Amidon v. Student Asn of the State Univ. of N.Y., No. 05-6623 (2d Cir. 2007)

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05-6623-cv Amidon v. Student Ass n of the State Univ. of N.Y. 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term 2006 5 (Argued: March 23, 2007 6 Docket Nos. 05-6623-cv(L), 05-6664-cv(CON), 06-0117-cv(XAP) 7 8 9 10 11 Decided: November 20, 2007) -------------------------------------------------------x ERIC AMIDON, WINSTON BROWNLOW, and COLLEGIAN ACTION LEADERSHIP LEAGUE OF NEW YORK, by its President, Plaintiffs-Appellees-Cross-Appellants, 12 -- v. -- 13 14 15 16 17 18 STUDENT ASSOCIATION OF THE STATE UNIVERSITY OF NEW YORK AT ALBANY, NEW YORK PUBLIC INTEREST RESEARCH GROUP, NYPIRG, and PRESIDENT OF THE STUDENT ASSOCIATION OF THE STATE UNIVERSITY OF NEW YORK AT ALBANY, in his official capacity, 19 -------------------------------------------------------x 20 21 22 B e f o r e : Defendants-Appellants-Cross-Appellees. 23 WALKER and B.D.PARKER, Circuit Judges, and CASTEL, District Judge.* Appeal from a judgment of the United States District Court 24 for the Northern District of New York (David N. Hurd, Judge), 25 granting summary judgment to the plaintiffs and denying summary 26 judgment to the defendants on the grounds that the Student * The Honorable P. Kevin Castel, United States District Judge for the Southern District of New York, sitting by designation. -1- 1 Association of the State University of New York at Albany 2 violated the First Amendment by using an advisory student 3 referendum to determine the amount of funding student 4 associations receive from a pool of mandatory student activity 5 fees. 6 AFFIRMED. 7 8 9 10 11 THOMAS MARCELLE, Law Office of Thomas Marcelle, Albany, New York, for Eric Amidon, Winston Brownlow, and Collegian Action Leadership League of New York. 12 13 14 15 LEWIS B. OLIVER, Jr., Oliver & Oliver, Albany, New York, for the Student Association of the State University of New York at Albany. 16 17 18 19 20 21 22 23 MICHAEL B. DE LEEUW (Alexander R. Sussman, Darcy M. Goddard, Michael F. Savicki, Sloan S.J. Johnston, Alexis Karteron, on the brief), Fried, Frank, Harris, Shriver & Jacobson LLP, New York, New York, for New York Public Interest Research Group. 24 25 26 27 28 29 David C. Vladeck, Georgetown University Law Center, Institute for Public Representation, Washington, D.C., for amicus curiae Connecticut Public Interest Research Group. 30 31 JOHN M. WALKER, JR., Circuit Judge: In this appeal from a November 7, 2005 judgment of the 32 United States District Court for the Northern District of New 33 York (David N. Hurd, Judge), we decide whether the Student 34 Association ( SA ) of the State University of New York at Albany -2- 1 ( SUNY-Albany ) violated the First Amendment by using an advisory 2 student referendum to determine how to allocate funds from a 3 mandatory student activity fee among student organizations. 4 district court held that it did. 5 the State Univ. of N.Y. at Albany, 399 F. Supp. 2d 136 (N.D.N.Y. 6 2005). The See Amidon v. Student Ass n of For the reasons that follow, we agree. 7 BACKGROUND 8 Every semester, SUNY-Albany collects a mandatory student 9 activity fee of $80 from each student, generating approximately 10 $1.69 million annually. 11 mandatory fee cannot register for classes and has his transcript 12 withheld. 13 Plaintiffs Eric Amidon and Winston Brownlow enrolled at SUNY- 14 Albany in Fall 2001 and have paid the student activity fee each 15 semester. 16 A student who fails to pay this N.Y. Comp. Codes R. & Reg. tit. 8, § 302.14(c)(2). The SA distributes the funds to recognized student 17 organizations ( RSOs ), of which there are more than one hundred. 18 A regulation issued by SUNY s Board of Trustees requires the SA 19 to make funding allocation decisions in a viewpoint-neutral 20 manner. 1 See id. § 302.14(c)(1)(i).1 Since August 2003, the SA The collection of mandatory student activity fees is, in the first instance, authorized by the Board of Trustees. See N.Y. Comp. Codes R. & Reg. tit. 8, § 302.14(a). While the Trustees regulations place some constraints on the manner in which funds may be allocated, the distribution of mandatory fees is largely delegated to student governments. At SUNY-Albany, the SA has adopted provisions in its Constitution and Bylaws establishing procedures for allocating funds. We note that the applicable -3- 1 Constitution has included (1) a requirement that all SA 2 committees and the SA Senate adhere to the principle of viewpoint 3 neutrality, (2) a definition of viewpoint neutrality, (3) a rule 4 that any SA decision violating viewpoint neutrality is invalid 5 and null and void, (4) a standard evaluation form for 6 submission by RSOs in support of funding requests,2 (5) 7 requirements of public disclosure upon an RSO s request of any 8 documents relating to a decision denying funding and written 9 statements of the reasons for the denial, and (6) hearing 10 procedures for new and previously unfunded RSOs. 11 808, 809. 