Memo from UW System President Katharine C. Lyall regarding student referendums
May 3, 2000
To: Chancellors
From: Katharine C. Lyall, President
Re: Board of Regents v. Southworth
As you know, the United States Supreme Court decision in Board of Regents v. Southworth addressed not only the constitutionality of direct allocation of student fees by student government, but also the use of student body referenda as a means of funding. The Court held that, so long as it was viewpoint neutral, the direct allocation of fees by the student government was constitutionally permissible. As to referendum funding, however, the Court noted:
It is unclear to us what protection, if any, there is for viewpoint neutrality in this part of the process. To the extent the referendum substitutes majority determinations for viewpoint neutrality it would undermine the constitutional protection the program requires. The whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views. Access to a public forum ... does not depend upon majoritarian consent.
In accordance with this reasoning, the Court remanded the case to resolve whether the use of a referendum as a direct funding mechanism could be sustained consistent with the principle of viewpoint neutrality.
Based upon the Court's opinion and rationale, and evaluation of current policies and practices at UW System institutions, it appears that those student referenda that are used to determine or directly allocate funding for the extracurricular speech and expressive activities of student organizations do not satisfy the viewpoint neutrality standard established by the Court. As a result, I am directing that UW System policies governing the use of allocable student fees be amended to prohibit the use of referenda to allocate funding to student organizations for extracurricular speech and expressive activities, and I am further asking that you ensure that any campus-specific policies or practices be altered accordingly.
At the same time, however, I want to assure you that other referenda will remain permissible, consistent with the Court's decision. For example, those referenda that involve the use of student fees for capital building projects or those that do not result in a mandatory disposition of fees (including referenda on amendments to student government constitutions) would continue to be allowed.
Thank you for your cooperation in the implementation of these measures. Should you have any questions on these issues, please feel free to contact me, or Deputy General Counsel Patricia A. Brady.