.10, this language should be made consistent with the
"actual costs" language agreed upon in the 1992 University of California
Guidelines for Implementing a Voluntary Student Fee Pledge System, which
specifies that student organizations should be required to cover the "actual
costs" of the collection of the voluntary fee, meaning the actual, additional
costs incurred from collecting the voluntary fee that would not otherwise be
incurred were the student organization not to exist. We believe this is important so that
there is no confusion on the campuses.