UJ finds for Alterman

In a landmark ruling severely curtailing the Senate’s authority over its discretionary budget, the Union Judiciary has unanimously ruled in favor of Eric Alterman in the case of Alterman v. Senate.

Ruling that “[t]he presentation of past SMR-assisted events merely solidified this court’s belief that the Senate has not always adhered to the bylaw in question,” the Court essentially ensured that in the future, the Senate will no longer be allowed to co-sponsor pre-planned events. The implications of today’s decision are wide-ranging. In the past, money has been distributed to events such as:

-The Brandeis Open Mic Series presentation of activist poet Jason Paul

-The Prospect Hill barbecue

-The Advocates student rights workshop

-The Winter Gala in support of HopeFound

From the precedent set by the Court today, none of these events would have been possible. In the future, events struggling for money will have to seek out other sources of sponsorship.

On the plus side, however, we now have plenty of money left for Midnight Buffet!

Full text of the decision follows (with concurrences!):

Majority Opinion:

Finding sufficient funding for events and club operations is a constant struggle for clubs since the capping of the Student Activities Fee last year and the use of past years’ rollover funds decreased the amount the Finance Board may allocate to clubs. In our Student Union, the FBoard exists as a resource for all chartered clubs and organizations, one of equal access, whose members are democratically elected by the entire student body to allocate funds impartially. The Student Union Senate is not permitted to request money directly from FBoard. Instead the Senate has a separate fund, called the Senate Discretionary Fund, out of which Senators may request money for their advocacy projects. These technical distinctions are important to the understanding of the case recently brought before the Union Judiciary.

Article IX, Section 1 of the Bylaws, which govern the operations of the Student Union, details the conditions that funding requests (called Senate Money Requests, or SMRs) to the Senate must meet. The last of those conditions, part 9, states, “All Senate Money Resolutions must be used for Student Union Government projects and/or operations.” It was under this provision that Senator for the Class of 2009 Eric Alterman brought a case to the Union Judiciary challenging the legitimacy of SMR S09-5, “Resolution to Bring Bill Ayers and Robert H. King to Campus,” in which the Senate allocated $900.

In evaluating whether or not this SMR violated Article IX, Section 1 of the Bylaws, it was necessary for the justices of the Union Judiciary to determine whether the event in question qualifies as a “Student Union Government project.” The first argument made by the Lev Hirschhorn and Alex Melman, the senators who had introduced the SMR and represented the Senate in this hearing, was one of legal definition. Since the phrase “union project” is not explicitly defined anywhere within the Constitution or Bylaws they reasoned that the Senate’s past implementation of the rule set a precedent for what it meant. They presented a string of SMRs passed by the Senate for projects with varying degrees of Union involvement. They argued that, regardless of any other support, by agreeing to provide for these endeavors financially the Senate had made these into “union projects.” This interpretation of Article IX, Section 9 is somewhat circular and begs the question, why would the bylaws take the trouble to say limit SMRs to a particular purpose if, by the simple act of passing one, the Senate fulfilled that purpose? Instead, this court finds that the Union must have more than a financial role in order for an event to qualify as a union project.

The presentation of past SMR-assisted events merely solidified this court’s belief that the Senate has not always adhered to the bylaw in question. While it would be improper for us to judge cases that were never brought before us and of which our knowledge is incomplete, if some the SMRs picked out as precedent had been challenged we would likely have heard the case. Just because these instances were never ruled on by the UJ does not make them useable as precedent. Precedent based on a flawed reading of the rule is not legitimate and incorrect past practice is no justification for future action.

Having addressed the legal contention and first argument, we move on to the second, more central question, for which testimony and evidence is more important. Mr. Alterman claims that the Ayers/King event was not a union project but was instead put on solely by the clubs Democracy for America (DFA) and Students for a Democratic Society (SDS). Though Mr. Melman and Mr. Hirschhorn are senators, they also hold executive board positions in DFA. Mr. Alterman contends that it was in their position as club leaders, not senators, that the event was being planned. Both sides presented evidence of the extent of the Senate’s involvement, including the participation of the Senate Social Justice Committee (SJC) that Mr. Hirschhorn co-chairs. We also evaluated the written documentation submitted.

