Court: ‘Back-room deliberations’ at Cal State–San Marcos unconstitutional

SAN DIEGO – A federal district court struck down a California State University–San Marcos policy of “back room deliberations” Tuesday, used to fund pro-abortion and other favored views while preventing a pro-life organization and its campus president, Nathan Apodaca, from accessing student funding. 

Alliance Defending Freedom attorneys filed a federal lawsuit, in 2017, challenging the university’s discriminatory funding policies and its decision to fund the Gender Equity and the LGBTQA Pride Center with almost $300,000 in mandatory fees while denying Students for Life $500 in funding to host a visiting speaker on “Abortion and Human Equality” to provide a contrasting view. Tuesday’s decision struck down the policies used to disqualify Students for Life.

“Public universities should encourage all students to participate in the free exchange of ideas, not create elaborate and secretive funding schemes to award their favored few with first-class status while denying even economy class to opposing views,” said ADF Senior Counsel Caleb Dalton. “The university spared no expense to fund the advocacy of its preferred student groups but denied funding for speakers from Students for Life. But yesterday, the district court correctly declared, ‘These “back room deliberations” are exactly the [sic] type of considerations the First Amendment is designed to prevent. Nothing prevents these officials from encouraging some views while suppressing others through cosponsorship funding.’ We’re grateful the district court has rejected this unfair and discriminatory policy as unconstitutional.”

CSU–San Marcos has more than 100 recognized student groups. In the 2016-2017 academic year, the Gender Equity Center and the LGBQTA Pride Center received a combined $296,498 for speech and expressive activities—more than 21% of all mandatory student activity fees the programming board received for that year—compared to only $38,629 for the more than 100 other groups combined (less than 3%). During the 2016-2017 academic year, the GEC hosted “The ABC’s of LGBTQ: Queer Women” and a so-called “Pleasure Party.” The LGBQTA Pride Center hosted “Kink 101”—which was an interactive workshop and discussion of bondage, dominance, sadism, and masochism—and fetish-style practices. These and the centers’ other advocacy events were funded exclusively from mandatory student fees.

During the same school year, Students for Life applied for a $500 “Leadership Funding” grant to host pro-life speaker and University of North Carolina–Wilmington Professor Mike Adams to provide an alternative view. Student groups like SFLA may receive only $500 per semester. Even though Apodaca and other Students for Life members paid the same mandatory student activity fees that all students pay as a condition of enrollment, he and his pro-life peers were denied equal access to those fees to bring Adams to campus. While Tuesday’s decision clearly struck down the policies used to exclude Students for Life from funding, it is less clear what impact it will have on the funding for the two centers.

“While touting a community that values ‘individual and cultural diversity, and respect[s] multiple perspectives,’ Cal State–San Marcos is not practicing the ‘inclusiveness’ it preaches,” said ADF Senior Counsel Tyson Langhofer, director of the ADF Center for Academic Freedom. “Today’s college students will be tomorrow’s legislators, judges, commissioners, and voters, and the district court has correctly decided that Cal-State San Marcos can’t force student citizens to pay for advocacy of the views the university decides are orthodox and effectively exclude competing views. There can be no marketplace of ideas where the government simply funds its favored views.”

“Public universities have no right to use their power, including mandatory student fees, to restrict speech they don't agree with or particularly like,” said Kristan Hawkins, president of Students for Life of America. “Thankfully, the court agrees that forcing students to pay into a system that treats their peers unfairly is a disservice to the entire Cal State-San Marcos student body and flatly unconstitutional. Pro-life students should have every opportunity available to them that pro-abortion students have, and anything less is a failure on the part of Cal State-San Marcos to abide by the First Amendment.”

Daniel R. Watkins of Watkins & Letofsky, LLP, is among nearly 3,400 attorneys allied with ADF and serves as local counsel in the lawsuit, Apodaca v. Abrego, filed in the U.S. District Court for the Southern District of California. 

Students for Life of America is the nation’s largest pro-life student organization with groups on over 1,220 high schools and college campuses across the country.

• Pronunciation guide: Langhofer (LANG’-hoff-ur)

The ADF Center for Academic Freedom is dedicated to ensuring freedom of speech and association for students and faculty so that everyone can freely participate in the marketplace of ideas without fear of government censorship.

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