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Chancellor Ward's decision regarding MCSC

Chancellor Ward's decision regarding MCSC

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Published by Signe Brewster

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Published by: Signe Brewster on Apr 16, 2012
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Chancellor’s Review
and Decision regardingViewpoint Neutrality Appeal by MultiCultural Student CoalitionApril 13, 2012
The MultiCultural Student Coalition (MCSC) appealed the decision of the Student Services FinanceCommittee (SSFC) to deny MCSC eligibility for segregated fee funding through the General StudentServices Fund (GSSF). University of Wisconsin System Policy F50 authorizes me, as Chancellor, to hearsuch 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 andsome related to other issues
together with a letter from SSFC Representative Justin Bloesch. I alsomet Friday, March 30 with MCSC representatives to provide an opportunity to identify the specific basesfor 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 documentsreviewed included:
SSFC waiver; MCSC’
s waiver application;
MCSC’s complaint to the Student Judiciary
(SJ) re: waiver;
MCSC’s eligibility application
s written decision;
SSFC members’ lobbying
SSFC members’
written eligibility evaluation forms; minutes of SSFC meetings held October17, 20, 24 and November 3, 7, 14;
SSFC’s internal appeal decision;
SSFC briefs to the SJ; MCSC briefs tothe 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 anygroup 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. SSFCdeemed the waiver late and determined that MCSC would not be able to submit its original budget toSSFC. MCSC sought relief 
from SSFC’s decision through a complaint filed with the Stu
dent 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 MCSC’s waiver
application late and invalid; and3) The process by which the waiver was implemented was improper.SJ ultimately deemed the waiver process and requirement invalid, but did not remand or otherwisedirect the matter to Student Council.As a result, SSFC proceeded to hear
MCSC’s 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 directservice criteria. Over the course of SSFC meetings held on November 3, 7 and 14, MCSC unsuccessfullysought reconsideration by SSFC and was likewise unsuccessful in overturning the result through the SSFCinternal appeal process. Having exhausted those options, MCSC filed a complaint with SJ challenging
SSFC’s denial of MCSC’s eligibility. SJ upheld SSFC’s decision,
finding no viewpoint neutrality violation.
2MCSC appealed the SJ decision to an en banc panel. SJ denied the appeal, reaffirming its prior order
upholding SSFC’s 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,
MCSC’s appeal is primarily about two issues: the
waiver and the eligibility decision. I address each separately below. Where the established record andthe assertions of MCSC come into conflict, my judgment weighed the record more heavily, absentconcrete evidence to the contrary.As a preliminary note, MCSC expressed concern that it lacked information about the ability to appeal tothe Chancellor. Any controversy over the timing of when MCSC was advised about the appeal to theChancellor is largely moot based on the fact that I have accepted the appeal for review. Of greaterconcern is an apparent change in ASM Bylaws, which used to contain language outlining the fact that agroup could file viewpoint neutrality appeals to the Chancellor. The current ASM bylaws no longerprovide that reference. F50 requires such language, and therefore, I am directing ASM to immediatelyrestore language to its bylaws regarding viewpoint neutrality appeals to the Chancellor. My office willalso prepare specific information regarding the appeal process and share it with ASM to distributewhere appropriate.
MCSC argues that SJ should have remanded the eligibility hearing and determination to the ASMStudent Council rather than allow SSFC to conduct the eligibility hearing. MCSC bases this conclusion on
its belief that SJ found SSFC violated MCSC’s due process and engaged in a viewpoint neutrality violation
inst MCSC regarding SSFC’s creation and implementation of the waiver
, citing ASM Bylaw 5.07(3). Areview of the SJ decision, 2011 ASM SJ 17, reveals that SJ determined that SSFC violated due process byimproperly 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. ASMBylaw 2.01(2)(b) states:Viewpoint neutral fashion: A decision is made in a viewpoint neutral fashion where the decision ismade:1) in accordance with any procedural requirements for making the decision; and2) 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 elementof viewpoint neutrality. However, this definition of viewpoint neutrality does not comport with thedefinition identified in Southworth and other federal court cases. Viewpoint neutrality simply requires
that a decision maker not consider a group’s expressed viewpoint in making a decision regarding the
group. It does not require procedural compliance. A procedural violation may, of course, be evidenceof a viewpoint neutrality violation, but it does not automatically indicate or otherwise equate with aviewpoint neutrality violation. Some procedural violations are simply errors or mistakes that can be
3easily remedied
, and have no relation to a group’s viewpoint
. To require that any procedural violationautomatically be deemed a viewpoint neutrality violation is incorrect and contrary to federal law. Evenif the Bylaws appropriately defined
viewpoint neutral fashion
as being limited to improperly taking
into consideration a group’s viewpoint in making a decision regarding that group, there is no evidence or
that SSFC considered MCSC’s viewpoint in implementing the waiver
. Here, SJ did not find that
SSFC considered MCSC’s viewpoint
in creating and implementing the waiver. SJ simply found that SSFCdid not properly implement the waiver
specifically, SJ stated that SSFC’s 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
ASM’s current bylaws, a procedural violation is not mere
evidence of a viewpoint neutrality violation, but is in fact a viewpoint neutrality violation. Despite theincorrectness of this bylaw and definition, a strict application of that bylaw would have required
 eligibility hearing (and any subsequent budget hearing) to be remanded to the ASM Student Councilrather than SSFC. While SJ applied the correct legal definition, in the absence of ruling the ASM bylawunconstitutional, SJ was required to apply the bylaw as it existed and remand the decision-making roleto ASM Student Council.
Eligibility Decision
Three ComponentsA.
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 andduties. 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 theASM unless the SC by two-thirds vote within four weeks of receipt amends them, rejectsthem 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 SSFCbudget for the next fiscal year except (i) internal disbandment of the service, (ii) failure toapply, or (iii) by the SSFC, acting pursuant to such exceptions as may be established in theBylaws only for the purpose of bringing the ASM Student Fee process or the service inquestion into compliance with federal or state law or University System policy.UW System Policy F50 and Southworth
require that MCSC’s interpretation of this provision be rejected.Any interpretation of this section of ASM’s Constitution as creating a permanent funding stream for a
GSSF group would violate the tenets of Southworth which specifically rejected criteria that the courtdetermined gave an impermissible advantage to previously funded GSSF groups. An interpretation thatprohibits SSFC from performing its function of assessing applications for GSSF funding by requiring thatit continue to fund a student service just because it was included in the prior budget cannot besustained. In fact, Section C, iii, seems to acknowledge the requirements of Southworth and UW System

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