The Honorable P. Kevin Castel, United States District Judge for the Southern… v. Student Ass’n of the State Univ. of N.Y. UNITED STATES COURT OF APPEALS 1 FOR THE…

* The Honorable P. Kevin Castel, United States District Judge for
the Southern District of New York, sitting by designation.
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05-6623-cv
Amidon v. Student Ass’n of the State Univ. of N.Y.
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
August Term 2006 4
(Argued: March 23, 2007 Decided: November 20, 2007) 5
Docket Nos. 05-6623-cv(L), 05-6664-cv(CON), 06-0117-cv(XAP) 6
-------------------------------------------------------x 7
ERIC AMIDON, WINSTON BROWNLOW, and COLLEGIAN ACTION LEADERSHIP 8
LEAGUE OF NEW YORK, by its President, 9
10
Plaintiffs-Appellees-Cross-Appellants, 11
-- v. -- 12
STUDENT ASSOCIATION OF THE STATE UNIVERSITY OF NEW YORK AT 13
ALBANY, NEW YORK PUBLIC INTEREST RESEARCH GROUP, “NYPIRG,” and 14
PRESIDENT OF THE STUDENT ASSOCIATION OF THE STATE UNIVERSITY OF 15
NEW YORK AT ALBANY, in his official capacity, 16
17
Defendants-Appellants-Cross-Appellees. 18
-------------------------------------------------------x 19
B e f o r e : WALKER and B.D.PARKER, Circuit Judges, and CASTEL, 20
District Judge.*
21
22
Appeal from a judgment of the United States District Court 23
for the Northern District of New York (David N. Hurd, Judge), 24
granting summary judgment to the plaintiffs and denying summary 25
judgment to the defendants on the grounds that the Student 26

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Association of the State University of New York at Albany 1
violated the First Amendment by using an advisory student 2
referendum to determine the amount of funding student 3
associations receive from a pool of mandatory student activity 4
fees. 5
AFFIRMED. 6
THOMAS MARCELLE, Law Office of 7
Thomas Marcelle, Albany, New York, 8
for Eric Amidon, Winston Brownlow, 9
and Collegian Action Leadership 10
League of New York. 11
LEWIS B. OLIVER, Jr., Oliver & 12
Oliver, Albany, New York, for the 13
Student Association of the State 14
University of New York at Albany. 15
MICHAEL B. DE LEEUW (Alexander R. 16
Sussman, Darcy M. Goddard, Michael 17
F. Savicki, Sloan S.J. Johnston, 18
Alexis Karteron, on the brief), 19
Fried, Frank, Harris, Shriver & 20
Jacobson LLP, New York, New York, 21
for New York Public Interest 22
Research Group. 23
David C. Vladeck, Georgetown 24
University Law Center, Institute 25
for Public Representation, 26
Washington, D.C., for amicus curiae 27
Connecticut Public Interest 28
Research Group. 29
JOHN M. WALKER, JR., Circuit Judge: 30
In this appeal from a November 7, 2005 judgment of the 31
United States District Court for the Northern District of New 32
York (David N. Hurd, Judge), we decide whether the Student 33
Association (“SA”) of the State University of New York at Albany 34

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1 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
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(“SUNY-Albany”) violated the First Amendment by using an advisory 1
student referendum to determine how to allocate funds from a 2
mandatory student activity fee among student organizations. The 3
district court held that it did. See Amidon v. Student Ass’n of 4
the State Univ. of N.Y. at Albany, 399 F. Supp. 2d 136 (N.D.N.Y. 5
2005). For the reasons that follow, we agree. 6
BACKGROUND 7
Every semester, SUNY-Albany collects a mandatory student 8
activity fee of $80 from each student, generating approximately 9
$1.69 million annually. A student who fails to pay this 10
mandatory fee cannot register for classes and has his transcript 11
withheld. N.Y. Comp. Codes R. & Reg. tit. 8, § 302.14(c)(2). 12
Plaintiffs Eric Amidon and Winston Brownlow enrolled at SUNY- 13
Albany in Fall 2001 and have paid the student activity fee each 14
semester. 15
The SA distributes the funds to recognized student 16
organizations (“RSOs”), of which there are more than one hundred. 17
A regulation issued by SUNY’s Board of Trustees requires the SA 18
to make funding allocation decisions in a viewpoint-neutral 19
manner. See id. § 302.14(c)(1)(i).1 Since August 2003, the SA 20

