Chancellors Review and Decision regarding Viewpoint Neutrality Appeal by MultiCultural Student Coalition April 13, 2012

The MultiCultural Student Coalition (MCSC) appealed the decision of the Student Services Finance Committee (SSFC) to deny MCSC eligibility for segregated fee funding through the General Student Services Fund (GSSF). University of Wisconsin System Policy F50 authorizes me, as Chancellor, to hear such appeals if alleging a violation of viewpoint neutrality. The appeal was initiated by a 14-page letter outlining numerous issues some related to the appeal and some related to other issues together with a letter from SSFC Representative Justin Bloesch. I also met Friday, March 30 with MCSC representatives to provide an opportunity to identify the specific bases for the appeal as it relates to the allegation of a viewpoint neutrality violation. Appeals of this kind consist of a review of the underlying record. In this instance, the documents reviewed included: SSFC waiver; MCSCs waiver application; MCSCs complaint to the Student Judiciary (SJ) re: waiver; MCSCs eligibility application; SSFCs written decision; SSFC members lobbying disclosures; SSFC members written eligibility evaluation forms; minutes of SSFC meetings held October 17, 20, 24 and November 3, 7, 14; SSFCs internal appeal decision; SSFC briefs to the SJ; MCSC briefs to the SJ; SJ decisions on all MCSC matters for this term; Associated Students of Madison (ASM) Constitution and Bylaws; SSFC standing rules; and SSFC Eligibility Criteria. The road to this appeal began in September 2011. For the fall 2011 GSSF process, SSFC required any group seeking funding in an amount over $250,000 to file a waiver by September 19, 2011 at noon. MCSC had plans to request $1.2 million, so it filed a waiver on September 19, 2011 at 12:45 p.m. SSFC deemed the waiver late and determined that MCSC would not be able to submit its original budget to SSFC. MCSC sought relief from SSFCs decision through a complaint filed with the Student Judiciary (SJ) on September 21, 2011. The SJ found: 1) SSFC voted on the new Standing Rule too early but determined SSFC acted in good faith; 2) SSFC Chair Sarah Neibart properly deemed MCSCs waiver application late and invalid; and 3) The process by which the waiver was implemented was improper. SJ ultimately deemed the waiver process and requirement invalid, but did not remand or otherwise direct the matter to Student Council. As a result, SSFC proceeded to hear MCSCs eligibility presentation on October 17, 2011. On October 20, 2011, SSFC voted 5-7-0 to deny eligibility to MCSC on the basis that the group failed to meet the direct service criteria. Over the course of SSFC meetings held on November 3, 7 and 14, MCSC unsuccessfully sought reconsideration by SSFC and was likewise unsuccessful in overturning the result through the SSFC internal appeal process. Having exhausted those options, MCSC filed a complaint with SJ challenging SSFCs denial of MCSCs eligibility. SJ upheld SSFCs decision, finding no viewpoint neutrality violation. 1

MCSC appealed the SJ decision to an en banc panel. SJ denied the appeal, reaffirming its prior order upholding SSFCs decision. MCSC pursued other options within ASM to seek redress and eventually submitted this appeal to me. Based on its presentation at our March 30 meeting, MCSCs appeal is primarily about two issues: the waiver and the eligibility decision. I address each separately below. Where the established record and the assertions of MCSC come into conflict, my judgment weighed the record more heavily, absent concrete evidence to the contrary. As a preliminary note, MCSC expressed concern that it lacked information about the ability to appeal to the Chancellor. Any controversy over the timing of when MCSC was advised about the appeal to the Chancellor is largely moot based on the fact that I have accepted the appeal for review. Of greater concern is an apparent change in ASM Bylaws, which used to contain language outlining the fact that a group could file viewpoint neutrality appeals to the Chancellor. The current ASM bylaws no longer provide that reference. F50 requires such language, and therefore, I am directing ASM to immediately restore language to its bylaws regarding viewpoint neutrality appeals to the Chancellor. My office will also prepare specific information regarding the appeal process and share it with ASM to distribute where appropriate. I. Waiver

