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 | Board of Visitors minutes August 21, 1995 |  |
After the Rector called the meeting to order, Mr. Dalhouse moved the following motion to permit the Board to meet in Executive Session:
That the Board of Visitors of the University of Virginia go into Executive Session for the purpose of consulting with the General Counsel concerning certain pending and potential litigation involving the University, as well as specific legal matters requiring the advice of counsel, as provided for in Section 2.1-344 (A) (7) of The Code of Virginia.
The President outlined briefly the Agenda to be considered by the Board and asked Mr. Earl Dudley of the Law School to review the legal issues raised by the Supreme Court's decision in the "Wide Awake" case, Rosenberger v. Rector and Board of Visitors.
In 1991, Mr. Dudley reminded the Board, the student publication "Wide Awake" applied to Student Council for financial support from the Student Activities Fee. Council denied the request because "Wide Awake" was primarily a religious journal espousing a particular religious point of view. Mr. Rosenberger, the editor of "Wide Awake," brought suit against the University in the Federal District Court in Charlottesville in July, 1991; the Court ruled in favor of the University and this ruling was upheld on appeal. The Supreme Court last fall decided to hear the case and in late June reversed, by a vote of 5-to-4, the decisions of the lower courts.
Mr. Dudley summarized the Supreme Court's ruling as follows: "(1) Because the University is an arm of the state and because the mandatory collection and disbursement of the Student Activities Fee are done pursuant to actions of the Board of Visitors, the terms on which groups are afforded access to the funds must comport with the requirements of the United States Constitution. (2) By funding through the Student Activities Fee speech-related activities, such as speakers, symposia, and the publication of journals, the University has created what is known as a 'limited purpose public forum,' and it may not, consistent with the Free Speech Clause, deny access to that forum - i.e., to funding by the Student Activities Fee - to groups on the basis of their viewpoints. (3) The wide-ranging nature of the speech activities funded by the Student Activity Fee includes discussion of topics related to religion, broadly conceived, and hence denial of funding to a group because it espouses a particular religious perspective constitutes forbidden viewpoint discrimination. (4) The denial of funding for explicitly religious speech is not required by the First Amendment's Establishment of Religion Clause, because by giving Wide Awake access to Student Activities Fee funds the University would not itself be promoting the Christian perspective (which would violate the Clause) but would merely be granting access to the established forum to a group whose very CIO [Contracted Independent Organization] charter declares its own independence and responsibility."
Mr. Dudley noted that the Court's ruling leaves many questions unanswered, questions that quite likely will be the subject of future litigation. Among these questions he mentioned, does the decision apply to activities other than publications? Specifically, does it apply to religious services? Does the decision have any impact on the Board's policies which prohibit funding for electioneering and lobbying? Will the courts be involved in the allocation of funds - that is the amount allocated? Finally, the Court's decision suggests that students may have the right to opt out of paying portions of the Student Activities Fee which support causes or organizations to which they are opposed.
The President emphasized that other than prohibiting the University from denying funds to religious publications, the Court gave no guidance in its ruling. He then reviewed the various options it appears the University has.
First, on the face of it perhaps the easiest thing to do would be to abolish the Student Activities Fee and thus the financial support it provides. Such an action, though, would be detrimental to a number of very effective student organizations and would have a dramatic impact on student life; it is quite clear, too, that a great many students and alumni would oppose it.
Another possibility would be to provide support for student organizations through department and school budgets. Yet another would be to pay for what appears to be inevitable litigation with Student Activities Fee money, though these funds probably would be exhausted fairly quickly. The Board could also direct that in considering whether or not to fund specific student groups, speech-related activities be isolated from others. Still another possibility would be for the Board not only to set the funding criteria but to take over the administration of the Fee.
In summing up, the President suggested three options:
1. Amend the funding guidelines to bring them into compliance with the Court's decision. The Attorney General of the Commonwealth has suggested a course of action in this regard and the President handed around a letter which had arrived in the Attorney General's Office earlier in the morning. (see Attachment)
2. The Board could decide to make and implement all funding policies.
3. Initiate a student referendum, or a series of referenda, on whether or not to retain the Student Activities Fee and on other questions.
The President went on to say that an immediate problem is that the University opens in a week and that something must be done quickly if it is the Board's wish to consider funding organizations that previously would have been ineligible for funding. The Board would also need to determine whether political activities - previously considered ineligible for Student Activities Fee funding -are henceforth eligible for funding.
Finally, the President recommended three immediate courses of action: Consider the advice of the Attorney General to remove immediately the funding restrictions struck down by the Court; direct that some sort of supplemental funding application process for support from the Student Activities Fee be instituted; and do not abolish the Student Activities Fee.
The Rector asked Mr. Harmon, Vice President for Student Affairs, to comment and to introduce the Student Council officers who had been invited to speak.
Mr. Harmon said the Board should bear in mind the far-reaching implications of its decisions on these questions, implications not just for the University but for other colleges and universities. He pointed out that at the University, learning does not occur just
He then introduced Mr. Carlos Brown, President of the Student Council, and Mr. Alvar Soosar, Vice President for Student Organizations.
Mr. Brown and Mr. Soosar spoke to the importance of retaining the Fee and thus continuing the support of the diverse organizations financed by it. They reported that Council members have been studying the possibility of separating funds for the support of speech-related activities from those which support the majority of the organizations funded by Student Activity Fee money. Under this formula, three quarters of the Fee would be used for non-speech related activities. In this way, they hope, most of the Fee could be protected from potential litigation arising out of the Court's decision.
In reply to a question from Ms. Twohy, Mr. Soosar and Mr. Brown said that even with this split in funds, the present guidelines, criteria, and procedures - with, of course, the changes required by the Court - would remain in effect.
Mr. Harmon said a further option open to the Board would be to remove the restrictions as required by the Supreme Court, but to otherwise leave the present system in place and continue to have it administered by students.
Mr. Low, the Provost, asked Mr. Soosar to describe the funding process that will begin shortly after the University opens. Mr. Soosar did so and said that about one fourth of the available funds - in other words, about $100,000 - remain unallocated.
There was a general discussion of the funding process and guidelines, involving Board members, the President, and Messrs. Brown and Soosar.
The Rector recessed the Board at 11:20 a.m., and resumed the meeting in Executive Session at 11:35 a.m. The meeting continued in Open Session at 12:30 p.m.
Mr. Greer offered a resolution, embodying the recommendation of the Attorney General, to amend the funding guidelines for the Student Activities Fee. The resolution was approved unanimously.
RESOLVED that notwithstanding any other provision of these Student Activities Fee funding guidelines, no student news,
The Rector noted that the Administration would work with the Attorney General to study questions raised by the decision of the Court and would bring further recommendations to the Board at its November meeting. The President agreed and said also that a number of issues noted in the Board's discussion would be considered, including the possibility of a student "opt-out" provision in the Fee guidelines.
| Board of Visitors minutes August 21, 1995 | |