12 13 SA Const. §§ RSOs generally must re-apply for funding every year through one of the following methods: 14 1. Budget Submission: The RSO may present a budget to the 15 Student Association, which the SA Senate may adopt, 16 reject, or modify. 17 2. 18 Student Referendum: The RSO may seek funding based upon a campus-wide student referendum in which the RSO asks regulations, the SA Constitution and Bylaws, have been amended during the pendency of this suit. For the purposes of deciding this appeal, we need not discuss the history of those amendments in detail; this opinion addresses only the iteration of the scheme governing the allocation of student fees that was current as of the district court s decision. 2 A standard evaluation form requires an RSO to disclose its purpose and function, the size of its membership, whether it receives funding from other sources, whether it collects dues from members, whether it collects fees from events, and its proposed budget and expenses to date. -4- 1 whether all students should pay a certain dollar 2 amount to that organization out of the student 3 activity fund. 4 either obtain a two-thirds vote of the SA Senate or 5 submit a petition signed by at least 15% of the student 6 body. 7 To proceed by referendum, the RSO must In September 2004, the Trustees amended the regulation 8 governing student activity fees to mandate that while advisory 9 referenda of the student body were permissible in making funding 10 decisions, such referenda could not be binding on the student 11 government. 12 302.14(c)(1)(i). 13 implementing this rule. 14 referenda only to advise [it] regarding the appropriate level of 15 funding and not to determine whether a group will or will not be 16 funded. 17 nonexclusive set of criteria, to be discussed later, that 18 determine whether the SA should employ the assistance of an 19 advisory referendum to help calculate a particular level of 20 funding. 21 See N.Y. Comp. Codes R. & Reg. tit. 8, § In March 2005, the SA adopted Bylaws Pursuant to the Bylaws, the SA may use SA Bylaws § 517.1-.2. The SA Bylaws set forth a SA Bylaw § 517.5. Two organizations receive what the plaintiffs characterize 22 as preferential treatment. Dippikill, a non-profit corporation 23 that provides an 861-acre property to the school for various 24 activities, is the subject of an advisory referendum at least 25 every four years and most recently received an allocation of -5- 1 $210,000. The second is New York Public Interest Research Group 2 ( NYPIRG ), an RSO whose mission is to train students in the 3 skills of civic engagement and advocacy through hands-on 4 experience. 5 as nonpartisan voter registration, homelessness awareness and 6 service campaigns, and a book exchange. 7 nonpartisan, plaintiffs assert that it has a liberal agenda and 8 an ideological bent. 9 assessed every four years by an advisory referendum guaranteed to It provides numerous services to SUNY-Albany such Although it claims to be Like Dippikill, its funding is re- 10 NYPIRG by the SA.3 11 Spring 2003, the students approved, and the SA Senate allocated, 12 $5 of each student s $80 fee to NYPIRG. In the most recently reported referendum in 13 Amidon and Brownlow decided to counter NYPIRG s liberal 14 agenda by establishing the conservative RSO College Action 15 Leadership League of New York ( CALL-NY ). 16 affordable and accessible higher education and environmental 17 problems facing the world and hopes to solve consumer and 18 environmental problems by unleashing the power of the free 19 enterprise system. 20 the SA Senate requesting a referendum to the student body on 21 whether $5 per student per semester should be allocated to CALL- 3 CALL-NY focuses on In Spring 2003, Amidon presented a bill to The parties dispute whether this referendum was advisory prior to the 2004 amendments to the New York regulations that resulted in the current SA bylaws. We agree with the district court that this factual dispute is immaterial to the resolution of this case. Amidon, 399 F. Supp. 2d at 148 n.10. -6- 1 NY. 2 findings. 3 school year by submitting a proposed budget to the SA, and it was 4 allocated $1,200. 5 The SA Senate rejected the bill without adopting any Undaunted, CALL-NY also sought funding for the 2003-04 Plaintiffs filed suit against the SA on March 9, 2004, 6 alleging violations of their constitutional rights. The 7 following day, prior to serving the complaint, Amidon once again 8 formally requested that the SA Senate approve a referendum for a 9 $5 per student per semester allocation to CALL-NY. The SA Senate 10 voted unanimously not to place the CALL-NY funding question on a 11 referendum ballot. 12 March 9, 2004 summons and complaint upon the SA Senate president. 13 14 A CALL-NY representative then served the CALL-NY did not otherwise apply for funding for the 2004-05 school year. 15 The complaint asserted five claims against the SA under 42 16 U.S.C. § 1983. 