MCSC argues that SJ should have remanded the eligibility hearing and determination to the ASM Student Council rather than allow SSFC to conduct the eligibility hearing. MCSC bases this conclusion on its belief that SJ found SSFC violated MCSCs due process and engaged in a viewpoint neutrality violation against MCSC regarding SSFCs creation and implementation of the waiver, citing ASM Bylaw 5.07(3). A review of the SJ decision, 2011 ASM SJ 17, reveals that SJ determined that SSFC violated due process by improperly implementing the waiver. SJ made no determination that SSFC engaged in a viewpoint neutrality violation. MCSC argues that the definition of viewpoint neutral fashion in the ASM bylaws requires a finding that every violation of procedure constitutes a viewpoint neutrality violation. ASM Bylaw 2.01(2)(b) states: Viewpoint neutral fashion: A decision is made in a viewpoint neutral fashion where the decision is made: 1) in accordance with any procedural requirements for making the decision; and 2) without considering the viewpoint being expressed by the recipient of the funds. This bylaw could reasonably be interpreted as requiring procedural compliance as a necessary element of viewpoint neutrality. However, this definition of viewpoint neutrality does not comport with the definition identified in Southworth and other federal court cases. Viewpoint neutrality simply requires that a decision maker not consider a groups expressed viewpoint in making a decision regarding the group. It does not require procedural compliance. A procedural violation may, of course, be evidence of a viewpoint neutrality violation, but it does not automatically indicate or otherwise equate with a viewpoint neutrality violation. Some procedural violations are simply errors or mistakes that can be 2

easily remedied, and have no relation to a groups viewpoint. To require that any procedural violation automatically be deemed a viewpoint neutrality violation is incorrect and contrary to federal law. Even if the Bylaws appropriately defined viewpoint neutral fashion as being limited to improperly taking into consideration a groups viewpoint in making a decision regarding that group, there is no evidence or finding that SSFC considered MCSCs viewpoint in implementing the waiver. Here, SJ did not find that SSFC considered MCSCs viewpoint in creating and implementing the waiver. SJ simply found that SSFC did not properly implement the waiver specifically, SJ stated that SSFCs implementation of the waiver was not reflective of an established process and is thereby a violation of due process. (Par. 10, 2011 ASM SJ 17) As a result, there was no viewpoint neutrality violation by SSFC under the legal definition of viewpoint neutrality. However, under ASMs current bylaws, a procedural violation is not mere evidence of a viewpoint neutrality violation, but is in fact a viewpoint neutrality violation. Despite the incorrectness of this bylaw and definition, a strict application of that bylaw would have required MSCSs eligibility hearing (and any subsequent budget hearing) to be remanded to the ASM Student Council rather than SSFC. While SJ applied the correct legal definition, in the absence of ruling the ASM bylaw unconstitutional, SJ was required to apply the bylaw as it existed and remand the decision-making role to ASM Student Council. II. Eligibility Decision Three Components A. MCSC argues that SSFC lacked the authority to remove a student service from the budget and therefore could not remove MCSC from the student fee allocation. MCSC predicates its argument on the ASM Constitution, Article IX, Section 3, defining SSFC powers and duties. This section provides: a) SSFC shall recommend in writing all allocations of Segregated University Fees to the SC (Student Council). The recommendations of SSFC shall be deemed recommendations of the ASM unless the SC by two-thirds vote within four weeks of receipt amends them, rejects them or by a majority vote refers them back to SSFC. b) SSFC shall not recommend allocations unless they further the general student interest. c) No student service allocated Student Fees in one fiscal year may be deleted from the SSFC budget for the next fiscal year except (i) internal disbandment of the service, (ii) failure to apply, or (iii) by the SSFC, acting pursuant to such exceptions as may be established in the Bylaws only for the purpose of bringing the ASM Student Fee process or the service in question into compliance with federal or state law or University System policy. UW System Policy F50 and Southworth require that MCSCs interpretation of this provision be rejected. Any interpretation of this section of ASMs Constitution as creating a permanent funding stream for a GSSF group would violate the tenets of Southworth which specifically rejected criteria that the court determined gave an impermissible advantage to previously funded GSSF groups. An interpretation that prohibits SSFC from performing its function of assessing applications for GSSF funding by requiring that it continue to fund a student service just because it was included in the prior budget cannot be sustained. In fact, Section C, iii, seems to acknowledge the requirements of Southworth and UW System 3

