Viewpoint Neutrality Now v. Regents of the Univ. of Minn.

• Citation: 516 F.Supp.3d 904
• Decision Date: 02 February 2021
• Docket Number: Case No. 20-CV-1055 (PJS/TNL)
• Court: U.S. District Court — District of Minnesota
• Parties: VIEWPOINT NEUTRALITY NOW!, Evan Smith, and Isaac Smith, Plaintiffs, v. REGENTS OF the UNIVERSITY OF MINNESOTA ; Kendall J. Powell, Chair; Steven A. Sviggum, Vice Chair; Thomas J. Anderson; Richard B. Beeson; Mary A. Davenport; Kao Ly Ilean Her; Michael D. Hsu; Mike O. Kenyanya; Janie S. Mayeron; David J. McMillan; Darrin M. Rosha; and Randy R. Simonson, in their respective official capacities or their successors; Joan T.A. Gabel, President of the University of Minnesota, in her respective official capacity or her successor; and Maggie Towle, Interim Vice Provost For Student Affairs and Dean of Students, in her respective official capacity or her successor, Defendants.

516 F.Supp.3d 904

VIEWPOINT NEUTRALITY NOW!, Evan Smith, and Isaac Smith, Plaintiffs,

v.REGENTS OF the UNIVERSITY OF MINNESOTA ; Kendall J. Powell, Chair; Steven A. Sviggum, Vice Chair; Thomas J. Anderson; Richard B. Beeson; Mary A. Davenport; Kao Ly Ilean Her; Michael D. Hsu; Mike O. Kenyanya; Janie S. Mayeron; David J. McMillan; Darrin M. Rosha; and Randy R. Simonson, in their respective official capacities or their successors; Joan T.A. Gabel, President of the University of Minnesota, in her respective official capacity or her successor; and Maggie Towle, Interim Vice Provost For Student Affairs and Dean of Students, in her respective official capacity or her successor, Defendants.

Case No. 20-CV-1055 (PJS/TNL)

United States District Court, D. Minnesota.

Signed February 2, 2021

Erick G. Kaardal, MOHRMAN, KAARDAL & ERICKSON, P.A., for plaintiffs.

Carrie Ryan Gallia, UNIVERSITY OF MINNESOTA OFFICE OF THE GENERAL COUNSEL, for defendants.

ORDER

Patrick J. Schiltz, United States District Judge

The University of Minnesota collects a mandatory student-services fee each semester at its Twin Cities campus. The fee is used to fund registered student organizations ("RSOs"), media groups, and administrative units; support student health and wellness services; and subsidize the student union, known as the Coffman Memorial Union ("Coffman").

Plaintiffs Evan Smith and Isaac Smith are students at the University¹ who have paid this mandatory fee. The Smiths, along with plaintiff Viewpoint Neutrality Now! (an unregistered² student organization), bring this lawsuit to challenge the manner in which the University distributes the fee. Plaintiffs argue that the process used by the University is not viewpoint neutral and therefore violates the First Amendment.

Plaintiffs seek injunctive and declaratory relief against a number of defendants, including the Board of Regents of the University of Minnesota ("Board of Regents"), the individual members of the Board of Regents, the President of the University, and the Interim Vice Provost for Student Affairs/Dean of Students ("VPSA/DoS") (collectively, the "University"). This matter is before the Court on the University's motion to dismiss. For the reasons that follow, the Court grants the motion in part and denies it in part.

I. BACKGROUND

A. The Student-Services Fee

Each semester, the University collects a mandatory³ student-services fee of approximately $443.00 from every student enrolled in six or more credits.⁴ Compl. ¶ 43; Compl. Ex. C, at 1. The fee "funds non-instructional programs and activities; supplements the academic curriculum; and is an integral part of the University's educational experience." Compl. Ex. C, at 1. The fee is divided into three parts: a $411.50 Student Life, Health, and Wellbeing Fee; an $18.91 Student Activity Fee; and a $12.59 Media Fee. Compl. ¶ 43. A total of about $36,000,000 is collected each year. Id. ¶ 40.

The Board of Regents has adopted a broad policy governing the distribution of the fee. That policy has four overarching principles: (1) "Fee-supported programs, activities and services shall be available to all students assessed the fee"; (2) the fee is developed in recognition of the total cost of tuition; (3) "The University's educational mission is well served when students have the means to engage in dynamic discussions of diverse topics in their extracurricular campus life"; and (4) "Decisions regarding the allocation of fees among student groups shall be made in a viewpoint-neutral manner."⁵ Compl. Ex. C, at 1–2.