17 the use of student referenda to fund and defund RSOs facially 18 violated the First Amendment.4 4 Claim I, the focus of this appeal, charged that Plaintiffs sought, inter alia, Claim II asserted facial and as-applied challenges under the First Amendment to NYPIRG s guaranteed access to student referenda. Claim III alleged that the SA violated the Equal Protection Clause by guaranteeing NYPIRG access to the student referenda while not doing so for other RSOs. Claim IV alleged that the SA violated the Equal Protection Clause by requiring all RSOs except NYPIRG to re-apply for funding every year. Finally, claim V asserted an as-applied challenge under the First Amendment claiming that the SA Senate was impermissibly vested with unbridled discretion to determine whether an RSO s funding would be the subject of a student referendum. In light of its grant of summary judgment to plaintiffs on -7- 1 declaratory and injunctive relief, nominal damages of $1 for the 2 violation of their constitutional rights, a refund of $5 per 3 plaintiff per semester of their mandatory student activity fees, 4 and attorney s fees. 5 Plaintiffs moved for summary judgment. NYPIRG, believing 6 that plaintiffs primary goal was to defund it, sought, and was 7 granted, permission to intervene. 8 motions for summary judgment. 9 NYPIRG and the SA filed cross- The district court granted summary judgment to plaintiffs on 10 claim I. 11 held that SUNY-Albany had created a public forum in the form of a 12 fund to support student speech, for which viewpoint neutrality 13 was required. 14 advisory referenda was facially viewpoint-based because it 15 necessarily reflect[ed] the majority view of the value of the 16 RSO on the ballot, did not serve as a proxy for the amount of 17 funding needed, and simply informed the decision makers of public 18 opinion about the group applying for funding. 19 20 21 Amidon, 399 F. Supp. 2d at 153. Id. at 147-48. The district court It concluded that the use of Id. at 150. NYPIRG and the SA timely appealed, and plaintiffs crossappealed. DISCUSSION their first claim, the district court dismissed claims II, III, and V. See Amidon, 399 F. Supp. 2d at 151-52. The district court dismissed claim IV without prejudice because neither party presented sufficient evidence to warrant granting summary judgment. Id. at 153. -8- 1 We review the district court s grant of summary judgment de 2 novo. Town of Southold v. Town of East Hampton, 477 F.3d 38, 46 3 (2d Cir. 2007). 4 no genuine issue as to any material fact and . . . the moving 5 party is entitled to a judgment as a matter of law. 6 Civ. P. 56(c). 7 most favorable to the nonmoving party, drawing all inferences and 8 resolving all ambiguities in its favor. 9 v. Nomura Asset Capital Corp., 424 F.3d 195, 205 (2d Cir. 2005). Summary judgment is appropriate when there is Fed. R. We must construe all the evidence in the light LaSalle Bank Nat l Ass n 10 I. Constitutionality of the Use of Advisory Referenda 11 We are asked to rule on the constitutionality of the SA s 12 referendum policy in the context of a facial challenge. 13 raising a facial challenge, plaintiffs face a heavy burden. 14 Nat l Endowment of the Arts v. Finley, 524 U.S. 569, 580 (1998) 15 (quoting Rust v. Sullivan, 500 U.S. 173, 183 (1991)). 16 invalidation is strong medicine, Lopez Torres v. N.Y. State Bd. 17 of Elecs., 462 F.3d 161, 205 (2d Cir. 2006), and is used 18 sparingly and as a last resort. 19 (quoting Broderick v. Oklahoma, 413 U.S. 601, 613 (1973)). 20 prevail, plaintiffs must demonstrate a substantial risk that 21 application of the challenged practice or provision will lead to 22 a First Amendment violation. 23 24 In Facial Finley, 524 U.S. at 580 To See id. Plaintiffs challenge to the use of advisory referenda is based upon the jurisprudence of compelled speech. -9- After 1 discussing compelled speech doctrine in general, we will turn to 2 its application to mandatory student activity fees. 3 4 A. Viewpoint Neutrality and Student Activity Fees The First Amendment s guarantee of freedom of speech 5 includes both the right to speak freely and the right to refrain 6 from speaking at all. 7 (1977); see also Riley v. Nat l Fed n of the Blind of N.C., 487 8 U.S. 781, 796-97 (1988). 9 constitutional constellation, it is that no official, high or Wooley v. Maynard, 430 U.S. 705, 714 If there is any fixed star in our 10 petty, can prescribe what shall be orthodox in politics, 11 nationalism, religion, or other matters of opinion or force 12 citizens to confess by word or act their faith therein. 13 State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). 14 Consequently, individuals may hold a point of view different 15 from the majority and . . . refuse to foster . . . an idea they 16 find morally objectionable. W. Va. Wooley, 430 U.S. at 715. 17 Because an individual should be allowed to believe as he 18 sees fit without coercion from the state, his First Amendment 19 interests are implicated when the state forces him to contribute 20 to the support of an ideological cause he opposes. See Abood v. 21 Detroit Bd. of Educ., 431 U.S. 209, 234-35 (1977). In 22 articulating this right, the Supreme Court has acknowledged 23 Thomas Jefferson s view that to compel a man to furnish 24 contributions of money for the propagation of opinions which he 25 disbelieves[] is sinful and tyrannical. -10- Id. at 234 n.31 1 (quoting I. Brant, James Madison: The Nationalist 354 (1948)) 2 (internal quotation marks omitted). 