The legal landmines hiding in Student Government's finance codes

Every undergraduate at the University of South Carolina pays a mandatory student activity fee. That money flows into a pool controlled by Student Government, and the Student Senate Finance Committee decides which student organizations get a share. The rules governing that process are written in Chapter 3 of the Student Government Codes, and they read like a document nobody with legal training ever reviewed.

That is not a rhetorical jab. The codes contain provisions that conflict with established Supreme Court precedent, lack procedural protections required by the Fourteenth Amendment, claim quasi-judicial powers that do not exist under South Carolina law, and impose classifications that may violate Title IX. Any one of these issues could expose the university to a federal lawsuit. Together, they represent a systemic liability that the administration has either failed to notice or chosen to ignore.

We read the entire Student Government codebook. What follows is a section-by-section analysis of the provisions most likely to land USC in court.

The viewpoint neutrality problem

Section 3-5-10(C) of the Student Government Codes states that student organizations “shall neither be discriminated against nor given preferential treatment based on their viewpoint, in compliance with university policy and federal, state, and local law.”

That sounds good. The problem is everything that follows it.

The Finance Committee has nearly unchecked discretion to approve, partially approve, or deny any funding request. The codes authorize the Student Body Treasurer to unilaterally create “Guidelines for Funding Allocation,” which the Finance Committee then approves by majority vote (Section 3-4-20(A)(1)). These guidelines are not embedded in the codes themselves. They can be revised annually, or on an emergency basis at any time with a two-thirds committee vote. The guidelines are, in practice, whatever the current Treasurer says they are.

The Supreme Court addressed exactly this structure in Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000). The Court held unanimously that mandatory student activity fees are constitutional only if distributed with viewpoint neutrality. When a public university requires students to pay into a fund that supports expressive activities, the First Amendment demands that the allocation process be structurally neutral, not just nominally so.

Five years earlier, in Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995), the Court held 5-4 that the University of Virginia engaged in viewpoint discrimination when it denied Student Activities Fund reimbursement to a Christian student publication. Once a university creates a funding forum through student fees, it cannot exclude organizations based on their viewpoint.

On remand from the Supreme Court, the Seventh Circuit in Southworth v. Board of Regents, 307 F.3d 566 (7th Cir. 2002), spelled out what viewpoint neutrality actually requires in practice. The court held that public universities must establish “procedural safeguards such as funding guidelines and avenues of prompt impartial review.” Without “specific and concrete standards,” student government bodies exercise “unbridled discretion” that enables viewpoint discrimination.

The USC codes fail this test on every count. The guidelines lack specific, concrete standards that constrain discretion. There is no requirement that the guidelines themselves be viewpoint neutral. The Finance Committee can deny funding with a written explanation (Section 3-4-20(C)(2)), but the codes do not require that explanation to reference any objective criteria. And there is no appeal to a nonstudent, impartial decision-maker. The entire system runs through the same student government body that made the initial decision.

The Second Circuit reinforced this in Amidon v. Student Association of the State University of New York at Albany, 508 F.3d 94 (2d Cir. 2007), holding that allocation mechanisms must not “inject a substantial risk of undetectable viewpoint discrimination into the allocation process.” The court noted that “the whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views.”

USC’s finance codes do not meet this standard. They say the right words in Section 3-5-10(C), and then build a system that makes those words unenforceable.

Funding suspension without due process

Section 3-5-20 of the codes allows the Finance Committee to suspend any student organization from receiving funds for the remainder of the fiscal year. The threshold is a two-thirds vote of Finance Committee members. The trigger is a finding that the organization “utilizes funds for purposes other than those for which they were allocated or submits falsified documentation or in a manner that breaches university policy, Student Government Codes, federal law, state law, and/or local law.”

Read that again. The Finance Committee, a group of student senators, can unilaterally determine that a student organization violated federal or state law and strip its funding for an entire year. There is no hearing. There is no requirement that the organization be notified of the specific charges before the vote. There is no opportunity for the organization to present its side. There is no written finding. There is no appeal.

