Collegians for a Constructive Tomorrow-Madison v. Regents of the Univ. of Wisconsin System

• Citation: 820 F.Supp.2d 932,277 Ed. Law Rep. 1084
• Decision Date: 26 October 2011
• Docket Number: Case No. 09–C–0514.
• Parties: COLLEGIANS FOR A CONSTRUCTIVE TOMORROW–MADISON, Plaintiff, v. The REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM, et al., Defendants.
• Court: U.S. District Court — Western District of Wisconsin

277 Ed. Law Rep. 1084

820 F.Supp.2d 932

COLLEGIANS FOR A CONSTRUCTIVE TOMORROW–MADISON, Plaintiff,

v.The REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM, et al., Defendants.

Case No. 09–C–0514.

United States District Court, W.D. Wisconsin.

Oct. 26, 2011.

David J. Hacker, Alliance Defense Fund, Heather Gebelin Hacker, Folsom, CA, Jordan W. Lorence, Alliance Defense Fund, Washington, DC, Krystal Williams–Oby, Madison, WI, Travis C. Barham, Alliance Defense Fund, Columbia, TN, David Andrew Cortman, Alliance Defense Fund, Lawrenceville, GA, for Plaintiff.

Bruce A. Olsen, Wisconsin Department of Justice, Lori Marie Lubinsky, Axley Brynelson, LLP, Madison, WI, for Defendants.

DECISION AND ORDER

LYNN ADELMAN District Judge.

The plaintiff, Collegians for a Constructive Tomorrow—Madison (“CFACT”), is a student organization at the University of Wisconsin–Madison.¹ It alleges that its members have been deprived of their rights under the First Amendment by the university's system for distributing campus student-activity fees.² Before me now are the parties' cross-motions for summary judgment, as well as CFACT's two motions to strike certain evidence from the summary-judgment record.

I. BACKGROUND

A. General Background

CFACT's claims arise out of a line of cases involving extracurricular student speech at public universities. See Bd. of Regents of the Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000) ( “ Southworth ”); Southworth v. Bd. of Regents of the Univ. of Wis. Sys., 307 F.3d 566 (7th Cir.2002) (“ Southworth II ”). Under these cases, a public university may require a student to pay student-activity fees that are used to fund the expressive activities of student organizations only if it allocates the fees on a viewpoint-neutral basis. Southworth, 529 U.S. at 221, 120 S.Ct. 1346. In the present case, CFACT alleges that the defendants have violated the viewpoint-neutrality requirement by denying it eligibility for fees from the General Student Services Fund (“GSSF”), which is a form of student-fee funding at UW–Madison, while at the same time granting eligibility to WISPIRG, another student group at UW–Madison that engages in the same types of activities as CFACT but from a different viewpoint. In related claims, CFACT alleges that the criteria for GSSF eligibility and the criteria for obtaining another form of student-fee funding, known as “contract status,” are vague and therefore vest decisionmakers with unbridled discretion to determine who will receive these forms of funding. In yet another claim, CFACT argues that the defendants violated the viewpoint-neutrality requirement in awarding contract status to WISPIRG in 2009. To properly analyze CFACT's claims, I must first provide some background on the system for allocating student fees at the university and the powers and responsibilities of the various defendants. ³

Public universities in Wisconsin are organized under state law as the University of Wisconsin System. See Wis. Stat. § 36.03 (2009–10). The primary responsibility for governance of the system is vested in a board of regents (the “Board”). Id. § 36.09(1)(a). The Board appoints a president of the system, id. § 36.09(1)(e), who administers the system under Board policies and assists the Board in developing system-wide policies, id. § 36.09(2)(a). The Board also appoints a chancellor for each university within the system, id. § 36.09(1)(e), and each chancellor is responsible for administering Board policies at his or her institution, id. § 36.09(3).

The Board sets the tuition and fees charged to the students enrolled at each university. Id. § 36.27(1)(a). Since at least the creation of the UW System in 1973, the Board has required students to pay non-instructional “segregated university fees,” ⁴ which are used to fund a variety of student services, programs, and facilities related to the overall educational mission of the system. (Bazzell Decl. [Docket # 93] ¶ 6.) The system-wide policies governing the administration of these fees are stated in University of Wisconsin System Policy F50 (“Policy F50”).⁵ Policy F50 divides segregated fees into two categories, allocable and non-allocable. The non-allocable fees (which are not relevant to this case) are used to support certain specified services and facilities, such as student unions, health centers, and child-care centers. Policy F50 § I.A.(2). The allocable fees are used to provide “substantial support for campus student activities,” Policy F50 § I.A.(1), and are the student fees at issue in this case. Any “officially recognized student organization” at a university within the system is eligible to receive allocable fees. Policy F50 § II.B.(1).