3 held that teachers unions and state bar associations, to which 4 members of those professions are required to pay dues, cannot 5 expend objecting members dues on ideological activities not 6 germane to their purposes. 7 unions); Keller v. State Bar of Cal., 496 U.S. 1, 13-14 (1990) 8 (state bar associations). 9 Accordingly, the Court has See id. at 235-36 (teachers The Court has applied similar principles to restrict the 10 ability of public universities to expend funds that students are 11 required to contribute in the form of activity fees. 12 Regents of the University of Wisconsin v. Southworth, 529 U.S. 13 217, 222-23 (2000) [hereinafter Southworth I], the University of 14 Wisconsin supported the activities of RSOs through a fund to 15 which every student was required to contribute. 16 the RSO could obtain funding was through binding student 17 referenda on whether the RSO should be funded or defunded. 18 at 224-25, 235. 19 violative of their rights to freedom of expression and 20 association because it forced them to contribute to speech 21 activities with which they disagreed. In Board of One of the ways Id. Some students challenged the process as Id. at 227. 22 The Court upheld the fee, but, for a number of reasons, 23 declined to apply the germaneness standard it used to evaluate 24 the expenditures of teachers unions and bar associations. 25 that a university seeks, as part of its mission, to stimulate -11- Given 1 the whole universe of speech and ideas, the standard appeared 2 unworkable. 3 deference to the school s judgment, stating that it is not for 4 the Court to say what is or is not germane to the ideas to be 5 pursued in an institution of higher learning. 6 was also concerned that its disposition could make the 7 university s program ineffective. 8 did not require the university to allow each student to list 9 those causes which he or she will or will not support. Id. at 232. The Court also afforded a degree of Id. Id. The Court As a result, the Court Id. The 10 Court instead imposed a less onerous safeguard for objecting 11 students borrowed from its analogous public forum cases: Funds 12 from a mandatory student activity fee to support student speech 13 must be allocated in a viewpoint-neutral way. 14 233-34. 15 Id. at 229-30, The Court left undecided whether the use of a binding 16 referendum to fund or defund an RSO violated the First Amendment. 17 Id. at 235-36. 18 19 20 21 22 23 24 25 26 27 28 29 30 In dicta, however, the Court stated: 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, for instance, does not depend upon majoritarian consent. That principle is controlling here. Southworth I, 529 U.S. at 235 (emphasis added). B. Use of Advisory Referenda -12- 1 In this case, we are asked to decide whether, on its face, 2 the SA s advisory student referenda provisions violate Southworth 3 I s requirement of viewpoint neutrality. 4 As a preliminary matter, we agree with the district court 5 that our decision in Carroll v. Blinken, 957 F.2d 991 (2d Cir. 6 1992), is not controlling. 7 Albany and NYPIRG because, inter alia, NYPIRG was allocated funds 8 every two years from a pool of student activity fees based upon 9 an advisory student referendum. In that case, students sued SUNY- Id. at 993-94. Although we held 10 that the students funding of NYPIRG s activities amounted to 11 compelled speech and association, id. at 997, we concluded with 12 scant analysis that use of the referendum was content-neutral. 13 Id. at 999. 14 Court s decision in Southworth I which cast doubt on the use of 15 referenda and analyzed the funding provision as a regulation of 16 the non-speech elements of expressive conduct and a time, 17 place, and manner restriction. 18 classes of cases). 19 Carroll and the Supreme Court s intervening decision, we are free 20 to decide anew whether the SA s use of advisory student referenda 21 discriminates based on viewpoint. 22 N.Y., 435 F.3d 78, 93 (2d Cir. 2006). 23 24 25 Importantly, we decided Carroll prior to the Supreme 1. See id. at 999 (citing to both Given our lack of full explanation in See Mastrovincenzo v. City of Allocation Versus Funding Defendants argue that because the advisory referenda at issue help to determine the amount of funding an RSO receives -13- 1 rather than whether to fund at all, the referenda do not 2 implicate the First Amendment concerns articulated in Southworth 3 I. 4 level of funding can have the same impact as no funding at all, 5 we find that this factual difference has no constitutional 6 significance. 7 Because, given the nature of the public forum at issue, a low A pool of student activity fees to fund private speech is a 8 limited public forum in which forum principles apply. 