policy by allowing SSFC to perform its duties under the GSSF process to evaluate and decide on eligibility and budget applications, even in light of the other language in this provision of the Constitution. B. MCSC argues that SSFC lacks multicultural competence and, therefore, is incapable of understanding MCSCs application and programs and how they constitute a direct service under SSFC eligibility criteria. In the GSSF eligibility process, it is incumbent on the registered student organization seeking funding to explain what it does and to meet the burden of demonstrating that it is eligible. SSFC members are required to undergo training in the GSSF process and in viewpoint neutrality, and do so each year prior to the beginning of the GSSF budget process. The viewpoint neutrality training is required by the University based on Southworths expectations. Any training beyond these expectations is at the discretion of ASM and SSFC. Establishing capacity and ability to appropriately carry out their duties does not require SSFC members to be experts in the areas of all the groups applying for funding in order for SSFC to adequately evaluate applications under the SSFC eligibility criteria. The viewpoint neutral eligibility criteria were created so that a groups viewpoint was not necessary or relevant to properly evaluate a groups activities or direct services for compliance with the GSSF eligibility criteria. Whether SSFC members possess multicultural competence by MCSCs standards does not impact SSFCs ability to interpret and apply the eligibility criteria to groups applying for funding. The group presentation and ensuing question and answer sessions at SSFC meetings allow for SSFC to seek additional information from groups and to allow groups applying for funding to elaborate on their programs and activities to demonstrate eligibility. I do not find support for MCSCs allegations and do not find any basis to overturn the SSFC decision on these grounds. C. MCSC alleges that SSFC improperly calculated and evaluated MCSCs direct services. MCSC argues that the criteria for interpreting the 50%+1 requirement for direct services under GSSF criteria were not consistently applied. More specifically, MCSC states that Cale Plamann violated viewpoint neutrality in his calculations by ignoring MCSC volunteer hours in his direct service calculation, and then influencing other SSFC members to adopt his evaluations. They cite shifts from 36% to 45% in his calculations of the percentage of time spent by MCSC in performing direct services and refer to Plamann as the loudest voice in the room that had a strong influence on SSFC members and resulted in a negative impact on MCSC. Section 2.032(3)(c) of ASM Bylaws outlines the GSSF criteria. One criterion requires that the group provide university students with a specific and identifiable direct service which requires that the service is the primary focus of the group, is aimed at reaching all university students, is educational but not credit producing, makes university students the principal focus of the direct service, and does not duplicate a substantially equivalent university program or service. In determining whether a service is the primary focus of the group, ASM bylaws define primary as a simple majority or 50% + 1. In addition, direct service is defined as a program having all the following characteristics: be available upon request by recipients, can be tailored to needs of recipients within the mission of the group, be accessible to recipients regardless of recipients participation and/or membership in group, not be an 4