This is a due process problem under the Fourteenth Amendment. In Goss v. Lopez, 419 U.S. 565 (1975), the Supreme Court held that even for a 10-day suspension from a public school, students are entitled to oral or written notice of the charges, an explanation of the evidence, and an opportunity to present their side of the story. For more severe deprivations, more extensive procedures are required.

A full fiscal-year funding suspension is a severe deprivation. Under Healy v. James, 408 U.S. 169 (1972), denying recognition and the benefits that flow from it to a student organization at a public university implicates First Amendment rights of association. Once you combine the severity of the deprivation with the total absence of procedural protections, the Mathews v. Eldridge balancing test, 424 U.S. 319 (1976), weighs heavily against the current system.

The private interest is significant. The risk of erroneous deprivation through existing procedures is high, because there are essentially no existing procedures. And the government’s interest in financial accountability does not justify dispensing with all procedural protections. Giving organizations notice and a hearing before suspending their funding for a year is not an unreasonable administrative burden. It is the constitutional minimum.

The summons power that does not exist

Chapter 6 of the Student Government Codes grants the Finance Committee, among other bodies, the power to issue summons to student organizations. These summons can “compel the attendance of witnesses and the production of such correspondence, books, papers, documents, recordings, electronic files, etc.” (Section 6-5-30(A)). Witness statements and documents submitted in response to a summons are “subject to the penalty of perjury” (Section 6-5-30(B)).

This is remarkable. A committee of student senators claims the power to compel document production from other students under threat of criminal penalty.

Under South Carolina law, this power does not exist. Subpoena authority in South Carolina is vested in clerks of court and attorneys as officers of the court (SC Rule of Civil Procedure 45). Administrative subpoena power must be explicitly conferred by statute. For example, the State Law Enforcement Division has limited administrative subpoena power only with Attorney General authorization under S.C. Code Ann. Section 23-3-75. No statute confers subpoena power on a student government body.

The perjury threat is equally hollow. South Carolina’s perjury statute, S.C. Code Ann. Section 16-9-10, applies to false testimony given “in any court of record, judicial, administrative, or regulatory proceeding in this State.” A Student Senate Finance Committee hearing is none of those things. The Finance Committee is not a court. It is not a judicial proceeding. It is not an administrative or regulatory proceeding within the meaning of the statute. Threatening students with perjury for statements made to a student government committee has no basis in South Carolina law.

The codes also raise Fifth Amendment concerns. Compelling testimony under threat of penalty, without advising students of their rights and without the procedural protections of a formal proceeding, creates self-incrimination risks if the information could be used in subsequent disciplinary or legal proceedings.

There is a further issue under FERPA, 20 U.S.C. Section 1232g. Financial records shared with or maintained by the university, including student activity fee expenditure records, may qualify as education records. Any compelled production that reveals personally identifiable student information raises FERPA compliance questions that the codes do not address.

The bottom line is that the Student Government Codes claim a power that South Carolina law does not grant, attach a criminal penalty that South Carolina law does not authorize, and do so without any of the procedural protections that would be required even if the authority were real.

Binary sex classifications in lodging requirements

Sections 3-5-50(C)(4) and 3-5-60(C)(2) of the codes require that “a minimum of two separate rooms must be allocated when attendees are of different sexes.” This applies to tournament travel and externally attended conferences funded by the Undergraduate Organizational Fund.

The provision assumes a binary sex classification. It does not acknowledge nonbinary, intersex, or transgender students, and it provides no guidance for how student organizations should handle lodging assignments for individuals who do not fit a male-female framework.

Title IX of the Education Amendments of 1972, 20 U.S.C. Section 1681 et seq., prohibits sex-based discrimination in educational programs receiving federal funding. In Bostock v. Clayton County, 590 U.S. 644 (2020), the Supreme Court held 6-3 that discrimination on the basis of gender identity is inherently discrimination “because of sex.” While Bostock was decided under Title VII in the employment context, its textualist reasoning has been applied to Title IX by multiple federal courts.

The current regulatory landscape for Title IX and gender identity is in flux. The Biden administration’s 2024 Title IX Final Rule explicitly extended protections to gender identity, but that rule was vacated by a federal district court in early 2025. Regardless of regulatory status, Bostock remains binding Supreme Court precedent, and its logic applies to the language of Title IX, which uses the same “because of sex” framework as Title VII.