9 Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 10 819, 830 (1995). There may be restrictions on speech in a 11 limited public forum so long as they are viewpoint-neutral and 12 reasonable in light of the forum s purpose, see Make the Road by 13 Walking, Inc. v. Turner, 378 F.3d 133, 143 & n.4 (2d Cir. 2004); 14 see also Bronx Household of Faith v. Bd. of Educ., 331 F.3d 342, 15 351 (2d Cir. 2003), and do not serve as a facade for viewpoint 16 discrimination, Cornelius v. NAACP Legal Def. & Educ. Fund, 473 17 U.S. 788, 812 (1985). 18 discriminatory manner is as impermissible as the denial of access 19 to a physical forum in a viewpoint-discriminatory manner. 20 Good News Club v. Milford Cent. Sch., 533 U.S. 98, 110 (2001); 21 see also Rosenberger, 515 U.S. at 830-31, 835. 22 on how funds are allocated is compelled partly by the danger to 23 liberty when the state sets out to classify speech and the risk 24 that protected speech will be chilled when school officials cast 25 disapproval on particular viewpoints of its students . . . in one The denial of funding in a viewpoint- -14- See This proscription 1 of the vital centers for the Nation's intellectual life, its 2 college and university campuses. 3 836. 4 See Rosenberger, 515 U.S. at A university s viewpoint-discriminatory decision respecting 5 how much funding to allocate to an RSO raises the same concerns 6 as a viewpoint-discriminatory decision respecting whether to fund 7 an RSO at all. 8 as an expression of approval or disapproval of the group s 9 message. The level of funding a group receives may serve And the amount allocated to a group, whether a lot or a 10 little, can skew debate on issues on which the group advocates a 11 position. 12 may not be much different than a complete denial of funding. 13 parallel lies in the realm of campaign contributions: In this context, a comparatively low level of funding A 14 15 16 17 18 19 20 21 22 23 Buckley v. Valeo, 424 U.S. 1, 19 (1976) (per curiam); see also 24 Fed. Election Comm n v. Nat l Conservative Political Action 25 Comm., 470 U.S. 480, 493 (1985). 26 A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today s mass society requires the expenditure of money. The defendants argue that RSOs only have an equal 27 opportunity to be considered for funding, but not a right to 28 equal funding, and therefore the First Amendment only requires 29 that RSOs have access to the fund. -15- While we do not disagree 1 with the defendants predicates, their conclusion misses the 2 point of Southworth I: A funding decision based on the speaker s 3 viewpoint is impermissible irrespective of whether the harmed RSO 4 had the same right as any other RSO to be considered for 5 funding. 2. 6 7 Whether the Referenda Reflect Viewpoints Viewpoint discrimination is a subset or particular instance 8 of the more general phenomenon of content discrimination, in 9 which the government targets not subject matter but particular 10 views taken by speakers on a subject. 11 829, 831. 12 case reflects the student body s majority opinion of the value or 13 popularity of an RSO s speech. 14 in its brief when it states that [a]ny RSO may use such an 15 advisory referendum in an effort to demonstrate widespread 16 support among the student body for the services provided by an 17 RSO. 18 Rosenberger, 515 U.S. at We have no doubt that the student referendum in this Indeed, the SA concedes as much SUNY Blue Br. at 36. It is apparent that any contrary or minority view is at a 19 disadvantage because the referendum simply asks the student body 20 whether an RSO is entitled to a certain amount of funding. 21 example, according to an affidavit of NYPIRG s executive 22 director, NYPIRG s referendum was used to gauge whether there is 23 continued support from the student body for the educational 24 programming services and resources provided by NYPIRG. 25 Similarly, the referenda submitted by CALL-NY asked for a set -16- For 1 amount of funding per student per semester. Viewpoint 2 discrimination arises because the vote reflects an aggregation of 3 the student body s agreement with or valuation of the message an 4 RSO wishes to convey. 5 Movement, 505 U.S. 123, 134 (1992) (concluding that a fee for 6 holding an assembly or parade was based on the content of an 7 applicant s speech because an administrator must necessarily 8 examine the content of the message that is conveyed, [and] 9 estimate the response of others to that content (internal Cf. Forsyth County v. Nationalist 10 citation omitted)); Ward v. Rock Against Racism, 491 U.S. 781, 11 791 (1989). 12 We reject the defendants argument that there is no 13 viewpoint discrimination here because some RSOs simply do not 14 generate any real public interest. 15 Supreme Court s decision in Arkansas Educational Television 16 Commission v. Forbes, 523 U.S. 666 (1998). 17 public television network could exclude an independent 18 congressional candidate who lacked any real public support from a 19 televised debate that included the Democratic and Republican 20 candidates. 21 televised debate was a nonpublic forum in which viewpoint 22 discrimination was prohibited, it concluded that the candidate s 23 exclusion was not viewpoint discrimination because he was 24 excluded not because of his viewpoint but because he had 25 generated no appreciable public interest. Id. at 682-83. Defendants rely on the Forbes held that a Although the Court held that the -17- Id. at 682. 