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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.
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Constitution has included (1) a requirement that all SA 1
committees and the SA Senate adhere to the principle of viewpoint 2
neutrality, (2) a definition of viewpoint neutrality, (3) a rule 3
that any SA decision violating viewpoint neutrality is “invalid 4
and null and void,” (4) a “standard evaluation form” for 5
submission by RSOs in support of funding requests,2 (5) 6
requirements of public disclosure upon an RSO’s request of any 7
documents relating to a decision denying funding and written 8
statements of the reasons for the denial, and (6) hearing 9
procedures for new and previously unfunded RSOs. SA Const. §§ 10
808, 809. 11
RSOs generally must re-apply for funding every year through 12
one of the following methods: 13
1. Budget Submission: The RSO may present a budget to the 14
Student Association, which the SA Senate may adopt, 15
reject, or modify. 16
2. Student Referendum: The RSO may seek funding based upon 17
a campus-wide student referendum in which the RSO asks 18

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“whether all students should pay a certain dollar 1
amount” to that organization out of the student 2
activity fund. To proceed by referendum, the RSO must 3
either obtain a two-thirds vote of the SA Senate or 4
submit a petition signed by at least 15% of the student 5
body. 6
In September 2004, the Trustees amended the regulation 7
governing student activity fees to mandate that while advisory 8
referenda of the student body were permissible in making funding 9
decisions, such referenda could not be binding on the student 10
government. See N.Y. Comp. Codes R. & Reg. tit. 8, § 11
302.14(c)(1)(i). In March 2005, the SA adopted Bylaws 12
implementing this rule. Pursuant to the Bylaws, the SA may use 13
referenda only “to advise [it] regarding the appropriate level of 14
funding and not to determine whether a group will or will not be 15
funded.” SA Bylaws § 517.1-.2. The SA Bylaws set forth a 16
nonexclusive set of criteria, to be discussed later, that 17
determine whether the SA should employ the assistance of an 18
advisory referendum to help calculate a particular level of 19
funding. SA Bylaw § 517.5. 20
Two organizations receive what the plaintiffs characterize 21
as “preferential” treatment. Dippikill, a non-profit corporation 22
that provides an 861-acre property to the school for various 23
activities, is the subject of an advisory referendum at least 24
every four years and most recently received an allocation of 25

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3 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.
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$210,000. The second is New York Public Interest Research Group 1
(“NYPIRG”), an RSO whose “mission is to train students in the 2
skills of civic engagement and advocacy through hands-on 3
experience.” It provides numerous services to SUNY-Albany such 4
as nonpartisan voter registration, homelessness awareness and 5
service campaigns, and a book exchange. Although it claims to be 6
nonpartisan, plaintiffs assert that it has a “liberal agenda” and 7
an “ideological bent.” Like Dippikill, its funding is re- 8
assessed every four years by an advisory referendum guaranteed to 9
NYPIRG by the SA.3 In the most recently reported referendum in 10
Spring 2003, the students approved, and the SA Senate allocated, 11
$5 of each student’s $80 fee to NYPIRG. 12
Amidon and Brownlow decided to counter NYPIRG’s “liberal 13
agenda” by establishing the “conservative” RSO College Action 14
Leadership League of New York (“CALL-NY”). CALL-NY “focuses on 15
affordable and accessible higher education and environmental 16
problems facing the world” and hopes to solve “consumer and 17
environmental problems” by “unleashing the power of the free 18
enterprise system.” In Spring 2003, Amidon presented a bill to 19
the SA Senate requesting a referendum to the student body on 20
whether $5 per student per semester should be allocated to CALL- 21

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4 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
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NY. The SA Senate rejected the bill without adopting any 1
findings. Undaunted, CALL-NY also sought funding for the 2003-04 2
school year by submitting a proposed budget to the SA, and it was 3
allocated $1,200. 4
Plaintiffs filed suit against the SA on March 9, 2004, 5
alleging violations of their constitutional rights. The 6
following day, prior to serving the complaint, Amidon once again 7
formally requested that the SA Senate approve a referendum for a 8
$5 per student per semester allocation to CALL-NY. The SA Senate 9
voted unanimously not to place the CALL-NY funding question on a 10
referendum ballot. A CALL-NY representative then served the 11
March 9, 2004 summons and complaint upon the SA Senate president. 12
CALL-NY did not otherwise apply for funding for the 2004-05 13
school year. 14
The complaint asserted five claims against the SA under 42 15
U.S.C. § 1983. Claim I, the focus of this appeal, charged that 16
the use of student referenda to fund and defund RSOs facially 17
violated the First Amendment.4 Plaintiffs sought, inter alia, 18

