Funding Public Universities – Legislative Discretion

Assume for a moment that that a local state college allows its students and faculty to stage a play on college facilities about a family facing the struggles of a gay older son who presses for his family’s approval of his upcoming marriage to a gay partner. Slowly, after hearing a litany of arguments in support of tradition from each member of his family, he backs off his plans. He comes to realize that his family’s passionate commitment is correct, that marriage is appropriately relegated to the millennia-old social and religious tradition of a union between a man and a woman. Outraged at this performance, the Democratically-controlled legislature – specifically citing the play and arguing that the college should be required to reflect the liberal culture of the state – votes to cut the budget of that college $52,000 to discourage such aberrations from state policies. Okay with you?

Try an even lesser parallel in real life. “More than 750 people packed into a city auditorium [in Charleston, South Carolina in mid-April] for a sold-out production of ‘Fun Home,’ a musical by a New York-based troupe about a woman coming to terms with her closeted gay father’s suicide. The crowd rose in a standing ovation before the show even began… The emotional reaction was part of a worsening political battle between South Carolina’s public universities and conservative Republican lawmakers, who argue that campus culture should reflect the socially conservative views of the state.

“The state’s House of Representatives recently voted to cut $52,000 in funding for the College of Charleston [pictured above] as punishment for assigning students to read ‘Fun Home,’ the graphic novel that formed the basis for the play. House lawmakers endorsed a similar budget cut for the University of South Carolina Upstate in Spartanburg for using a different book with gay themes in its reading program… Republican lawmakers also helped pave the way for the appointment of a controversial GOP state official as the College of Charleston’s next president, sparking campus protests.” Washington Post, April 22^nd.

Interesting question: if funding state educational programs is a discretionary act with state legislatures, why must they spend money on programs they clearly do not support? Does the First Amendment require a different result? Can a court order a state to spend money anyway? Would this imbue the courts with the ability to authorized budgetary expenses? Could the legislature, for example, save money for its majority of voters by denying African-Americans a college education, and cutting the budgets by the costs of servicing this minority? We’ve seen affirmative action require affirmative results (although the Supreme Court just ruled that voters can remove an affirmative action mandate in state universities), prison overcrowding be reduced, and generally to require states to spend money to end discrimination.

Does it matter that this occurs at a college/university level vs. primary and secondary public education? Are younger children less able to deal with social controversy than college students? Teaching creationism seems to violate the separation of church and state requirement of the First Amendment, but many state legislatures and school districts continue to insist that evolution is simply a theory that should be taught side-by-side with “intelligent design.” Why, they ask, are we required to fund teachings that we are so profoundly against, philosophies that we believe are harmful to our youth and the very foundations of our state and local traditions? Aren’t legislators elected precisely because their opinions reflect those of the majority of voters that elected them?

A subtle legislature could have disguised its punishment, but then it would not have generated the desired political capital that tying the cut to the liberal challenge to social conservatism. Is it the linkage, if clearly established, the offensive part? Is this exercise of legislative discretion consistent with the majority of local voters even offensive to the American system of democracy? If you were a judge, presented with a challenge to this $52,000 cut, how would you rule… and how would you justify your ruling.

I’m Peter Dekom, and some very big questions arise in a democracy where majority rule always comes within a constitutional protection of minority rights.