1 Forbes theory of viewpoint neutrality is distinguishable. 2 The Court explained that when the network excluded Forbes from 3 the debate, 4 5 6 7 8 9 10 11 12 523 U.S. at 683. 13 between a candidate s viewpoint and the degree of interest in 14 hearing the candidate, and concluded, in that context, that one 15 was not necessarily a proxy for the other. 16 objective lack of support, not . . . platform, was the criterion. . . . A candidate with unconventional views might well enjoy broad support by virtue of a compelling personality or an exemplary campaign organization. By the same token, a candidate with a traditional platform might enjoy little support due to an inept campaign or any number of other reasons. Forbes drew a distinction, perhaps subtle, Unlike Forbes, the vote in a student body referendum 17 substantially captures one thing: the student body s valuation of 18 the RSO. 19 debate in favor of charismatic candidates or well-run campaigns, 20 the referendum policy creates a substantial risk that funding 21 will be discriminatorily skewed in favor of RSOs with 22 majoritarian views. 23 acceptable principle for allocating resources in a limited public 24 forum. 25 529 U.S. at 235. While the policy at issue in Forbes may have skewed Favoritism of majority views is not an See Rosenberger, 515 U.S. at 835; see also Southworth I, 26 27 28 29 3. The Advisory Nature of the Referenda These viewpoint-discriminatory referenda have no place in the funding allocation process, which requires that minority -18- 1 views [be] treated with the same respect as are majority views. 2 Southworth I, 529 U.S. at 235. 3 before the district court that the referendum really serves no 4 purpose in a viewpoint-neutral decision making process. 5 399 F. Supp. 2d at 151. 6 hand, can place minority views at the mercy of the majority. 7 See Sante Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 304 (2000). 8 The SA therefore has no reason to use these purposeless but 9 discriminatory referenda in its allocation decisions. 10 11 The SA conceded at oral argument Amidon, Use of the referendum, on the other And we think this is true even when the referenda are advisory. The defendants argue that the First Amendment is offended by 12 the student referenda only when their viewpoint-discriminatory 13 results require a particular funding decision; conversely, they 14 argue, when the referenda are only advisory, the SA is free to 15 disregard the results and maintain viewpoint neutrality. 16 disagree: While a decision maker is free to disregard a 17 viewpoint-discriminatory, advisory referendum, this practice 18 nevertheless injects a substantial risk of undetectable viewpoint 19 discrimination into the allocation process. 20 We An analogous situation may be found in the constitutional 21 proscription against granting unbridled discretion in the prior 22 restraint context. 23 because it allows officials to suppress viewpoints in 24 surreptitious ways that are difficult to detect. 25 County, 505 U.S. at 130-31; see also Thomas v. Chicago Park The Court prohibits unbridled discretion -19- See Forsyth 1 Dist., 534 U.S. 316, 323 (2002). In order to make decisions 2 granting or denying permits subject to effective judicial review, 3 there must be adequate standards to guide the official s 4 decision. 5 176 (2d Cir. 2006) (quoting Thomas, 534 U.S. at 323). 6 do not require perfect clarity and precise guidance, Ward, 491 7 U.S. at 794; see also Field Day, 463 F.3d at 179, a law 8 subjecting speech to a prior restraint must, as a prophylactic 9 matter, contain narrow, objective, and definite standards to Field Day, LLC v. County of Suffolk, 463 F.3d 167, While we 10 guide the licensing authority. Forsyth, 505 U.S. at 131 11 (quoting Shuttlesworth v. Birmingham, 394 U.S. 147, 150-51 12 (1969)). 13 Although the defendants are correct that the Supreme Court 14 has not incorporated the rule against unbridled discretion into 15 the requirement of viewpoint neutrality, the Seventh Circuit s 16 decision in Southworth on remand from the Supreme Court 17 illustrates the appropriateness of such a rule. 18 v. Bd. of Regents of the Univ. of Wis., 307 F.3d 566, 578 (7th 19 Cir. 2002) [hereinafter Southworth II]. 20 the plaintiff had standing to mount a facial challenge to the 21 university s program, the Seventh Circuit held that the 22 prohibition against unbridled discretion is a component of the 23 viewpoint-neutrality requirement. 24 engrafted this requirement onto Southworth I s viewpoint- 25 neutrality test because of the risks of viewpoint discrimination -20- See Southworth In determining whether Id. at 579. The court 1 that attend unbridled discretion and because of the Supreme 2 Court s application of forum principles to student activity 3 funds. 