The Student Association may be forced to abandon the use of referenda to gather input on how they operate, after a federal court declared last week that the SUNY guidelines that govern the practice are unconstitutional.

“It couldn’t be worse of a ruling,” said Michael Smyth, BU’s Student Association president. “There is no other way to poll students.”

The ruling came in an action brought by a University of Albany student organization after their student government voted against including their request for a funding increase in a campus-wide student poll.

Federal District Judge David Hurd of the Northern District of New York ruled the use of referenda to gauge interest in student organizations — in order to assist the S.A.’s allocation of the mandatory student activity fee — violates students’ First Amendment rights because it discriminates against less popular groups and prevents the “free and open exchange of ideas.”

Referenda reflect the majority view of students and allow popular opinion, rather than “viewpoint-neutral” criteria, to guide the funding of student groups, Judge Hurd wrote.

“The whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views,” Judge Hurd wrote. “Such polling would never be tolerated if conducted… by a city official for use while determining who should be allowed to conduct a parade or protest demonstration.”

But there is a democratic interest in allowing students to determine how their fees are allocated, say officials from the New York Public Interest Research Group (NYPIRG) — a statewide student advocacy group that joined the action as a co-defendant.

“It is important for student governments to poll their students,” said Christine Agic, regional campus supervisor for NYPIRG. “We see this as a really strong students’ rights case. It is a blow for students’ rights on campus and students’ rights to decide how to fund groups. We obviously respectfully disagree with the decision.”

Binding BU

The legal complexities of the case make it unclear what types of polls are prohibited, and at which campuses.

According to David Henahan, a spokesman for the SUNY central administration, last week’s ruling is confined to prohibiting the University at Albany’s S.A. from using advisory referenda to allocate funds collected through mandatory student activity fees.

“It is premature to discuss the impact of this ruling until the appeal process has run its course. Certainly, we are in the process of looking at the ruling and assessing its possible impact,” Henahan said.

Spokespersons from NYPIRG and Collegians for a Constructive Tomorrow (CFACT), the group that brought the lawsuit, agreed that the implications of the decision are yet unknown, but offered diverging opinions on how widespread the changes could be.

NYPIRG’s spokesperson speculated that the decision of a higher court would be needed to bind BU.

But Marcus Povinelli, CFACT’s executive officer, is confident the ruling prohibits student polling on all SUNY campuses in the Northern District of New York.

“We are going to travel to SUNY campuses to advise S.A.s on the effect of the decision,” Povinelli said.

It is unclear if the judge declared all referenda unconstitutional, or just those related to the funding of student organizations.

Although Smyth said Binghamton’s S.A. does not allow student organizations to seek budgetary increases through student polls, he is concerned that the ruling prohibits all student polls, including those aimed at gathering student opinion.

Smyth’s understanding is that last year’s spring referendum, which was instrumental in showing students’ disapproval for proposed renovations to the East Gym, would have been impossible under the ruling.

NYPIRG and Albany’s S.A. are still deciding whether to appeal, but CFACT will appeal if the judgment is not overturned.

“We are going to continue pursuing this case in every aspect,” Povinelli said.

An S.A. appeal could trigger a series of appeals; according to Agic, “it could take 10 years for the final decision to come out.”

Case history

Like NYPIRG, CFACT aims to tackle environmental and consumer problems, but by “unleashing the powers of the free-enterprise system.”

One of the reasons Eric Amidon, a self-proclaimed conservative, decided to establish CFACT was to counter what he called NYPIRG’s liberal voice on campus.

“We believe in the free market and marketplace of ideas,” Povinelli said. “We are kind of taking the opposite viewpoint of NYPIRG.”

The Albany S.A.’s constitution required a group to gain the signatures of 10 percent of students, or the approval of two thirds of the S.A. senate, before a request for a budgetary increase could be included in a student referendum.

After trying unsuccessfully to gain access to the referendum ballot via both methods, CFACT decided to test the legality of referenda in the local district court, alleging the S.A. worked to distribute the mandatory activity fee in a way that violated CFACT members’ constitutional rights. They argued that the use of popular opinion in advising the S.A.’s funding of student organizations violated their right to free speech by suppressing minority views on campus.

Povinelli sees the decision as a victory for students’ right to get fair representation on campus. But NYPIRG said the ruling does exactly the opposite.

“This decision delivers a chilling message to students,” said NYPIRG’s executive director, Rebecca J. Weber. “The case was an attempt to clamp down on freedom of speech and unfortunately, that attempt was successful.”

The full impact of the ruling’s effect on BU will be clearer by Dec. 7 – the deadline for filing an appeal.