Southworth and Referenda

The Southworth Decision:

Southworth is a landmark, unanimous decision made by the U.S. Supreme Court in March of 2000 that upheld the ability of mandatory student fees to fund student services and activities.  The Court stipulated that these fees must be allocated without regard to an organization’s viewpoint in order to protect the first amendment rights of students.

Southworth and Referenda:

In the opinion, the Court justifiably expressed doubts as to the viewpoint neutrality of the referenda 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.”  If referenda are the sole means by which groups can be determined eligible for funding, then a majority opinion could easily silence minority dissension, thereby violating the notion of viewpoint neutrality.   However:

A Critical distinction exists between the use of referenda to determine a group’s eligibility to receive funds and the use of referenda to determine the amount of funds allocated to a group that has already been deemed eligible.

Although the distinction may seem pedantic, the difference is of the utmost significance.  In decisions regarding the allocation of fees to a pre-approved organization, referenda simply measures the number of students served by that specific organization.  It seems appropriate that the allocation of funds should be a function of the number of students who benefit from the group’s presence on campus.  A concrete example demonstrates the need for a measurement of popular support in the fee allocation process.  Suppose that both a pro-life group and a pro-choice group were applying for funding at the same university and suppose that both groups are determined eligible by a rigorous, viewpoint neutral process.  Suppose also that the pro-life group has 500 members while the pro-choice has only 5.  Clearly, the pro-life group is supported by more of the campus community and thus needs a greater amount of money to serve its large body of members.  If the funding process ignores this vast difference in student support between the two groups, then both would receive the same amount of money.  Such a decision would effectively amplify the voice of the pro-choice group at the expense of the expressive rights of the pro-life group. 

Conclusion:

The key point about the relationship between referenda and the Southworth decision is the necessary distinction between eligibility and allocation.  Referenda should play no part in determining the eligibility of a student organization to receive funds.  Such a decision should be made by examining the degree to which an organization meets predetermined, objective criteria.  Once eligible, however, referenda can and should be a determining factor in the amount of funds allocated to a group.