All of the testimony from members of DFA indicated that the club hoped to make the Ayers/King event their biggest event of the semester. In their request to FBoard, DFA requested to $1500 for the Ayers event alone. However, when they received $1500 for all of their proposed semester activities, they chose to devote only $400 of that to bring Mr. Ayers to campus. How DFA decides to apportion their money is entirely their own concern, but it is relevant for this court to see that the club’s self-proclaimed biggest event merited less than a third of both the club’s budget and the event’s expected costs.

After obtaining $100 each from the History and PAX departments, DFA and SDS applied for a $1400 Brenda Meehan Social Justice Grant on February 5th. On their application they listed the Student Union and the AAAS Department as potential financial co-sponsors, writing, “In addition to applying for this grant, we are also trying to get funds from the…Student Union.” No evidence presented to the court corroborates the statement that on February 5th either club had actively solicited funds from the Student Union. In fact, quite to the contrary, DFA Campaign Coordinator Liza Behrendt testified that she was initially more concerned with “intellectual [and] human resources” than financial ones. Except for an early phone call to Student Union President Gray for advice on a speaker’s panel but no promise of support, it does not appear that anyone on the Student Union outside of DFA was even aware of this event until the SJC meeting on February 12th. At that meeting, Class of 2012 Senator Supreetha Gubbala testified, Bill Ayers was brought up and certain SJC members expressed a willingness to be involved but no plans of any kind were made.

It is difficult for this court to believe that the SJC’s non-Senate co-chair would have been unaware of the SMR until it had already been introduced, if in fact the SJC had been actively involved and the groups had always intended to seek financial support from the Senate discretionary (as the grant proposal indicates). At that point the Senate was asked to become the event’s 2nd largest contributor, after SDS, giving $500 more than DFA—the group that initially conceived the idea and claims it as their club’s most important event of the semester. It lends credence to Mr. Alterman’s case that the Senate was approached only when the event was in financial jeopardy.

It is unclear when DFA and SDS learned that they would only be receiving $400 of the $1400 they had requested from the Brenda Meehan Grant, but on February 23rd the SMR introduced to the Senate asked for almost exactly what they did not get from the social justice grant: $400 for Mr. Ayers and $500 for Mr. King. Prior to the SMR, all collaboration with the Student Union was theoretical. DFA, as Ms. Behrendt explained, “envisioned” Student Union involvement and SJC members indicated that they would like to help, but no collaboration had actually occurred. Mr. Melman and Mr. Hirschhorn contend the only reason the SJC had not provided any demonstrable help was because no concrete planning had been done. However, even if the space had not been booked or flyers put up, the SJC might have assisted in other ways, such as procuring money from non-Senate sources, contacting Brandeis police about security costs, or coordinating dates between the speakers and other on-campus events. DFA and SDS had begun certain tangible preparations even before all their funding was perfectly secured.

The most persuasive evidence of the SJC’s involvement came after the passage of the SMR. However we believe that actions undertaken after the Senate’s commitment of finances must be considered irrelevant for our purposes, coming as they did after a challenge to the SMR had already been accepted for review by the UJ. In evaluating the evidence presented to us during our deliberations, we were struck by how concentrated the activity for this event was around the UJ’s grant of certiorari last Tuesday and the hearing on Saturday.

The Senate discretionary exists to enable projects by senators and senate committees that cannot ask the FBoard for funds, not to supplement the funds of clubs that do not get all they want or need. This semester has seen the collapse of many worthwhile and important programs by valuable clubs for want of funds. If all of those clubs partnered with a Senator in order to gain access to the Senate discretionary, the Senate would spend more time hearing requests for projects that are only tangentially related to the Union than performing and funding their own body’s advocacy efforts.

It is this Court’s determination that in order to qualify as a union project, the project must, at the very least, represent a true collaborative effort between the Union and another individual or group. It is not necessary for the Union to initiate every idea or project its members work on, but they must be substantially and actively involved. In this case, it is impossible to parse exactly where Mr. Melman and Mr. Hirschhorn’s roles as senators left off and their roles as club leaders began, but this court believes that though senators were involved, this was not a Union project.

Since we find that the event was not a Union project as defined in Article IX, Section 1 of the Bylaws, SMR S09-5 is illegitimate and was wrongfully passed by the Senate in violation of the Bylaws.

Therefore we the members undersigned of the Union Judiciary find for Eric Alterman and order that SMR S09-5 be declared null-and-void. We request that the Treasurer take any necessary and proper action to comply with this verdict.