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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.
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declaratory and injunctive relief, nominal damages of $1 for the 1
violation of their constitutional rights, a refund of $5 per 2
plaintiff per semester of their mandatory student activity fees, 3
and attorney’s fees. 4
Plaintiffs moved for summary judgment. NYPIRG, believing 5
that plaintiffs’ primary goal was to defund it, sought, and was 6
granted, permission to intervene. NYPIRG and the SA filed cross- 7
motions for summary judgment. 8
The district court granted summary judgment to plaintiffs on 9
claim I. Amidon, 399 F. Supp. 2d at 153. The district court 10
held that SUNY-Albany had created a public forum in the form of a 11
fund to support student speech, for which viewpoint neutrality 12
was required. Id. at 147-48. It concluded that the use of 13
advisory referenda was facially viewpoint-based because it 14
necessarily “reflect[ed] the majority view of the value of the 15
RSO on the ballot,” did not serve as a proxy for the amount of 16
funding needed, and simply informed the decision makers of public 17
opinion about the group applying for funding. Id. at 150. 18
NYPIRG and the SA timely appealed, and plaintiffs cross- 19
appealed. 20
DISCUSSION 21

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We review the district court’s grant of summary judgment de 1
novo. Town of Southold v. Town of East Hampton, 477 F.3d 38, 46 2
(2d Cir. 2007). Summary judgment is appropriate when “there is 3
no genuine issue as to any material fact and . . . the moving 4
party is entitled to a judgment as a matter of law.” Fed. R. 5
Civ. P. 56(c). We must construe all the evidence in the light 6
most favorable to the nonmoving party, drawing all inferences and 7
resolving all ambiguities in its favor. LaSalle Bank Nat’l Ass’n 8
v. Nomura Asset Capital Corp., 424 F.3d 195, 205 (2d Cir. 2005). 9
I. Constitutionality of the Use of Advisory Referenda 10
We are asked to rule on the constitutionality of the SA’s 11
referendum policy in the context of a facial challenge. In 12
raising a facial challenge, plaintiffs face a “heavy burden.” 13
Nat’l Endowment of the Arts v. Finley, 524 U.S. 569, 580 (1998) 14
(quoting Rust v. Sullivan, 500 U.S. 173, 183 (1991)). Facial 15
invalidation is “strong medicine,” Lopez Torres v. N.Y. State Bd. 16
of Elecs., 462 F.3d 161, 205 (2d Cir. 2006), and is used 17
“sparingly and as a last resort.” Finley, 524 U.S. at 580 18
(quoting Broderick v. Oklahoma, 413 U.S. 601, 613 (1973)). To 19
prevail, plaintiffs must “demonstrate a substantial risk” that 20
application of the challenged practice or provision will lead to 21
a First Amendment violation. See id. 22
Plaintiffs’ challenge to the use of advisory referenda is 23
based upon the jurisprudence of compelled speech. After 24

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discussing compelled speech doctrine in general, we will turn to 1
its application to mandatory student activity fees. 2
A. Viewpoint Neutrality and Student Activity Fees 3
The First Amendment’s guarantee of freedom of speech 4
includes both the right to speak freely and the right to refrain 5
from speaking at all. Wooley v. Maynard, 430 U.S. 705, 714 6
(1977); see also Riley v. Nat’l Fed’n of the Blind of N.C., 487 7
U.S. 781, 796-97 (1988). “If there is any fixed star in our 8
constitutional constellation, it is that no official, high or 9
petty, can prescribe what shall be orthodox in politics, 10
nationalism, religion, or other matters of opinion or force 11
citizens to confess by word or act their faith therein.” W. Va. 12
State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). 13
Consequently, individuals may “hold a point of view different 14
from the majority and . . . refuse to foster . . . an idea they 15
find morally objectionable.” Wooley, 430 U.S. at 715. 16
Because an individual should be allowed to believe as he 17
sees fit without coercion from the state, his First Amendment 18
interests are implicated when the state forces him to contribute 19
to the support of an ideological cause he opposes. See Abood v. 20
Detroit Bd. of Educ., 431 U.S. 209, 234-35 (1977). In 21
articulating this right, the Supreme Court has acknowledged 22
Thomas Jefferson’s view that “to compel a man to furnish 23
contributions of money for the propagation of opinions which he 24
disbelieves[] is sinful and tyrannical.” Id. at 234 n.31 25

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(quoting I. Brant, James Madison: The Nationalist 354 (1948)) 1
(internal quotation marks omitted). Accordingly, the Court has 2
held that teachers’ unions and state bar associations, to which 3
members of those professions are required to pay dues, cannot 4
expend objecting members’ dues on ideological activities not 5
“germane” to their purposes. See id. at 235-36 (teachers’ 6
unions); Keller v. State Bar of Cal., 496 U.S. 1, 13-14 (1990) 7
(state bar associations). 8
The Court has applied similar principles to restrict the 9
ability of public universities to expend funds that students are 10
required to contribute in the form of activity fees. In Board of 11
Regents of the University of Wisconsin v. Southworth, 529 U.S. 12
217, 222-23 (2000) [hereinafter Southworth I], the University of 13
Wisconsin supported the activities of RSOs through a fund to 14
which every student was required to contribute. One of the ways 15
the RSO could obtain funding was through binding student 16
referenda on whether the RSO should be funded or defunded. Id. 17
at 224-25, 235. Some students challenged the process as 18
violative of their rights to freedom of expression and 19
association because it forced them to contribute to speech 20
activities with which they disagreed. Id. at 227. 21
The Court upheld the fee, but, for a number of reasons, 22
declined to apply the “germaneness” standard it used to evaluate 23
the expenditures of teachers’ unions and bar associations. Given 24
that a university seeks, as part of its mission, “to stimulate 25

