Update at 12:58 p.m. on Thursday, Feb. 7:
ASUO Senate President Montse Mendez-Higuera forwarded the Emerald her original email to the ASUO Constitution Court asking for a motion for clarification, which asks the court to review the proposed resolution and determine if it is constitutional.
The email consists of a list of questions from the court that Mendez-Higuera answered. Her responses are in italics, and the questions are in bold. The series of questions and answers are listed below:
Question presented for review:
Is the entire BDS Resolution approved by Senate in Spring approved by the Constitution Court? What are the steps we can take as a Senate body to get it approved if it wasn’t already? Was the “administrative action” taken to strike down the financial piece of the resolution constitutional and/or legal?
List the specific constitutional provisions, rules, policies, or resolutions relevant to this Motion. Please write down the substance of the specific constitutional provisions, rules, policies, or resolutions, not just the number.
Section 11. 15 of the Constitution states that: All rules, resolutions, and policies established by the ASUO Executive office, the ASUO Programs Finance Committee, Athletics and Contracts Finance Committee, Department Finance Committee, the EMU Board, and the Student Senate shall be reviewed and approved by the Constitution Court for compliance with the ASUO Constitution before going into effect. All such rules, resolutions and policies shall take effect as promulgated unless declared unconstitutional by the Constitution Court upon review. The Court shall respond as required in Sec. 11.10.
A brief statement of facts giving rise to this Motion:
In the Spring term of 2018, our ASUO Senate voted on the BDS Resolution. The resolution was passed. However, within a few days, a form was uploaded to our ASUO website informing us of “administrative action” that was used to strike down the financial piece of the resolution. This can be found on our website still under “about us” - “news and announcements”. The student group that led this resolution (SUPER) is concerned because of the following points:
It is vital for ASUO to operate according to its procedures regardless of interference from the administration.
Specifically, ASUO procedures call for the Constitutional Court to review the resolution before the Senate action is final.
Under Oregon state law, if the president or trustees take issue with a student government decision on the use of fees, there are standards that they must meet and procedures that they must follow in order to dispute the decision of the student government. The administration did not meet these legal standards or comply with these procedures when it unilaterally struck out a portion of the ASUO resolution in the spring.
Allowing the administration to act unilaterally without meeting the requirements and following the procedures that are in place amounts to voluntarily relinquishing autonomy students have strived for so long to earn and maintain.
ASUO can defend itself and the entire student body by simply carrying forward with its internal procedures as though the administrative action did not take place.
Please provide a timeline for the review and an explanation of how SUPER can participate in this process to ensure a proper and fair review of the resolution.
Please provide your suggested interpretation or understanding of the constitutional provision, rule, policy, or resolution (if applicable):
My understanding is that the ASUO has full autonomy of its resolutions and the only entity that can finalize the approval of a resolution (or strike it down if found unconstitutional) would be the Constitution court.
Please provide a brief statement explaining any exigent circumstances requiring the Court to act in an expedient matter (if applicable):
There is a deadline of November 1st for financial resolutions to be submitted by, so we would like to know before that if this resolution is able to take full effect for this fiscal year, so we can proceed with the next steps of implementation according to the constitution.
The Associated Students of the University of Oregon Constitution Court ruled Thursday that the “Boycott, Divestment, Sanctions” resolution passed last spring by the ASUO Student Senate violates the ASUO Constitution.
The resolution encouraged, but did not mandate, the university to boycott companies, such as Motorola, SodaStream and Sabra, that proponents of the resolution say support Israel’s occupation of Palestine.
The judicial branch of UO’s student government wrote that the resolution does not comply with the “viewpoint-neutral” position that public universities must follow when distributing student fees.
The position is that public universities must administer student fees in a way that does not advocate for “a particular point of view,” and it comes from the 2000 U.S. Supreme Court ruling held in Southworth v. The Board of Regents of the University of Wisconsin System.
For the ASUO Senate — the branch of student government that distributes these fees — the court’s opinion applies when governing over student fees such as the incidental fee, which all students pay to cover the cost of student groups' budgets, tickets for athletic events and bus service for UO students in Lane County. The Senate manages about $16 million dollars in incidental fees, according to the official ASUO website.
In a similar manner to the Supreme Court, the ASUO Constitutional Court has the power to review all resolutions passed by the Senate to ensure they abide by the ASUO Constitution, according to section 11.15 of the ASUO Constitution. This power is an “inherent function of the ASUO’s system of checks and balances,” the court wrote in its ruling.
Additionally, the court held that sections 2.3 and 2.4 of the ASUO Constitution confirmed the resolution was unconstitutional.
Section 2.3 forbids ASUO-funded programs from “abridging the privileges and immunities of any person or program” under UO, state and federal law. Section 2.4 also forbids denying access to activities paid for with student fees based on “sex, race, religion, age, sexual orientation, marital status, disabled, political view, national origin or any other extraneous considerations.”
These sections, the court argues, compel the court to comply with the U.S. Constitution and to determine that the BDS resolution violates the ASUO Constitution.
The original BDS resolution passed by Senate can be read here. The resolution states that it is binding; however, the court’s opinion held that it was a non-binding resolution.
The court’s decision to inquire about the constitutionality of the resolution began after Oct. 28, 2018, when ASUO Senate President Montserrat (Montse) Mendez-Higuera filed a motion for clarification. These motions ask the court to determine if a new rule complies with the ASUO Constitution, according to section 6.6 of the ASUO Constitutional Court bylaws.
Students United for Palestinian Equal Rights, the student group that first introduced the resolution to the Senate, did not reach back out for comment as of publication. The Emerald will update this article as soon as they respond.
Correction: A previous version of this article referred to Students United for Palestinian Equal Rights as "Students United Against Palestinian Rights."