Under Wisconsin law, the student body at each institution plays a major role in deciding how allocable fees are distributed. The Wisconsin Statutes expressly recognize “the students” as active participants in university governance and grant them the right to organize themselves as they see fit and select their representatives for participation in university governance. See Wis. Stat. § 36.09(5); Student Ass'n of Univ. of Wisconsin–Milwaukee v. Baum, 74 Wis.2d 283, 246 N.W.2d 622 (1976). With regard to allocable funds, the statute provides that “[s]tudents in consultation with the chancellor and subject to the final confirmation of the board shall have the responsibility for the disposition of those student fees which constitute substantial support for campus student activities.” Wis. Stat. § 36.09(5).

In accordance with § 36.09(5), Policy F50 states that the students, through their chosen representatives (the student government), allocate the allocable portion of the segregated fees in consultation with the chancellor and subject to the final confirmation of the Board. Policy F50 § I.A.(1). The policy contemplates that the student government will make recommendations to the chancellor regarding fee allocations. If the chancellor does not identify any problems with the students' recommendations, he or she will forward them to the Board for final confirmation. Policy F50 § II.A. If the chancellor identifies any problems, the students and the chancellor must attempt to resolve their differences. Policy F50 § II.A.(6)(e) & n. 1. If they cannot, the matter is referred to the system president and the Board for final resolution. Id.

At the University of Wisconsin–Madison, the students have organized themselves in accordance with § 36.09(5) as the Associated Students of Madison (“ASM”), and have promulgated bylaws governing the distribution of allocable fees. ⁶ The bylaws divide the allocable fees into several different categories and create separate procedures for obtaining fees from each category. As noted, the category of fees at issue in the present case are those that constitute the General Student Services Fund (“GSSF”). Contract-status funding is also relevant, but I discuss it separately, below. In general, GSSF funding is used to subsidize student organizations that provide a “direct service” to “the entire student population.” ASM Bylaws § 2.032(3)(c)i.⁷

A student organization's first step towards obtaining GSSF funding is to apply for eligibility with the Student Services Finance Committee (“SSFC”), see ASM Bylaws § 2.032(3)(a), which is composed of student members. To obtain eligibility, the student organization must meet the written criteria set forth in the ASM Bylaws. ASM Bylaws § 2.032(3)(c)(3). The SSFC generally holds eligibility hearings one academic year in advance, and if eligibility is granted it will last for two academic years. Thus, if an organization applies for and is granted eligibility in 2008, that organization will be eligible for GSSF funding in 2009–10 and 2010–11. However, an organization that is granted GSSF eligibility must submit its specific funding request to the SSFC every year. Thus, if an organization is granted eligibility in 2008 for the following two academic years, it must submit a funding request in 2008 for the 2009–10 academic year and then a separate funding request in 2009 for the 2010–11 academic year.

If the SSFC votes to deny a student organization's application for GSSF eligibility and the organization believes that the denial was caused by viewpoint discrimination, the organization may appeal to the student judiciary, see ASM Bylaws § 5.07(3), which is a branch of the ASM. The student organization initiates the appeal to the student judiciary by filing a complaint. ASM Bylaws § 5.04(1). A hearing is held before a panel of three student justices within ten days of the filing of the complaint, and the panel must publish its decision within ten days of the date of the hearing. Id. § 5.04(2). If the student organization is not satisfied with the panel's decision, it may appeal to the full judiciary. Id. § 5.05. The full judiciary then decides whether to hear the appeal and, if it decides to hear the appeal, issues a decision within ten days of the hearing. Id. § 5.06.

If after exhausting its appeal rights within the ASM the student organization still believes that it has been subject to viewpoint discrimination, it may appeal to the chancellor. Policy F50 § II.A.(6)(e); ASM Bylaws § 5.06(3)(e)2a.v (2008). If the chancellor finds that a decision was made on the basis of viewpoint, she communicates her findings to the ASM, and then the ASM will reconsider the student organization's funding request. If the ASM disagrees with the chancellor's finding, it may bring the matter before the system president and the Board in accordance with Policy F50 and related Board policies. Policy F50 § II.A.(6)(e) & n. 1. If the chancellor finds no viewpoint-neutrality violation, her decision is final. Id. The affected student organization does not appear to have a right to appeal the chancellor's finding of no discrimination to the system president or the Board.

Contract Status

The procedures described above apply to any request for...