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the whole universe of speech and ideas,” the standard appeared 1
unworkable. Id. at 232. The Court also afforded a degree of 2
deference to the school’s judgment, stating that it “is not for 3
the Court to say what is or is not germane to the ideas to be 4
pursued in an institution of higher learning.” Id. The Court 5
was also concerned that its disposition could make the 6
university’s program “ineffective.” Id. As a result, the Court 7
did not require the university to allow “each student to list 8
those causes which he or she will or will not support.” Id. The 9
Court instead imposed a less onerous safeguard for objecting 10
students borrowed from its analogous public forum cases: Funds 11
from a mandatory student activity fee to support student speech 12
must be allocated in a viewpoint-neutral way. Id. at 229-30, 13
233-34. 14
The Court left undecided whether the use of a binding 15
referendum to fund or defund an RSO violated the First Amendment. 16
Id. at 235-36. In dicta, however, the Court stated: 17
It is unclear to us what protection, if any, there is 18
for viewpoint neutrality in this part of the process. 19
To the extent the referendum substitutes majority 20
determinations for viewpoint neutrality it would 21
undermine the constitutional protection the program 22
requires. The whole theory of viewpoint neutrality is 23
that minority views are treated with the same respect 24
as are majority views. Access to a public forum, for 25
instance, does not depend upon majoritarian consent. 26
That principle is controlling here. 27
28
Southworth I, 529 U.S. at 235 (emphasis added). 29
B. Use of Advisory Referenda 30

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In this case, we are asked to decide whether, on its face, 1
the SA’s advisory student referenda provisions violate Southworth 2
I’s requirement of viewpoint neutrality. 3
As a preliminary matter, we agree with the district court 4
that our decision in Carroll v. Blinken, 957 F.2d 991 (2d Cir. 5
1992), is not controlling. In that case, students sued SUNY- 6
Albany and NYPIRG because, inter alia, NYPIRG was allocated funds 7
every two years from a pool of student activity fees based upon 8
an advisory student referendum. Id. at 993-94. Although we held 9
that the students’ funding of NYPIRG’s activities amounted to 10
compelled speech and association, id. at 997, we concluded with 11
scant analysis that use of the referendum was content-neutral. 12
Id. at 999. Importantly, we decided Carroll prior to the Supreme 13
Court’s decision in Southworth I – which cast doubt on the use of 14
referenda – and analyzed the funding provision as a regulation of 15
the “non-speech” elements of expressive conduct and a time, 16
place, and manner restriction. See id. at 999 (citing to both 17
classes of cases). Given our lack of full explanation in 18
Carroll and the Supreme Court’s intervening decision, we are free 19
to decide anew whether the SA’s use of advisory student referenda 20
discriminates based on viewpoint. See Mastrovincenzo v. City of 21
N.Y., 435 F.3d 78, 93 (2d Cir. 2006). 22
1. Allocation Versus Funding 23
Defendants argue that because the advisory referenda at 24
issue help to determine the amount of funding an RSO receives 25

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rather than whether to fund at all, the referenda do not 1
implicate the First Amendment concerns articulated in Southworth 2
I. Because, given the nature of the public forum at issue, a low 3
level of funding can have the same impact as no funding at all, 4
we find that this factual difference has no constitutional 5
significance. 6
A pool of student activity fees to fund private speech is a 7
limited public forum in which forum principles apply. 8
Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 9
819, 830 (1995). There may be restrictions on speech in a 10
limited public forum so long as they are viewpoint-neutral and 11
reasonable in light of the forum’s purpose, see Make the Road by 12
Walking, Inc. v. Turner, 378 F.3d 133, 143 & n.4 (2d Cir. 2004); 13
see also Bronx Household of Faith v. Bd. of Educ., 331 F.3d 342, 14
351 (2d Cir. 2003), and do not serve as a facade for viewpoint 15
discrimination, Cornelius v. NAACP Legal Def. & Educ. Fund, 473 16
U.S. 788, 812 (1985). The denial of funding in a viewpoint- 17
discriminatory manner is as impermissible as the denial of access 18
to a physical forum in a viewpoint-discriminatory manner. See 19
Good News Club v. Milford Cent. Sch., 533 U.S. 98, 110 (2001); 20
see also Rosenberger, 515 U.S. at 830-31, 835. This proscription 21
on how funds are allocated is compelled partly by the danger to 22
liberty when the state sets out to classify speech and the risk 23
that protected speech will be chilled when school officials “cast 24
disapproval on particular viewpoints of its students . . . in one 25

