Students pay the bill when it comes to free speech, but what if they didn’t have to?
In Fall 2017, Columbia University College Republicans (CUCR) hosted “free speech month,” in which they invited controversial far-right speakers such as Tommy Robinson and Mike Cernovich to campus amid student body protests. In response, the Columbia Black Students Organization (BSO) petitioned for the Student Governing Board (SGB) to stop recognizing and defund CUCR. In their statement, BSO argued that by inviting speakers that “normalized complacency and acceptance fo white supremacy” and put forth “ideas that are fundamentally based in our dehumanization, a hindrance to free speech."
SGB and the administration did not take this petition particularly seriously and no actions were taken to stop recognizing CUCR. These actions are consistent with two pervasive ideas on Columbia’s campus: that First Amendment principles of freedom of speech would be violated if CUCR was defunded, and that first principles apply to Columbia’s campus in much the same way that they apply to public universities and the country more generally. However, the truth is far more complex than that, and could potentially make viable aspects of BSO’s petition to stop recognizing CUCR.
Illustration by Sahra Denner
The Supreme Court case Board of Regents of the University of Wisconsin System v. Southworth (2000) sets a complicated precedent for situations such as this. The University of Wisconsin had developed a system similar to Columbia’s in which a committee of student appointees were in charge of allocating funds to student organizations. Many of the student clubs that received funding were political groups. Southworth, a conservative student, felt that the University could not compel him to pay a student fee when it was used to fund liberal advocacy groups on campus, arguing that compelling him violated his rights to freedom of speech and association.
The 7th Circuit Court of Appeals ruled in favor of Southworth, deciding that because the political groups weren’t germane to the University, forcing the student to pay the activities fee was a burden on his First Amendment rights. However, when the case advanced to the Supreme Court, Justice Kennedy dismissed this part of the ruling considerably, writing in the majority opinion that “it is not for the Court to say what is or is not germane to the ideas pursued in an institution of higher learning.” However, he went on to suggest that “if the standard of germane speech is inapplicable, then, it might be argued the remedy is to allow each student to list those causes which he or she will or will not support.”
But while the majority opinion maintained that an optional or refund system as a remedy would be constitutionally permissible, they ruled that this should not be required in order to protect the free speech of university students, arguing that “the restriction could be so disruptive and expensive that the program to support extracurricular speech would be ineffective.” In other words of the practical difficulties of implementing such a remedy, the Court decided that such measures would probably end up restricting free speech for students by rendering programs to support university activism and politics impossible to support.
What does this have to do with movements to defund CUCR? The idea that students could have the First Amendment right to withhold their support for a student political organization with which they disagree is fundamentally connected to the question of whether petitions to derecognize CUCR are viable. While it is unlikely that Columbia’s free speech policies would allow for CUCR to be directly derecognized by SGB, the Wisconsin case indicates that there is a precedent (albeit a complex and controversial one) for the petitioners to request back the portion of their student life fee that would have otherwise gone to CUCR.
In 2017, the year Free Speech Month occurred, CUCR received $4640 for SGB; divided evenly among the students of the four undergraduate colleges, corresponding to 40 cents per student. Although it is unclear exactly how many people signed BSO’s petition initially and precisely how many students would be interested in this kind of compromise today, this could potentially make a significant dent in the budget of a student organization such as CUCR––if there were 1000 signatories who requested a refund, for example, that would be $400 that CUCR would never see.
This compromise, of course, would likely affect other political organizations on campus such as Columbia Democrats, Students Supporting Israel, and Students for Justice in Palestine. If it were implemented on a widespread scale, it could potentially do what Justice Kennedy feared: render most political extracurricular groups ineffective, and thus diminish the free speech of the student population as a whole. But the key idea here is that it such a remedy, however nuclear, could be a constitutionally permissible way for an organization such as BSO to accomplish the goals of its initial petition.
Another case, Janus v. American Federation of State, County, and Municipal Employees, potentially strengthens the refund remedy. In this landmark Supreme Court case in US labor law regarding how unions charge fees to non-union employees, employees who declined to join the union were charged an “agency fee” that was a smaller percentage of the union dues. The plaintiff, Janus, believed that the Union’s “behavior in bargaining does not appreciate the current fiscal crises in Illinois and does not reflect his best interests or the interests of Illinois citizens,” and so he challenged the idea that he should have to support the union through any fees at all. The court decided the case in favor of Janus.
In the majority opinion, Justice Alito wrote that “compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command [that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein], and in most contexts, any such effort would be universally condemned.” This opinion would seem to indicate that a refund system for the student activities fee would not just be constitutional, but would be constitutionally required. Why wouldn’t the ruling in Janus apply to the the University context as well? There’s not an entirely straightforward answer.
Obviously, there is a crucial difference between the situation of University of Wisconsin and that of Columbia: Wisconsin is a public university, while Columbia is a private one, free to set its own terms, even if it says that in most cases, 1st Amendment principles apply to Columbia. What’s more, Columbia’s president Lee Bollinger is a famed First Amendment scholar who occupies a unique position in these debates. Bollinger, through writing The Tolerant Society in 1986, is a primary proponent of tolerance theory, which is the idea that as a society we should avoid the impulse to excessively punish harmful speech.
It is unlikely that he would approve of any plan that would contradict a traditional conception of the University’s purpose as a viewpoint neutral platform for free expression, and because this is a private university, the administration has significantly more authority to dictate the policies on these issues when it comes to these issues. But under different leadership, one could imagine the University taking a different position on the way in which these freedoms should best be protected. In fact, this is a pressing concern amongst some faculty members. In the long term, students could see this as a call for a shift in the conversation around how Columbia interacts with controversial speech.