University of Virginia Library

VII. Construction of Guidelines

The guidelines of the Board for disbursement of the student activity fee revenues, to the extent relevant here, are as follows:

All student organizations shall be eligible to receive funds from the student activities fee, except that no monies shall be given for religious or political activities or for honoraria or social entertainment.

Religious activities are not defined in the guidelines but a detailed definition of political activity was adopted by the Board by incorporating a resolution of the Student Activities Committee, as follows:

Political activities are, in general, those normally engaged in by political parties or special interest groups, such as electioneering, lobbying, and propagandizing. Electioneering shall include any activity connected with the electoral process in a partisan manner. Lobbying shall include any activity whose purpose is to influence governmental action or policy. Propagandizing shall include any activity whose purpose is to procure, or prevent, the acceptance of any social, economic or political theory as an operating principle of polity; propagandizing shall not be interpreted to include engaging in non-partisan analyses, study, or research or making those results available to the public.

(Minutes, 5 June 1970 (pp. 154-155). A literal interpretation of these guidelines leads to the conclusion that all student organizations are entitled to money so long as a restriction is placed upon their religious, political and social activities and upon their payment of honoraria and expenses for parties. There are a number of difficulties in construing the guidelines in this literal fashion.

First, if subsidies to an organization are conditioned in special ways, the University is open to the challenge that it is attempting to manipulate the conduct of the organization through use of the funds in an unconstitutional fashion. From an administrative point of view, standards such as these will not work unless they are applied on an all or nothing basis. The Internal Revenue Service has learned this from hard experience in developing policies for tax exemption for educational and other organizations. If a substantial part of the organization's work involves a tainted activity, the exemption of the entire organization is lost.

Second, it should not be assumed that effective controls can be exercised to ensure the exclusion of part of an organization's activities or to ensure that monies granted are actually used for approved activities.

The Committee is not taking the position that the Board did not mean what it said. It is simply taking the position that these guidelines should be read in context. Any written or spoken word is ambiguous--the meaning can be ascertained only when the writer or speaker and communications target are known and the context of the communication is considered. Here, to interpret these guidelines, we should consider how they were developed, why they took this particular form, what the Board was empowered to do, and the changing conditions under which the guidelines are administered.

To be explicit, the Committee is saying that guidelines can be one thing at a particular time and later, when the conditions under which the guidelines are being administered are changed, the guidelines can be construed differently. This is true of a deed, contract, will, statute, constitution or any other writing. Roughly the same techniques of construction can be applied to all.

Background of Guidelines--Changing Conditions

While the Board clearly has the responsibility for providing guidelines for handling the activity fund, the guidelines have been developed piecemeal. The Student Activities Committee of the University has contributed substantially to the guidelines now prescribed by the Board. The Student Council, since its direct administrative role was approved by the Board in 1968, has established guidelines of its own in addition to those prescribed by the Board and those applied by the Student Activities Committee.

One reason for this piecemeal development, apart from alterations in the administrative structure for handling the fund, has been the enormous expansion of student organizations of an extracurricular nature. This may be due to more generous financing from activity fees than in earlier days. Perhaps the reason is a greater student involvement in affairs once considered alien to a University.

In any event, from eight organizations being funded from the activity fee in 1958-59 we have moved to ninety-three in 1972-1973. As of 24 January 1973, there were one hundred and fourteen recognized organizations. Determining which organizations should and should not be funded has resulted in a gradual delineation of guidelines, in part by trial and error. The process of developing guidelines has been complicated by successive generations of students directly involved in their formulation, each generation having its own views concerning the activities to be financed and the organizations engaged in these activities which should receive the money. Similar complications have resulted from changing membership of the Student Activities Committee and the Student Affairs and Athletics Committee of the Board.

The guidelines now prescribed by the Board in its Resolution of 1970 are for the most part products of the thought of administrative committee members concerned directly with allocation of the funds. Examining the allocations made to organizations in the 1972-73 session, it will be seen that only those organizations recognized or which were to be recognized were to receive funds. All organizations were not eligible. No organization engaged in extensive political activity, or in religious activity received funds. It is not possible from the data before the Committee to determine which organizations applied and were rejected. "Action Ministries" and "St. Thomas Hall" had no allocation. A host of organizations of a political character received no allocation (American Friends of Free Palestine; Charlottesville-Albemarle Citizens for McGovern; Charlottesville Resistance; First Yearmen for Better Government; Howell for Governor Committee; National Caucus of Labor Committees; Northern Virginia Student Vote; Union Democracy Project; Young Americans for Freedom; The Young Republicans Club; Committee to Send Letters to Congress; Quebec-Labrador Volunteers for Virginia (possibly political?) and Virginia Field Staff of National Committee for U.S.-China Relations). Groups which seemed predominantly social-- Beaux Arts Ball Committee; The Circle K Club of Virginia; The Community Dance Committee; the Restoration Ball Committee; the Seven Sour Sippers Society and the Trident Society received nothing-nor did two fraternities (apparently professional). Professional fraternities in law and other schools and social fraternities are not funded from the activity fund. If the Committee is to judge from the funds actually disbursed, those charged with the disbursement are, for the most part, doing precisely what the Board has in mind.

If the organization engages in some religious activity it is impossible, practically, to divorce its religious activities from its other activities. The organization must stand or fall as a unit--and all of them seem to have fallen. This is proper. Funds devoted to a religious organization from public sources would violate the Virginia Constitution and the establishment Clause of the First Amendment to the Federal Constitution as applied to the states through the due process clause of the Fourteenth Amendment. If an organization engages in substantial religious "activity" it is entirely religious for the purpose of the establishment clause.