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of the vital centers for the Nation's intellectual life, its 1
college and university campuses.” See Rosenberger, 515 U.S. at 2
836. 3
A university’s viewpoint-discriminatory decision respecting 4
how much funding to allocate to an RSO raises the same concerns 5
as a viewpoint-discriminatory decision respecting whether to fund 6
an RSO at all. The level of funding a group receives may serve 7
as an expression of approval or disapproval of the group’s 8
message. And the amount allocated to a group, whether a lot or a 9
little, can skew debate on issues on which the group advocates a 10
position. In this context, a comparatively low level of funding 11
may not be much different than a complete denial of funding. A 12
parallel lies in the realm of campaign contributions: 13
A restriction on the amount of money a person or group 14
can spend on political communication during a campaign 15
necessarily reduces the quantity of expression by 16
restricting the number of issues discussed, the depth 17
of their exploration, and the size of the audience 18
reached. This is because virtually every means of 19
communicating ideas in today’s mass society requires 20
the expenditure of money. 21
22
Buckley v. Valeo, 424 U.S. 1, 19 (1976) (per curiam); see also 23
Fed. Election Comm’n v. Nat’l Conservative Political Action 24
Comm., 470 U.S. 480, 493 (1985). 25
The defendants argue that RSOs only have “an equal 26
opportunity to be considered for funding,” but not a “right to 27
equal funding,” and therefore the First Amendment only requires 28
that RSOs have “access” to the fund. While we do not disagree 29

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with the defendants’ predicates, their conclusion misses the 1
point of Southworth I: A funding decision based on the speaker’s 2
viewpoint is impermissible irrespective of whether the harmed RSO 3
had the same right as any other RSO to be “considered” for 4
funding. 5
2. Whether the Referenda Reflect Viewpoints 6
Viewpoint discrimination is a “subset or particular instance 7
of the more general phenomenon of content discrimination,” in 8
which “the government targets not subject matter but particular 9
views taken by speakers on a subject.” Rosenberger, 515 U.S. at 10
829, 831. We have no doubt that the student referendum in this 11
case reflects the student body’s majority opinion of the value or 12
popularity of an RSO’s speech. Indeed, the SA concedes as much 13
in its brief when it states that “[a]ny RSO may use such an 14
advisory referendum in an effort to demonstrate widespread 15
support among the student body for the services provided by an 16
RSO.” SUNY Blue Br. at 36. 17
It is apparent that any contrary or minority view is at a 18
disadvantage because the referendum simply asks the student body 19
whether an RSO is entitled to a certain amount of funding. For 20
example, according to an affidavit of NYPIRG’s executive 21
director, NYPIRG’s referendum was used “to gauge whether there is 22
continued support from the student body for the educational 23
programming services and resources provided by NYPIRG.” 24
Similarly, the referenda submitted by CALL-NY asked for a set 25

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amount of funding per student per semester. Viewpoint 1
discrimination arises because the vote reflects an aggregation of 2
the student body’s agreement with or valuation of the message an 3
RSO wishes to convey. Cf. Forsyth County v. Nationalist 4
Movement, 505 U.S. 123, 134 (1992) (concluding that a fee for 5
holding an assembly or parade was based on the content of an 6
applicant’s speech because an administrator “‘must necessarily 7
examine the content of the message that is conveyed,’ [and] 8
estimate the response of others to that content” (internal 9
citation omitted)); Ward v. Rock Against Racism, 491 U.S. 781, 10
791 (1989). 11
We reject the defendants’ argument that there is no 12
viewpoint discrimination here because some RSOs simply do not 13
generate any real public interest. Defendants rely on the 14
Supreme Court’s decision in Arkansas Educational Television 15
Commission v. Forbes, 523 U.S. 666 (1998). Forbes held that a 16
public television network could exclude an independent 17
congressional candidate who lacked any real public support from a 18
televised debate that included the Democratic and Republican 19
candidates. Id. at 682-83. Although the Court held that the 20
televised debate was a nonpublic forum in which viewpoint 21
discrimination was prohibited, it concluded that the candidate’s 22
exclusion was not viewpoint discrimination because he “was 23
excluded not because of his viewpoint but because he had 24
generated no appreciable public interest.” Id. at 682. 25