4 Id. at 578-80. While there is no need for us to hold that unbridled 5 discretion in general violates Southworth I s call for viewpoint 6 neutrality, the use of these advisory referenda raises concerns 7 similar to those in Southworth II. 8 incorporated into the RSO funding process provides the SA Senate 9 with a window into how the student body has valued an RSO, A student referendum 10 increasing the risk that it will make a viewpoint-discriminatory 11 decision to appease its electoral constituents. 12 referendum incorporated in the funding process is only advisory, 13 courts cannot tell the degree to which the referendum infected 14 the SA s decision. 15 Because the The Supreme Court has suggested that the use of referenda 16 might be constitutional depending upon what protection . . . 17 there is for viewpoint neutrality. 18 at 235. 19 discriminatory advisory referendum from tainting the allocation 20 process. 21 provides the following nonexclusive criteria to determine whether 22 the SA should use a referendum to determine funding: 23 1. See Southworth I, 529 U.S. But here there are no effective safeguards to prevent a The defendants point to SA Bylaw § 517.5, which [W]hether the organization can demonstrate that it 24 will expend funds for the enrichment of campus life at 25 [SUNY-]Albany -21- 1 2. 2 3 [W]hether the organization can provide services that complement the educational mission of [SUNY-]Albany 3. [W]hether the organization can demonstrate that it has 4 undertaken successful events and activities in the 5 past 6 4. 7 [W]hether the organization maintains a constitution or bylaws 8 5. [W]hether the organization is directed by students 9 6. [W]hether the organization can demonstrate sufficient 10 student interest in its activities to warrant a 11 particular level of funding 12 Just as written criteria alone do not ensure that an 13 official s discretion is adequately bridled, Beal v. Stern, 184 14 F.3d 117, 126 n.6 (2d Cir. 1999), the foregoing criteria do not 15 save the use of advisory referenda. 16 are nonexclusive, there is a disconcerting risk that the SA could 17 camouflage its discriminatory use of the referenda through post- 18 hoc reliance on unspecified criteria. 19 Plain Dealer Publ g Co., 486 U.S. 750, 757-58 (1988). 20 the enumerated criteria, factors (1) and (2) are too vague and 21 pliable to effectively provide the constitutional protection of 22 viewpoint neutrality required by Southworth I. 23 to see how viewpoint-discriminatory referenda can be saved by a 24 nonexclusive set of safeguards, some of which are so indefinite -22- First, because the criteria See City of Lakewood v. Second, of In sum, we fail 1 as to be meaningless and thus incapable of providing guidance to 2 student decision makers. 3 The requirement that each RSO complete a standard evaluation 4 form, see SA Bylaw § 513.1, also does not help. While it 5 provides useful information to the SA, the parties point to no 6 standards governing its use. 7 Finally, the SA Constitution s general requirement that 8 funding decisions be viewpoint-neutral is insufficient to salvage 9 the process. SA Const. § 808. While it is important and useful 10 for the SA to acknowledge the obligations imposed by Southworth 11 I, the bare statement without meaningful protections is 12 inadequate to honor its commands. 13 identify covert viewpoint discrimination, nor does it prevent 14 self-censorship by timid speakers who are worried that officials 15 will discriminate against their unorthodox views notwithstanding 16 constitutional proscriptions. 17 578-79. 18 II held that the student association was not vested with 19 unbridled discretion because the university had an express policy 20 prohibiting viewpoint discrimination, sanctions for the violation 21 of viewpoint neutrality, and imposed procedural requirements for 22 hearings, see id. at 587-88, all of which are present here. 23 we do not necessarily disagree with that holding, as far as it 24 goes. It does nothing to help courts Cf. Southworth II, 307 F.3d at We acknowledge that the Seventh Circuit in Southworth And But there was no advisory referendum policy at issue in -23- 1 that case. 2 association had unbridled discretion to make funding decisions. 3 The question was limited to whether the student The defendants argue that deference is due to the manner in 4 which schools accomplish their educational missions. See, e.g., 5 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) 6 (upholding the censorship of a high school newspaper where it was 7 reasonably related to legitimate pedagogical concerns ); Bethel 8 Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685-86 (1986) 9 (upholding the disciplining of a high school student for a 10 sexually explicit speech at a school assembly). 11 Hazelwood explicitly reserved the question of whether the 12 substantial deference shown to high school administrators was 13 appropriate with respect to school-sponsored expressive 14 activities at the college or university level, 484 U.S. at 273 15 n.7, where the relation between students and their schools is 16 different and at least arguably distinguishable. 17 Southworth I, 529 U.S. at 238 n.4 (Souter, J., concurring). 