The practical effect of the codes’ binary classification is that student organizations receiving SG funding must sort their members by sex when booking hotel rooms for funded travel. This forces organizations into a classification exercise that could result in discriminatory treatment of transgender and nonbinary students, and it creates no mechanism for organizations to handle these situations in a way that respects students’ gender identity.

The legal risk here is less certain than the viewpoint neutrality and due process issues, because the regulatory and judicial landscape continues to shift. But the codes’ rigid binary framework is at minimum out of step with the direction of federal law and creates unnecessary legal exposure for the university.

Open meetings and the South Carolina FOIA

The Student Government Codes require that approved budgets be “made publicly available online” (Section 3-2-20(D)). But the codes say nothing about whether Finance Committee deliberations, where the actual funding decisions are made, must be open to the public.

This matters because USC is a public university, and the South Carolina Freedom of Information Act, S.C. Code Ann. Section 30-4-10 et seq., has a broad definition of “public body.” Under Section 30-4-20(a), a public body includes “any organization, corporation, or agency supported in whole or in part by public funds or expending public funds, including committees, subcommittees, advisory committees, and the like of any such body.”

The Finance Committee allocates mandatory student activity fees collected by a public university. These are public funds. The committee exercises authority delegated by the university to disburse those funds. Even if student government is characterized as merely advisory, SC FOIA explicitly covers “advisory committees” of public bodies.

Under Section 30-4-60, “every meeting of all public bodies shall be open to the public unless closed pursuant to Section 30-4-70.” Section 30-4-80 requires written public notice of regular meetings and at least 24-hour notice for special meetings. Section 30-4-100 prohibits circumvention through “chance meeting, social meeting, or electronic communication.”

If the Finance Committee is subject to SC FOIA, and the statutory language strongly suggests it is, then every closed-door deliberation over a funding request is a potential violation of state law. The codes’ silence on open meetings does not create an exemption from the statute. It just means nobody built compliance into the process.

The mandatory fee and the discretion gap

Tying these issues together is a structural problem that runs through the entire finance code. Every undergraduate at USC pays the student activity fee. Under Southworth (discussed above), this compelled payment is constitutional only because the distribution mechanism is viewpoint neutral. But the codes vest enormous discretion in two actors: the Student Body Treasurer, who writes the funding guidelines, and the Finance Committee, which applies them.

The Treasurer is a single elected student official. The Finance Committee is a group of student senators. Both are political actors with political viewpoints. The codes do not require the Treasurer’s guidelines to be viewpoint neutral. They do not require the Finance Committee to apply objective criteria. They do not provide for an appeal to anyone outside the student government structure.

The Eighth Circuit’s decision in Business Leaders in Christ v. University of Iowa, 991 F.3d 969 (8th Cir. 2021), illustrates what happens when subjective discretion meets viewpoint-sensitive decisions. The court found that the University of Iowa engaged in viewpoint discrimination by selectively enforcing its Human Rights Policy against a Christian student organization while allowing other groups similar latitude. The court denied qualified immunity to university officials, calling it a “clear example of viewpoint discrimination.”

The USC codes do not create the same kind of selective enforcement. But they create the conditions for it. When the standards are vague, the discretion is broad, and the decision-makers are political, the risk of viewpoint discrimination is structural, not hypothetical.

The $10,000 cap and undefined override

Section 3-5-30(B)(4) caps each student organization at $10,000 from the Undergraduate Organizational Fund per fiscal year. That is a reasonable limit on its face. But Section 3-5-30(B)(4)(i) immediately undercuts it. The Finance Committee may allocate funds to an organization that has exceeded the $10,000 cap with a two-thirds vote of the committee.

That is the entire provision. There are no criteria for when the override is appropriate. There is no definition of what circumstances justify exceeding the cap. There is no requirement that the committee explain why one organization gets an exception and another does not. There is no impartiality standard. The codes do not even require a written justification.

This is another textbook unbridled discretion problem under the Southworth framework. A spending cap that can be waived at will, with no standards governing the waiver, is not a cap. It is a tool for selective treatment. An organization favored by the current Finance Committee gets the override. An organization that is not favored hits the wall at $10,000. Both outcomes are legal under the codes as written, because the codes impose no constraints on when the override is granted.