Chief Justice Rachel Graham Kagan

Joined by:

Jordan Rothman, Associate Justice

Matt Kriegsman, Associate Justice

Julia Sferlazzo, Associate Justice

Judah Marans, Associate Justice

Concurring Opinion by Associate Justice Matt Kriegsman:

I agree with everything in the majority opinion of the court, but would like to add a few comments.

One big issue worth addressing is the manner in which the Senate of the Student Union was notified of its involvement with Ayers and King. Melman and Hisrchhorn testified to their involvement with their project as both Senators and as leaders within their organizations. Due to the nature of our campus, students at Brandeis University are able to hold many different positions and roles within various clubs and organizations on campus; it would be unfair to inhibit leaders within these communities to compromise their fairly elected and appointed leadership positions on campus, considering that the Roberts Rules only suggests that a Senator recluse himself under his own discretion and very serious consideration. But while the program which has come together is certainly worth noting as a great example of activism, drive, and determination, values which our campus thrives upon, the means by which these programs are implemented are just as important as the programs themselves.

After reviewing the testimonies and the information regarding the process in which the Student Union Government was involved, only few members were notified and active with regard to the event. If the program was intended to truly be a part of the Student Union Government, the entirety of the Student Union Senate should have been in some way equally aware of its involvement and support. While current practice is that Senate projects are intended as advocacy initiatives which directly benefit one’s constituents, and usually not made aware to the entire union government, perhaps there should be some way for other Senator’s to simply be informed of the process. Especially when the court reviewed the manner in which the funds were requested, the situation suggested that members of the Student Union were not only forced to decide if the event was something they agreed to support, but also one that they were asked to fund by a specific amount.  Eric Alterman, the Petitioner in this case, proves this example. While he supported the event, his concern, and the crux of the case, was the process by which the program was brought to the full attention of the entire Senate and the means by which many members of the Senate felt it was merely being used as a monetary club supporter.

The integrity of our constitution is compelling enough to uphold a more methodical and clear process by which Student Union Projects are accepted, implemented, and funded. At the very least, this will create unity, direction and a sense of community within the Senate.

Matt Kriegsman, Associate Justice

Joined by: Jordan Rothman, Associate Justice

Concurring Opinion by Associate Justice Judah Marans:

It is worth noting that we, by declaring null and void SMR S09-5, do not mean to say that it is intrinsically an inappropriate piece of legislation. The actions of the senators who proposed this Senate Money Resolution are not explicitly unconstitutional. Indeed the event that they were planning would undoubtedly add to the student community.

This court is admittedly looking past the letter of the law. There clearly was some extent of Student Union involvement in the planning of this event aside from the Senate vote to pass the SMR. However “irrelevant” and “concentrated” that involvement, as the majority opinion states, may have been, it nevertheless did exist. And that’s all that it would seem is required in order to officially call an event a “Student Union Government project[] and/or operation[]” (Bylaws, art. IX, §1, cl. 9). This SMR would be prima facie valid.

We are enforcing not just the letter of the law but instead have aimed at developing a broader sense of this particular case in order to ensure that the spirit of the law is upheld as well. And this court does not get the sense, though there was some Senate involvement, that this event is fundamentally a Senate project. We interpret Article IX, §1, cl. 9 of the Bylaws as implying requiring not just official but also intrinsic and fundamental Student Union Government involvement, such that without it the event and its planning from the start would be different in essence. This is the reasonable interpretation of this clause; it’s how a “normal” reader would naturally understand the meaning of “Student Union Government projects and/or operations,” and is how we hereby define it. (For a brief discussion of this kind of constitutional interpretation, see Farber, Daniel, William Eskridge, Jr., and Philip Frickey. Constitutional Law. 3^rd ed. USA: West Group, 2003, p. 122.)

Also, senators who have a so-called conflict of interest are not categorically obligated to recuse themselves from such votes. As the claimant pointed out, the Senate must abide by Robert’s Rules of Order during its meetings (Bylaws, art. V, §1), which say that a member “should” recuse himself from these votes. However, unlike other practices in Robert’s Rules, the issue of recusal is not presented as a black-and-white requirement but instead is put forth as a strong sort of guideline. In any case, this was far from the kind of “pecuniary” conflict of interest we hear about in the national political world; to be sure the “conflict” here is nothing other than the good-natured desire to bring a speaker to a university campus. Also, ours is a small campus with inevitably overlapping extra-curriculars and it would be easy to argue for the presence of a conflict of interest in a good deal of cases.