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Forbes’ theory of viewpoint neutrality is distinguishable. 1
The Court explained that when the network excluded Forbes from 2
the debate, 3
objective lack of support, not . . . platform, was the 4
criterion. . . . A candidate with unconventional views 5
might well enjoy broad support by virtue of a 6
compelling personality or an exemplary campaign 7
organization. By the same token, a candidate with a 8
traditional platform might enjoy little support due to 9
an inept campaign or any number of other reasons. 10
11
523 U.S. at 683. Forbes drew a distinction, perhaps subtle, 12
between a candidate’s viewpoint and the degree of interest in 13
hearing the candidate, and concluded, in that context, that one 14
was not necessarily a proxy for the other. 15
Unlike Forbes, the vote in a student body referendum 16
substantially captures one thing: the student body’s valuation of 17
the RSO. While the policy at issue in Forbes may have skewed 18
debate in favor of charismatic candidates or well-run campaigns, 19
the referendum policy creates a substantial risk that funding 20
will be discriminatorily skewed in favor of RSOs with 21
majoritarian views. Favoritism of majority views is not an 22
acceptable principle for allocating resources in a limited public 23
forum. See Rosenberger, 515 U.S. at 835; see also Southworth I, 24
529 U.S. at 235. 25
26
3. The Advisory Nature of the Referenda 27
These viewpoint-discriminatory referenda have no place in 28
the funding allocation process, which requires that “minority 29

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views [be] treated with the same respect as are majority views.” 1
Southworth I, 529 U.S. at 235. The SA conceded at oral argument 2
before the district court that the referendum “really serves no 3
purpose in a viewpoint-neutral decision making process.” Amidon, 4
399 F. Supp. 2d at 151. Use of the referendum, on the other 5
hand, can place minority views “at the mercy of the majority.” 6
See Sante Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 304 (2000). 7
The SA therefore has no reason to use these purposeless but 8
discriminatory referenda in its allocation decisions. And we 9
think this is true even when the referenda are advisory. 10
The defendants argue that the First Amendment is offended by 11
the student referenda only when their viewpoint-discriminatory 12
results require a particular funding decision; conversely, they 13
argue, when the referenda are only advisory, the SA is free to 14
disregard the results and maintain viewpoint neutrality. We 15
disagree: While a decision maker is free to disregard a 16
viewpoint-discriminatory, advisory referendum, this practice 17
nevertheless injects a substantial risk of undetectable viewpoint 18
discrimination into the allocation process. 19
An analogous situation may be found in the constitutional 20
proscription against granting unbridled discretion in the prior 21
restraint context. The Court prohibits unbridled discretion 22
because it allows officials to suppress viewpoints in 23
surreptitious ways that are difficult to detect. See Forsyth 24
County, 505 U.S. at 130-31; see also Thomas v. Chicago Park 25

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Dist., 534 U.S. 316, 323 (2002). In order to make decisions 1
granting or denying permits subject to effective judicial review, 2
there must be “adequate standards to guide the official’s 3
decision.” Field Day, LLC v. County of Suffolk, 463 F.3d 167, 4
176 (2d Cir. 2006) (quoting Thomas, 534 U.S. at 323). While we 5
do not require “perfect clarity and precise guidance,” Ward, 491 6
U.S. at 794; see also Field Day, 463 F.3d at 179, a law 7
subjecting speech to a prior restraint must, as a prophylactic 8
matter, contain “narrow, objective, and definite standards to 9
guide the licensing authority.” Forsyth, 505 U.S. at 131 10
(quoting Shuttlesworth v. Birmingham, 394 U.S. 147, 150-51 11
(1969)). 12
Although the defendants are correct that the Supreme Court 13
has not incorporated the rule against unbridled discretion into 14
the requirement of viewpoint neutrality, the Seventh Circuit’s 15
decision in Southworth on remand from the Supreme Court 16
illustrates the appropriateness of such a rule. See Southworth 17
v. Bd. of Regents of the Univ. of Wis., 307 F.3d 566, 578 (7th 18
Cir. 2002) [hereinafter Southworth II]. In determining whether 19
the plaintiff had standing to mount a facial challenge to the 20
university’s program, the Seventh Circuit held that “the 21
prohibition against unbridled discretion is a component of the 22
viewpoint-neutrality requirement.” Id. at 579. The court 23
engrafted this requirement onto Southworth I’s viewpoint- 24
neutrality test because of the risks of viewpoint discrimination 25