The broad policy adopted by the Board of Regents is implemented through three handbooks that provide specific rules governing the allocation of the student-services fee: the Student Services Fee Request Handbook For Media Groups ("media-groups handbook"), the Student Services Fee Request Handbook for [Registered] Student Organizations ("RSO handbook"), and the Student Services Fee Request Handbook for Administrative Units ("administrative-units handbook").⁶ Compl. Exs. D, E, F. The Student Services Fee Committee ("SSFC") is tasked with distributing the student-services fee in a manner that is consistent with the handbooks. The SSFC is itself composed of two committees: (1) the administrative-units and media-groups committee and (2) the student-groups committee. Each committee is composed of students, faculty, and administrators. Compl. Ex. D, at 5–6.

Although there are differences in the funding-application processes for media groups, RSOs, and administrative units, the processes have a number of similarities. In order for any group to apply for funding, the group must meet 15 "minimum requirements,"⁷ two of which are challenged by plaintiffs in this litigation: First, the financial-documents requirement provides that the "group must be able to provide financial documentation ... for the 12 (consecutive) months prior to applying." Id. at 10. And second, the partisan-political-organizations requirement provides that:

Partisan political organizations are not eligible for the general student services fee funding. "Partisan political organizations" are organizations affiliated with a registered political party or candidates for election which are formed for the purpose of supporting a political party or candidate for election. Such groups may seek funding for their nonpartisan political activities ... through other University grant and student funding programs.

Id. If a group meets the minimum requirements, the SSFC will consider its application, provided that the application meets eight more criteria. Id. at 11.⁸ (The University does not lack for rules.)

After submitting an application for funding, each media group, RSO, and administrative unit is required to make a public presentation to its respective fee committee. During that presentation, each applicant justifies its funding request and answers questions. In addition, each of the two committees holds a public forum at which any member of the University community may provide input and ask questions. Id. at 9. Following the public forums, the two fee committees publicly deliberate on the applications. Every SSFC meeting is open to the public, and members deliberate pursuant to parliamentary rules. Id. at 8–9.

The SSFC "is charged with making responsible, viewpoint-neutral recommendations for awarding fee funding to administrative units, student groups, and media groups." Id. at 11. The SSFC is required to consider 13 factors⁹ when evaluating an application, such as the group's contributions to the student body, the quality and quantity of the group's events, and the group's justification for its request. Id. at 11–12. Compliance with all 13 factors does not, however, guarantee funding. Id. After evaluating the applications, the SSFC makes funding recommendations to the VPSA/DoS. The SSFC will also describe the reasoning behind the recommendations, summarize any dissenting views, and provide advice for next year's committee. Id. at 8. All SSFC records are publicly available. Id. at 9.

After receiving recommendations from the SSFC, the VPSA/DoS accepts or rejects the recommendations and then forwards her decision to the Executive Vice President and Provost, so that the funding approved by the VPSA/DoS can be included in the University's proposed annual budget. The Board of Regents gives final approval to the University's annual budget. Id. at 6.

In addition to these general rules, each of the three handbooks includes rules and procedures that apply only to the group that is the subject of the particular handbook:

1. Media Groups

Student media groups are funded through the Media Fee. Compl. ¶ 43. To apply for funding, a media group must meet four requirements: First, the group's "mission" must be "to provide a media-related service (not exclusive to social media) to campus." Second, the group must be registered and in good standing. Third, the group must meet the 15 minimum requirements (described above) that apply to any group that seeks student-services-fee funding. And fourth, the group must "[g]ain approval from the VPSA/DoS (or designee) to apply for SSF funds as a Media Group." Compl. Ex. D, at 15. The VPSA/DoS has "exclusive authority to determine which applicants may apply" for funding. Id. There is no appeal from the VPSA/DoS's decision.

After receiving approval from the VPSA/DoS and attending an information session, a media group may apply for funds. The group can request any amount for operational¹⁰ costs and up to $30,000¹¹ for event or project¹² costs. Id. at 17; Compl. ¶ 53. Following submission of the media group's application, the group's public presentation, and the public forum, the administrative-units and media-groups committee publicly deliberates and then posts its recommendations online. Compl. Ex. D, at 3, 18–19. A second public forum is held following the posting of the recommendations to collect feedback from the University community. Id. at 19.

Finally, an appeals process is available to the group and any fee-paying student. Id. at 20. There are three grounds for appeal: (1) the SSFC violated its own rules; (2) the SSFC exhibited bias against the group; and (3) the SSFC did not make a viewpoint-neutral decision. Id. The VPSA/DoS reviews the appeal and determines whether a formal hearing is required; if she decides to convene a formal hearing, the appellant, the VPSA/DoS, and the chair of the administrative-units and media-groups committee will participate in that hearing. Id. The appeal is then decided by the VPSA/DoS. Id. at 21.

2. RSOs

RSOs are funded through the Student Activity Fee. An RSO that meets the minimum requirements (discussed above) may apply for up to $30,000 per academic year for event- or project-related costs and up to $25,000 for operational costs. Compl. Ex. E, at 17, 21–23. Following submission of the RSO's application, the group's public presentation, and the public forum, the student-groups committee publicly deliberates and then posts its...