18 Southworth I, the Supreme Court established the appropriate 19 degree of deference owed to universities in implementing funding 20 programs by imposing a requirement of viewpoint neutrality rather 21 than germaneness. 22 the SUNY-Albany additional latitude. 23 See id. at 232-33. But cases like See In We see no reason to grant The defendants need not be troubled that our views of the 24 matter would prevent a university from allocating its scarce 25 monetary resources unevenly among RSOs. -24- The demand for proceeds 1 from SUNY-Albany s student activity fund will undoubtedly exceed 2 supply. 3 757, 772 (7th Cir. 2004) [hereinafter Southworth III]. 4 economic scarcity cannot justify viewpoint discrimination in 5 funding student activities, Rosenberger, 515 U.S. at 835, we have 6 no concern with differential funding so long as the allocation 7 decisions are made without regard to the recipients viewpoints. Southworth v. Bd. of Regents of Univ. of Wis., 376 F.3d While 8 SUNY-Albany is therefore free to allocate based upon 9 neutral, objective criteria, see Rosenberger, 515 U.S. at 835; 10 Southworth II, 307 F.3d at 595, that ultimately have a disparate 11 impact on different viewpoints so long as the university s 12 purpose is not to discriminate based on viewpoint. 13 Scouts of Am. v. Wyman, 335 F.3d 80, 93-94 (2d Cir. 2003). 14 Because an RSO s financial needs do not necessarily reflect its 15 viewpoint, the university does not impermissibly distort[] [its] 16 marketplace of ideas by considering those needs. 17 v. Wash. Educ. Ass n, 127 S. Ct. 2372, 2381 (2007). 18 therefore consider the varying costs RSOs will face in 19 communicating their messages and providing their services, such 20 as the size of space needed or the costs of distributing programs 21 to attendees. 22 demands an amount of funding that does not genuinely reflect its 23 costs and needs, the SA is free to provide less. 24 university must ensure that the allocation decision is based upon 25 an RSO s objective financial needs. See Boy Cf. Davenport See Southworth II, 307 F.3d at 595. -25- The SA may If an RSO But the 1 Consistent with public forum principles, our decision does 2 not foreclose the use of advisory referenda that are reasonable 3 in light of the forum s purpose and viewpoint neutral. 4 example, we see no impediment to using an advisory referendum 5 (or, perhaps more aptly labeled, a survey) to ascertain how many 6 students anticipate attending a specific event for which an RSO 7 seeks funding as a means of assessing that RSO s prospective 8 costs. 9 an RSO should receive a certain amount of funding, plainly For The referendum at issue here, which asks simply whether 10 crosses the line and fails to provide the protection of viewpoint 11 neutrality the constitution requires. 4. 12 Scrutiny 13 14 The Use of Advisory Referenda Under Strict Because the use of the advisory referenda at issue here 15 amounts to viewpoint discrimination, to pass constitutional 16 muster this practice must survive strict scrutiny, cf. Boos v. 17 Barry, 485 U.S. 312, 321 (1988), which requires that the policy 18 be narrowly tailored to serve a compelling governmental interest, 19 Hotel Employees, 311 F.3d at 545; see also R.A.V., 505 U.S. at 20 395; Hobbs v. County of Westchester, 397 F.3d 133, 149 (2d Cir. 21 2005). 22 The defendants do not argue that the advisory referenda 23 serve a compelling purpose; rather, they argue that the SA is 24 free to disregard them to the extent they are viewpoint- 25 discriminatory. Nor is there a meaningful claim that they are -26- 1 narrowly tailored to any compelling interest. Consequently, the 2 district court properly granted summary judgment to plaintiffs 3 and denied summary judgment to the SA and NYPIRG. 4 II. Use of Binding Referenda in Allocating Funds to NYPIRG 5 Plaintiffs argue on cross-appeal that the SA violated the 6 First Amendment by using a binding referendum to allocate funding 7 to NYPIRG. 8 untimely in filing their cross-appeal notice. We do not reach this issue because plaintiffs were 9 A cross-appellant must file within (1) 30 days of entry of 10 judgment or (2) 14 days after the filing of the first notice of 11 another party, whichever is later. 12 also In re Johns-Manville Corp., 476 F.3d 118, 120 (2d Cir. 13 2007). 14 NYPIRG filed their notices of appeal on December 6, 2005. 15 Plaintiffs filed their cross-appeal notice on January 5, 2006, 16 beyond the time limit. 17 whether the non-statutory timing requirement for filing a cross- 18 appeal is jurisdictional after Bowles v. Russell, 127 S. Ct. 19 2360, 2365-66 (2007) (holding that statutory time limits on 20 filing notices of appeal are jurisdictional), we must strictly 21 enforce the time limit if an adverse party invokes it, In re 22 Johns-Manville Corp., 476 F.3d at 121, 123-24, as the defendants 23 have done here. 24 Fed. R. App. P. 4(a)(3); see Judgment was entered on November 7, 2005, and the SA and Even if it remains an open question CONCLUSION -27- 1 2 For the foregoing reasons, the judgment of the district court is AFFIRMED. -28-

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