Organizations with political activity of a substantial nature were also given short shrift so far as allocations were concerned. The main difficulty here is Federal Internal Revenue Code § 501(c)(3), under which the University of Virginia is now exempt from federal taxation and upon which donors to it rely for exemption for their inter vivos and testamentary gifts. The Code states, after describing the exempted educational institution:

No substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements) any political campaign on behalf of any candidate for public office.

The regulations pursuant to this section establish both "organizational" and "operational" tests for exemption. The Gay Student Union clearly would not qualify because its constitution does not limit it to an exempt purpose and it might well be regarded as an "action" organization and fail to meet the operational requirements. But the important point is that it is the continuing exemption of the University which counts. Professor Bork, who will be the new United States Solicitor General, has stated, in commenting upon the tax ramifications of political activity by universities, (Bork and Others, "Political Activities of Colleges and Universities" (1970) 18):

A serious problem may be that of the university's involvement with groups that are engaging in direct lobbying of legislators or addressing the public in an effort to influence legislation. This problem may arise frequently because of the intense interest of faculty and students in political issues. Again, individual or group action not endorsed or supported by the university poses no threat to the university's tax exempt status. In determining "support," some realistic distinctions are necessary. Some uses of university funds and facilities can hardly be said to constitute support of the activity without infringing the proper area of individual freedom. Thus, the fact that an attempt to influence legislation is made by a faculty member on salary or a student on scholarship may not properly be held to implicate the university. Similarly, the use of some types of university facilities is inevitable in such cases, if only because many students and faculty members live on campus and customarily use certain facilities, such as the library, for a variety of purposes. The use of other types of facilities, such as computers, mailing lists, secretarial service, and the like for work not directly connected with education is not customary or inevitable and would raise serious problems.

It seems clear, of course, cash payments to groups attempting to influence legislation, or giving them the use of university facilities without compensation or with only token compensation would raise a serious danger ***.

The Internal Revenue Service has recently issued liberal rulings stemming from university association with groups engaged in political activity or attempting to influence legislation. Thus, students who participated in political campaigns as part of a political science course would not cost the university its exempt status. Providing facilities and an adviser to a college newspaper for publishing political opinions and advocating changes in legislation also would not result in a denial of exemption.

The danger is not in subsidizing a single organization having a substantial pattern of political activity but in subsidizing a substantial number of these as a settled policy. When political "activity" is read in the tax context, which led in great part to the inclusion of this exception, activity must be taken to mean substantial activity which will disqualify the organization as a unit. Funds allocated to an organization engaged in substantial activity but restricted to non-political purposes would simply free other assets for political use.

Having construed religious activity and political activity as disqualifying the organization from subsidy under the guidelines, how then should the words "social entertainment" be construed? Difficulty in construing these words may have been at the root of the difficulty in the allocation now before the Committee.

The term "entertainment" appears to have worked its way into the guidelines in a letter by Mr. Shea to the President (Mr. Darden) in 1956. The Student Activities Committee had been created in that year and Mr. Shea, with the approval of Dean Runk, suggested that the publication fee of $5.00 should be placed under the new Committee to which the Cavalier Daily staff would submit a budget of salaries and expenditures. The letter stated "the committee could thus disapprove expensive parties" (Minutes, 14 April 1956, p. 11). A restriction upon entertainment then appeared in the guidelines of the Committee and surfaced in the Board Resolution of 1968 in which Student Council was brought formally into the disbursement process. This referred to a review of the budgets of all "other organizations" (the Cavalier Daily being excluded) by Student Council; but Council was enjoined not to approve budgets in opposition to stated University policies (e.g., religious or discriminatory organizations), or for politically oriented organizations or for entertainment. When the word appeared in the 1970 Resolution, it was linked with "social" as "social entertainment".

There can, of course, be entertainment other than social; and this other "entertainment" seemingly no longer was excluded. A musical event or series might well be described as entertainment. But no allocations for musical events were made in 1972-73. The interpretation continued as an exclusion of "entertainment" although the word "social" had been annexed.

The present activity fee was separated from the comprehensive fee in 1970 at the time the current Board guidelines were established. There is no indication either before or after these guidelines were prescribed that allocations were made to organizations extensively engaged in social activities. Examples were given in the 1968 Board guidelines of religious or discriminatory organizations as excluded but these categories apparently were not comprehensive. No support was being given to social fraternities and professional fraternities engaged principally in social activity.

The powers of the Board, analyzed in detail in Part VI of this Report should shed light upon this construction. Public funds were involved and should not be used for purposes basically private. Social occasions, furthermore, usually were exclusive and members of the student body lacked equal access. The educational relationship of the social function in many instances would not be clear.

While there appears to have been no analysis of the scope of its power to disburse these fees--with the exception of an opinion on bail bonds--the Board appears never to have contemplated a social activity as an activity to be subsidized.

The exclusion of social activities can be based upon an interpretation of the Board's power or it can be based upon the guidelines as interpreted in the light of the necessary propriety in handling public funds. By either view, social activities were not funded.

There would, of course, never have been a basis for distinguishing between social events that were entertaining and those that were not--this would be a subjective matter which no one could ascertain until the event was held. Quite probably, the draftsmen of the guidelines regarded all social events as entertainment. To "social", the word "entertainment" may or may not be redundant--but an ambiguity exists which can be remedied only by construing the word in context as the Board intended--which is "social activity".

By continuing to construe the word as "entertainment", which no longer appeared in this solitary fashion in the 1970 guidelines, an allocation could be made to an organization with principally social functions by limiting the purpose of the allocation to purposes non-social in nature. But as with religious activity and political activity, this would not do. If the substantial activity of the organization is social, that should disqualify it. All exclusions should be construed similarly.