individual event, series of events, publication, or a leadership development opportunity for group members. The eligibility application does not ask for specific calculations of time spent providing direct services. As result, when MCSC made its eligibility presentation, SSFC members sought clarification as to how much time MCSC spent on programs that it believed met the direct services requirement. According to the lobby disclosure forms, MCSC lobbied numerous members of SSFC, including Plamann, regarding the eligibility criteria and further clarification regarding MCSCs programs and the 50%+1 requirement. At SSFCs October 20 meeting, SSFC debated MCSCs programs, with a large portion of the discussion centered on direct services, specifically the 50%+1 requirement. The meeting minutes show that numerous SSFC members vocalized their calculations, both above 50% and below, regarding the time spent by MCSC on providing direct services. The minutes do not reveal any particular position being advocated more loudly than another. Members of SSFC heard many different points of view on the calculations and numerous members opinions on what programs met the direct service criteria. In addition, a review of the SSFC members eligibility evaluation forms identified the basis for their calculations, starting with a determination of whether a program or parts of program constituted a direct service. The October 20 meeting minutes show that some members found programs or components of the programs to be events, administrative, non-educational, or substantially similar to services provided by the university. For these reasons, they excluded those programs from direct services and the time spent on those parts of the program. From there, members worked to determine the number of hours spent on that qualifying program or parts of a program to calculate whether MCSCs direct services met the 50%+1 requirement. MCSC represented to SSFC at the October 20 meeting that the organization calculated its own direct services at 80% or, or conservatively, at 63%. MCSC elaborated that it spends 2,820 hours per month on MCSCs work overall, with 1,794 hours per month on direct services. Given the information provided by MCSC, SSFC members (including but not limited to Plamann, Bloesch, Gerstner, Posca, Nowack, and Vines), appropriately asked questions to obtain more detail from MCSC about where those 1,794 hours were spent. At the SSFC meetings, MCSC acknowledged that the percentage of time spent on providing direct services varies depending on the program. It is clear from the meeting minutes that some SSFC members deferred more to MCSCs reported numbers than others. However, even those that found in favor of eligibility did not accept MCSCs numbers as a whole (e.g., Bloesch and Vines). At the November 14 meeting to discuss its internal appeal with SSFC, MCSC stated: took notes on what Rep. Bloesch said today. Was quoting from that. Especially with Rep. Plamanns number, in order for him to prorate something, he had to take into account his own viewpoint. If youre told the flyer design was 100% direct service and it was educational, and a representative says they disagree and theyre going to prorate it down, thats taking your own viewpoint into account. It has to be that the group tells you what it is and you take it as is. (emphasis added)

This last point requires comment. MCSC confuses viewpoint with SSFCs responsibility to evaluate the information presented. A similar example can be found with Representative Nowack at the October 20 meeting where she determined MIST was a direct service based on her experience having used the program. By MCSCs definition, that would be viewpoint as well. However, it is just SSFC performing its responsibility to evaluate whether a group meets all the criteria. SSFC is not required, nor should it be expected as an evaluator and decision maker, to simply accept at face value everything a group presents or articulates as meeting the eligibility requirements. Regarding Plamanns different calculations, Plamann assessed MCSCs direct services at 36% at the October 20 meeting. He specifically noted that portions of MCSCs time were spent on matters that were administrative or non-educational, or were an event rather than a service. He attached a spreadsheet to his eligibility review form that outlined his specific attribution of MCSCs time spent on its programs and activities as discerned from MCSCs application, lobbying contacts with MCSC, and discussions with MCSC at SSFC meetings. The record shows that he opted not to include volunteer hours in the Hip Hop program. Otherwise, Plamann stated at the October 20 meeting: What I took out was a lot of stuff related to internal work toward the organization building itself and retaining itself and doing administrative things. Having a hard time seeing surveys themselves as a direct service, but the group could enlighten us. Also took out website updates, definition of a publication definitely applies. Based 100% off the numbers the group handed out. The meeting minutes from the October 20 meeting show that Representative Vines, who voted for eligibility for MCSC, came to the same conclusion as Plamann on the surveys and website. At the October 24 meeting, SSFC members who voted for MCSC eligibility petitioned other SSFC members, including Plamann, to reconsider their decisions based primarily on the characterization of MCSCs media services division as not being a direct service because it was substantially similar to a university program. While discussing the possibility of reconsideration, Plamann accepted that the media services were a direct service, but stated: that does not change my vote. I have updated and edited my spreadsheet as things have come up, and have talked with people over some of the issues between our opinions on the numbers. With a very permissive take, I was able to get up to around 45% direct services. Because of that I would not be able to vote aye on a reconsideration, so I would not propose a motion to reconsider. Our eligibility criteria have been approved but there can still be an as applied violation. Regarding the fact that we are removing and adding direct services from a groups numbers. From 2010 SJ WISPIRGs hearing, the purpose of the eligibility criteria is to provide a framework. Accepting a groups definition of something as a direct service would render SSFC useless. Believe I acted correctly barring further information.