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that attend unbridled discretion and because of the Supreme 1
Court’s application of forum principles to student activity 2
funds. Id. at 578-80. 3
While there is no need for us to hold that unbridled 4
discretion in general violates Southworth I’s call for viewpoint 5
neutrality, the use of these advisory referenda raises concerns 6
similar to those in Southworth II. A student referendum 7
incorporated into the RSO funding process provides the SA Senate 8
with a window into how the student body has valued an RSO, 9
increasing the risk that it will make a viewpoint-discriminatory 10
decision to appease its electoral constituents. Because the 11
referendum incorporated in the funding process is only advisory, 12
courts cannot tell the degree to which the referendum infected 13
the SA’s decision. 14
The Supreme Court has suggested that the use of referenda 15
might be constitutional depending upon “what protection . . . 16
there is for viewpoint neutrality.” See Southworth I, 529 U.S. 17
at 235. But here there are no effective safeguards to prevent a 18
discriminatory advisory referendum from tainting the allocation 19
process. The defendants point to SA Bylaw § 517.5, which 20
provides the following nonexclusive criteria to determine whether 21
the SA should use a referendum to determine funding: 22
1. “[W]hether the organization can demonstrate that it 23
will expend funds for the enrichment of campus life at 24
[SUNY-]Albany” 25

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2. “[W]hether the organization can provide services that 1
complement the educational mission of [SUNY-]Albany” 2
3. “[W]hether the organization can demonstrate that it has 3
undertaken successful events and activities in the 4
past” 5
4. “[W]hether the organization maintains a constitution or 6
bylaws” 7
5. “[W]hether the organization is directed by students” 8
6. “[W]hether the organization can demonstrate sufficient 9
student interest in its activities to warrant a 10
particular level of funding” 11
Just as written criteria alone do not ensure that an 12
official’s discretion is adequately “bridled,” Beal v. Stern, 184 13
F.3d 117, 126 n.6 (2d Cir. 1999), the foregoing criteria do not 14
save the use of advisory referenda. First, because the criteria 15
are nonexclusive, there is a disconcerting risk that the SA could 16
camouflage its discriminatory use of the referenda through post- 17
hoc reliance on unspecified criteria. See City of Lakewood v. 18
Plain Dealer Publ’g Co., 486 U.S. 750, 757-58 (1988). Second, of 19
the enumerated criteria, factors (1) and (2) are too vague and 20
pliable to effectively provide the constitutional protection of 21
viewpoint neutrality required by Southworth I. In sum, we fail 22
to see how viewpoint-discriminatory referenda can be saved by a 23
nonexclusive set of “safeguards,” some of which are so indefinite 24

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as to be meaningless and thus incapable of providing guidance to 1
student decision makers. 2
The requirement that each RSO complete a standard evaluation 3
form, see SA Bylaw § 513.1, also does not help. While it 4
provides useful information to the SA, the parties point to no 5
standards governing its use. 6
Finally, the SA Constitution’s general requirement that 7
funding decisions be viewpoint-neutral is insufficient to salvage 8
the process. SA Const. § 808. While it is important and useful 9
for the SA to acknowledge the obligations imposed by Southworth 10
I, the bare statement without meaningful protections is 11
inadequate to honor its commands. It does nothing to help courts 12
identify covert viewpoint discrimination, nor does it prevent 13
self-censorship by timid speakers who are worried that officials 14
will discriminate against their unorthodox views notwithstanding 15
constitutional proscriptions. Cf. Southworth II, 307 F.3d at 16
578-79. We acknowledge that the Seventh Circuit in Southworth 17
II held that the student association was not vested with 18
unbridled discretion because the university had an express policy 19
prohibiting viewpoint discrimination, sanctions for the violation 20
of viewpoint neutrality, and imposed procedural requirements for 21
hearings, see id. at 587-88, all of which are present here. And 22
we do not necessarily disagree with that holding, as far as it 23
goes. But there was no advisory referendum policy at issue in 24

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that case. The question was limited to whether the student 1
association had unbridled discretion to make funding decisions. 2
The defendants argue that deference is due to the manner in 3
which schools accomplish their educational missions. See, e.g., 4
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) 5
(upholding the censorship of a high school newspaper where it was 6
“reasonably related to legitimate pedagogical concerns”); Bethel 7
Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685-86 (1986) 8
(upholding the disciplining of a high school student for a 9
sexually explicit speech at a school assembly). But cases like 10
Hazelwood explicitly reserved the question of whether the 11
“substantial deference” shown to high school administrators was 12
“appropriate with respect to school-sponsored expressive 13
activities at the college or university level,” 484 U.S. at 273 14
n.7, where the relation between students and their schools is 15
“different and at least arguably distinguishable.” See 16
Southworth I, 529 U.S. at 238 n.4 (Souter, J., concurring). In 17
Southworth I, the Supreme Court established the appropriate 18
degree of deference owed to universities in implementing funding 19
programs by imposing a requirement of viewpoint neutrality rather 20
than germaneness. See id. at 232-33. We see no reason to grant 21
the SUNY-Albany additional latitude. 22
The defendants need not be troubled that our views of the 23
matter would prevent a university from allocating its scarce 24
monetary resources unevenly among RSOs. The demand for proceeds 25

