Still on the Pence: Stanford Constitutional Council will hear appeal of Mike Pence appearance

The Stanford University Constitutional Council will decide whether the student government violated the rights of the Stanford College Republicans when it denied funding for an event that would have seen former Vice President Mike Pence speak on Stanford’s campus.

At a meeting Tuesday night, the council, a four-person student oversight body for Stanford’s student government, unanimously voted to hear the case brought by the Stanford College Republicans against the Undergraduate Senate. The senate had denied funding for the event on two separate occasions, citing ideological or moral objections to Pence, along with concerns about student safety and the spread of COVID-19. The full hearing will take place on Jan. 18, as the College Republicans attempt to host Pence on campus in the middle of February.

The decision was not a ruling on the merits of the case, the four student judges explained, and they stressed the decision to hear the case has no bearing on how the court ultimately will decide.

The question at the heart of the case is the conflict over whether the Undergraduate Senate discriminated on the basis of viewpoint against the College Republicans in denying funding for Pence’s appearance on campus. A representative for the College Republicans stated that the group has the logistics in place to proceed with the event and said Pence has accepted the group’s invitation. 

The College Republicans applied for a $6,000 Standard Grant for the event, the maximum that can be distributed for a specific event. The senate denied the request twice, once in a closed-vote session over the online platform Slack, then again at a Dec. 7 meeting. The issue wasn’t that there were too many “no” votes for the event, but rather that too many senators abstained from the vote to allow the senate to award the funding.

FIRE initially wrote that the senate had significant questions to answer about the denial. The senate signaled that it had considered “student safety, freedom of speech, and COVID-19 protocols” in deciding to deny the funding. While public health and safety concerns are legitimate considerations, it is critical that decisions which are predicated on safety rationales and burden unpopular speakers be closely scrutinized to ascertain whether the concerns are legitimate or pretextual.

The COVID-19 and public safety rationales here did not withstand scrutiny. The Dec. 7 senate meeting contained significant evidence that the decision to deny funding was predicated on viewpoint. As we wrote in our most recent letter to the university: 

​​The recording of that Senate meeting is permeated with evidence that the student senators’ decisions to abstain, or not to vote at all, were driven by viewpoint-based considerations. One senator exhorted their colleagues to take “into consideration as you consider your vote” the “health and well-being—emotionally, physically, and mentally—of students.” Another acknowledged the value of “diversity of thought and ideas . . . to advancing intellectual discourse and finding solutions to societal issues” and recognized that denying funding would set “a precarious precedent for other communities and may be unfairly used against them,” but voted to abstain because they did “not feel comfortable voting yes” due to their fear of “propagation of ideals” others may believe harmful. Still another encouraged students to “make moral judgments” if they’re “against the individual speaker[.]”

Additionally, at the Dec. 7 meeting, the senate voted on and approved several modifications to the event: a 1,000 attendee maximum, a masking requirement, health checks for Stanford students including proof of vaccination or a negative COVID test, a pre-registration form to ensure that all non-Stanford attendees are residents of Santa Clara County, and a cap on the number of non-Stanford attendees. These modifications appear to conform with Stanford’s institutional policies on COVID-19, which currently restrict indoor gatherings through Jan. 28. Prior to that revision, the school had set guidelines that reflected the university’s capacity to hold events without jeopardizing public health and safety.

Even with these modifications, the senate still did not approve funding, revealing the viewpoint-based reasoning for denying the funding. 

At Tuesday’s Constitutional Council meeting, a representative of the College Republicans affirmed that the group would comply with the modifications to the event if the council rules in their favor. The modified version of the event aims to address legitimate public health concerns regarding the spread of COVID-19. 

The senate must reverse its decision here. The vote would not be an endorsement of Pence’s views, nor agreement with what he will say, but merely a reflection that the College Republicans have met the criteria for funding, and that the senate recognizes the importance of viewpoint-neutrality in its decision-making. Further concerns about “student safety” appear to consider the reaction of the student body to Pence’s speech rather than public health risks — which would be unacceptable grounds for denying funding that will establish a chilling precedent for other student groups. 

This would not be the first reversal of a senate decision concerning a controversial conservative speaker: The senate reversed its decision to deny funding for a Dinesh D’Souza appearance in 2019 after the College Republicans filed a Constitutional Council case. 

It’s time for Stanford’s student senators to live up to their roles, as they have the responsibility to allocate funds on a viewpoint-neutral basis in line with Stanford’s free speech policies. The modified event should be approved by the Constitutional Council, but it shouldn’t have to come to that — the senate must reverse itself.

The full trial will take place on the evening of Tuesday, Jan. 18.

FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If you’re faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533).

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