Indeed the distinction between the Finance Board and Senate – that students in their capacity as F-board members are to remain aloof from the inner workings of clubs, while those in their capacity as senators are to be more connected to their student and club constituents – is valid. To be sure, as the respondents pointed out, those running for F-board may not receive club endorsements, while those running for Senate may.  The issue is not whether the senators should necessarily have recused themselves as much as it is whether the Student Union involvement was disingenuous. Had this truly been a Student Union event, it may not necessarily have been unconstitutional for the senators to advance something that they, and a club of which they are a part, are interested in, an interest that happens to be manifest in leadership of that particular club.

Notwithstanding, to allow the SMR to stand would pave the way for allowance of suspect legislation. It would weaken the definition of “Student Union Government” and would lower the standard of Student Union leaders and their projects, and of the meaning of the Brandeis Undergraduate Student Union in general.

We are not convinced that this is fundamentally a Student Union project. The overturning of SMR S09-5 can serve as an opportunity to encourage student leaders to be sui generis, as well as innovative and creative, in their initiated projects.

Associate Justice Judah Marans

Concurring Opinion by Associate Justice Jordan Rothman:

Seeing both sides of the case recently before the Union Judiciary, and after having had considerable time to think over the facts and issues at hand, I have come to side with unanimous opinion of this court, and deem the recent Senate Money Resolution to be unconstitutional. Believing that certain issues are not fully addressed by the majority opinion, I humbly submit this concurring opinion to relate the reasoning behind my decision in this case.

I agree with all the statements made by Chief Justice Graham Kagan in her majority opinion. However, the issue of recusals became a subsidiary point addressed by both sides in the trial, and helped me see the correctness of the claimant’s arguments in this case. The respondent has suggested that simply by passing an SMR, the Ayers/King event had become a union project and was therefore constitutional. The Chief Justice has already noted the fallacy of this argument, but certain statements made by the claimant also demonstrated the shortcomings of this line of reasoning. Since the vote was so close, the votes cast by Alex Melman and Lev Hirschhorn were critical in passing the resolution at hand. Yet, as the testimony of Andrew Brooks suggested, had these senators recused themselves, this resolution would not have passed. The respondents claimed that they should not have recused themselves for two reasons. One was because if they did, the sophomore class would not have representation and also because the senate was a political body that had inherent biases. These arguments have serious shortcomings since Sophomores and every undergraduate student on campus, in fact, have multiple senators representing them from quad senators, the senators at large and in some instances, the racial minority senator as well. Also, when the senate took upon itself the role of financial delegator and cast off its exclusive responsibility as an advocacy group, it then should have taken on the responsibilities inherent with delegating financial resources. Namely, this includes recusing oneself from a vote when pecuniary interests can cause bias. Overall, the senators not following this course of action seemed unjust as they were unfairly using their influence in order to promote their own clubs in a somewhat dishonest manner. Hopefully such activity will not occur in the future since the senate should no longer be acting as such a financial resource to clubs. Nevertheless, it is good to put an end to this practice, since it unfairly utilizes influence to unequally attempt to attain financial resources.

I would also like to note that this case falls in line with the philosophy of the Student Union initiated by the landmark SAF amendment. Few of us can remember what it was like before this legislation was passed, as the financial system of the student body was scattered and unfair at best. Numerous organizations were given vast amounts of money, and had authority to become “shadow f-boards” in order to shell out these funds. This was unfair, as the Finance Board was the only financial organization elected by the entire student body, and had the mission of equally and impartially determining which groups should receive financial resources. This amendment increased transparency, equal access, and by giving more authority to the Finance Board, made sure that only one source was the arbitrator of Student Union club funds. Overall I am happy to be promoting this trend in Student Union policy, as the recent decision will eliminate unequal funding sources and ensure that those elected to delegate funds to clubs are the exclusives ones doing so.

With all of these points in mind, I wholeheartedly side with the claimant in this recent case. I hope that future SMRs are only be passed to support genuine Union initiatives that do not have the Finance Board from which to acquire financial resources.

Humbly Submitted,

Jordan Rothman

Associate Justice, Student Union Judiciary