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from SUNY-Albany’s student activity fund will undoubtedly exceed 1
supply. Southworth v. Bd. of Regents of Univ. of Wis., 376 F.3d 2
757, 772 (7th Cir. 2004) [hereinafter Southworth III]. While 3
economic scarcity cannot justify viewpoint discrimination in 4
funding student activities, Rosenberger, 515 U.S. at 835, we have 5
no concern with differential funding so long as the allocation 6
decisions are made without regard to the recipients’ viewpoints. 7
SUNY-Albany is therefore free to allocate based upon 8
neutral, objective criteria, see Rosenberger, 515 U.S. at 835; 9
Southworth II, 307 F.3d at 595, that ultimately have a disparate 10
impact on different viewpoints so long as the university’s 11
purpose is not to discriminate based on viewpoint. See Boy 12
Scouts of Am. v. Wyman, 335 F.3d 80, 93-94 (2d Cir. 2003). 13
Because an RSO’s financial needs do not necessarily reflect its 14
viewpoint, the university does not “impermissibly distort[] [its] 15
marketplace of ideas” by considering those needs. Cf. Davenport 16
v. Wash. Educ. Ass’n, 127 S. Ct. 2372, 2381 (2007). The SA may 17
therefore consider the varying costs RSOs will face in 18
communicating their messages and providing their services, such 19
as the size of space needed or the costs of distributing programs 20
to attendees. See Southworth II, 307 F.3d at 595. If an RSO 21
demands an amount of funding that does not genuinely reflect its 22
costs and needs, the SA is free to provide less. But the 23
university must ensure that the allocation decision is based upon 24
an RSO’s objective financial needs. 25

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Consistent with public forum principles, our decision does 1
not foreclose the use of advisory referenda that are reasonable 2
in light of the forum’s purpose and viewpoint neutral. For 3
example, we see no impediment to using an advisory referendum 4
(or, perhaps more aptly labeled, a survey) to ascertain how many 5
students anticipate attending a specific event for which an RSO 6
seeks funding as a means of assessing that RSO’s prospective 7
costs. The referendum at issue here, which asks simply whether 8
an RSO should receive a certain amount of funding, plainly 9
crosses the line and fails to provide the protection of viewpoint 10
neutrality the constitution requires. 11
4. The Use of Advisory Referenda Under Strict 12
Scrutiny 13
Because the use of the advisory referenda at issue here 14
amounts to viewpoint discrimination, to pass constitutional 15
muster this practice must survive strict scrutiny, cf. Boos v. 16
Barry, 485 U.S. 312, 321 (1988), which requires that the policy 17
be narrowly tailored to serve a compelling governmental interest, 18
Hotel Employees, 311 F.3d at 545; see also R.A.V., 505 U.S. at 19
395; Hobbs v. County of Westchester, 397 F.3d 133, 149 (2d Cir. 20
2005). 21
The defendants do not argue that the advisory referenda 22
serve a compelling purpose; rather, they argue that the SA is 23
free to disregard them to the extent they are viewpoint- 24
discriminatory. Nor is there a meaningful claim that they are 25

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narrowly tailored to any compelling interest. Consequently, the 1
district court properly granted summary judgment to plaintiffs 2
and denied summary judgment to the SA and NYPIRG. 3
II. Use of Binding Referenda in Allocating Funds to NYPIRG 4
Plaintiffs argue on cross-appeal that the SA violated the 5
First Amendment by using a binding referendum to allocate funding 6
to NYPIRG. We do not reach this issue because plaintiffs were 7
untimely in filing their cross-appeal notice. 8
A cross-appellant must file within (1) 30 days of entry of 9
judgment or (2) 14 days after the filing of the first notice of 10
another party, whichever is later. Fed. R. App. P. 4(a)(3); see 11
also In re Johns-Manville Corp., 476 F.3d 118, 120 (2d Cir. 12
2007). Judgment was entered on November 7, 2005, and the SA and 13
NYPIRG filed their notices of appeal on December 6, 2005. 14
Plaintiffs filed their cross-appeal notice on January 5, 2006, 15
beyond the time limit. Even if it remains an open question 16
whether the non-statutory timing requirement for filing a cross- 17
appeal is jurisdictional after Bowles v. Russell, 127 S. Ct. 18
2360, 2365-66 (2007) (holding that statutory time limits on 19
filing notices of appeal are jurisdictional), we must strictly 20
enforce the time limit if an adverse party invokes it, In re 21
Johns-Manville Corp., 476 F.3d at 121, 123-24, as the defendants 22
have done here. 23
CONCLUSION 24

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For the foregoing reasons, the judgment of the district 1
court is AFFIRMED. 2

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