Under the Seventh Circuit’s remand opinion in Southworth (cited above), 307 F.3d 566, the absence of “specific and concrete standards” for discretionary decisions is itself a constitutional deficiency. The override provision lacks any such standards. It does not define what qualifies as an exceptional circumstance. It does not require that overrides be applied consistently across organizations. It does not require that the committee’s reasoning be documented or reviewable.

The result is that two organizations with identical funding needs can receive different treatment based entirely on the subjective preferences of the committee members present at the vote. That is precisely the kind of “undetectable viewpoint discrimination” the Second Circuit warned against in Amidon (cited above). And because the override requires only a two-thirds committee vote rather than a full Senate vote, it happens at a level with even less visibility and accountability than the regular allocation process.

Equipment as university property

Sections 3-5-40(E) and 3-5-70(C) of the codes state that equipment purchased by a student organization with student activity fee funds “becomes property of the University of South Carolina.” Student organizations must include an on-campus storage plan for inventoriable items, and all usage must be monitored by the organization’s faculty advisor.

This provision is consistent with S.C. Code Ann. Section 59-117-60, which vests all university property in the institution. Since the funds originate from fees collected by a public university, the legal argument for university ownership is reasonable.

The due process concern is narrower but real. The codes do not require that organizations be clearly informed at the time of their funding request that any equipment they purchase will not belong to them. If an organization’s funding is then suspended under Section 3-5-20 without a hearing, the combined effect is that the organization loses both its funding and the equipment its members paid for through mandatory fees. The organization has no process to contest either outcome.

Workshop attendance as a gatekeeping mechanism

Section 3-5-30 requires that a student organization representative attend a Treasurer’s Workshop before the organization can submit an allocation request. The workshops are held monthly during fall and spring semesters, and organizations that cannot attend may request a substitute meeting with the Treasurer or a staff member.

This seems reasonable on its face. But it creates a single point of failure for an organization’s funding access. If the designated representative becomes ill, has a disability that prevents attendance, faces a scheduling conflict with religious observance or work, or simply cannot make the available dates, the entire organization is barred from requesting funds.

Title II of the Americans with Disabilities Act, 42 U.S.C. Section 12101 et seq., requires that public entities ensure all programs and services are accessible to individuals with disabilities. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Section 794, prohibits disability-based discrimination in programs receiving federal financial assistance. The codes do not require that workshops be offered in accessible formats, at multiple times, or with accommodations beyond the substitute meeting option.

More broadly, any prerequisite that functions as a barrier to accessing the funding forum must itself be viewpoint neutral and not unduly burdensome under the Southworth framework. If the Treasurer uses the workshop to communicate funding guidelines that the Treasurer unilaterally created, the workshop becomes a transmission mechanism for potentially viewpoint-biased standards.

What this means for USC

None of these issues require a hostile plaintiff to become real problems. They are structural deficiencies in a system that handles mandatory student fees at a public university. The law in this area is well established. The Supreme Court decided Southworth twenty-six years ago. Rosenberger is over thirty years old. Goss v. Lopez is over fifty years old. These are not cutting-edge legal theories. They are settled constitutional requirements that USC’s student government codes do not meet.

The fix is not complicated. The university needs to require objective, written criteria for funding decisions. It needs to establish a meaningful appeal process that includes review by a nonstudent, impartial administrator. It needs to add notice-and-hearing requirements before any organization’s funding is suspended. It needs to remove the summons and perjury provisions that have no basis in state law. It needs to update the binary sex classifications in its lodging requirements. And it needs to ensure that the Finance Committee’s deliberations comply with the South Carolina Freedom of Information Act.

The Student Government Codes were last adopted on March 9, 2020 (Section 9-10). In the five years since, nobody appears to have measured them against the legal standards they are required to meet. That is a failure of oversight by the university administration, which ultimately bears responsibility for how mandatory student fees are collected and distributed.

Students deserve a funding process that is fair, transparent, and legally sound. Right now, they are paying mandatory fees into a system that is none of those things.