The minutes describing the final vote indicate that members of SSFC came to different conclusions about MCSCs direct service compliance. However, I find nothing in the record that shows Plamanns review and calculation were based on MCSCs viewpoint, were without a reasoned basis, or were radically different than the methods employed by other SSFC members. In addition, his calculations were no more relied on or adopted by SSFC members than were Bloeschs or Gerstners. The final vote on October 20 shows that Gerstner and Roux set forth their separate calculations. Posca stated agreement with Gerstner and Roux. Bloesch stated his numbers and Diaz, Nowack and Bruecker stated that, after looking through Bloeschs numbers, they agreed with them. Wilson set forth his own calculations, as did Huan and Vines. I have concluded that there was no viewpoint neutrality violation by SSFC in reaching the decision to deny MCSC eligibility. It is a long-standing premise of viewpoint neutrality that different outcomes do not automatically equal a viewpoint neutrality violation. To say otherwise would require unanimous decisions or require no discretion on the part of the decision maker. Viewpoint neutrality does not forbid the analysis of information presented. It simply forbids the consideration of a groups viewpoint to reach a decision to the groups advantage or disadvantage. Based on MCSCs arguments, one could easily make the claim that other members engaged in viewpoint neutrality violations in MCSCs favor. The eligibility criteria are viewpoint neutral and serve as an appropriate constraint on SSFC. The analysis of those criteria in light of any groups (including MCSC) particular facts could appropriately vary among members and not result in a viewpoint neutrality violation. To support an allegation of a violation, there must be evidence of such improper activity in the record. Here, there is no such evidence. The SSFC members appropriately reviewed the information presented by MCSC and asked questions in order to better understand MCSCs programs and whether they met the requirements for GSSF eligibility. Plamann provided a reasonable basis for his calculations, as did others on both sides of the decision. That some disagree with Plamanns or another representatives analysis is not a viewpoint neutrality violation in and of itself. Conclusion: SSFC did not violate viewpoint neutrality in its evaluation and subsequent denial of MCSCs eligibility for GSSF funding. As a result, I cannot overturn its decision and grant eligibility to MCSC. However, SSFC was not the appropriate body to conduct the eligibility evaluation and determination. ASMs bylaws state, albeit incorrectly, that any procedural violation is by definition a viewpoint neutrality violation and, if SSFC commits a viewpoint neutrality violation, the affected groups eligibility and budget requests are to be heard by the ASM Student Council. When SJ determined that SSFCs implementation of the waiver violated due process, ASM bylaws required that SJ remand MCSCs eligibility hearing to ASM Student Council. While the ASM bylaws contain the wrong definition of viewpoint neutrality, these were the bylaws in place at the time. Absent any determination by SJ that the bylaw was unconstitutional, the bylaw had to be implemented as written. Fairness compels me to respect the existing bylaws for this current budget cycle, with the expectation that they will be properly revised prior to the next budget cycle.

Actions: 1. I remand MCSCs eligibility decision to ASM Student Council to be decided within five school days of receiving my decision. a. ASM Student Council will clearly delineate the process it will follow so that all parties are informed and may properly prepare. b. Student Council members responsible for reviewing and determining MCSCs eligibility shall receive viewpoint neutrality training if they have not done so. 2. I direct ASM to change its definition of viewpoint neutrality. UW System Policy F50 identifies that the creation of student government procedures and policies regarding appeals is to be done in consultation with the Chancellor. Bylaw 2.01(2)(b) is inconsistent with the legal definition of viewpoint neutrality, and enforcement of an erroneous interpretation of that bylaw could result in a violation of the rights of all students on campus. As viewpoint neutrality is a core appeal component, pursuant to F50 I am directing ASM to revise the definition of viewpoint neutral fashion in 2.01(2)(b) to reflect the legal definition. 3. I direct ASM to immediately restore language to its bylaws outlining the existence of a viewpoint neutrality appeal to the Chancellor. My office will also prepare specific information regarding the appeal process and share it with ASM to distribute where appropriate. Further Appeal: I shared this information with MCSC representatives at the March 30 meeting, but will repeat it here for clarity. MCSC has no individual right to appeal my decision to the President of UW System or to the Board of Regents. Regent Policy Document 30-5 authorizes student government to appeal to the Board of Regents to resolve irreconcilable differences between student government and a chancellor regarding the chancellors recommended disposition of allocable segregated fees.