IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

Now before the Court are the motion of plaintiff Associated Students of the University of California at Riverside ("ASUCR") for summary adjudication and the cross-motion for summary adjudication of defendants Regents of the University of California and C. Judson King ("the Regents"). This lawsuit challenges the constitutionality of the Regents' policy prohibiting the use of student activity fees for lobbying by official student government organizations. The Regents assert as an affirmative defense that the policy is required by the California Supreme Court's decision in Smith v. Regents of the University of California, 4 Cal. 4^th 843 (1993). The issue before the Court on these cross-motions is whether Smith, and the United States Supreme Court cases upon which it relies, require the absolute ban. After carefully considering the papers submitted by the parties, and having had the benefit of oral argument on January 8, 1999, the Court concludes that Smith does not require the ban.

BACKGROUND

Plaintiff ASUCR if the official student government organization of the University of California at Riverside. ASUCR, like many student organizations, receives funding from a student activity fund generated by mandatory fees paid by all registered UCR students. Since the student activity fund was created, in and around 1954, the Regents permitted student organizations, including official student government organizations, to use their share of the fund for political and ideological activities, including lobbying, provided that such organizations did not engage in "partisan" political activity.

In 1979, several students filed a lawsuit which challenged the constitutionality of the mandatory student activity fee in three respects: (1) funding of registered student organizations that engage in political and/or ideological activities, (2) funding of student government lobbying, and (3) funding of the Student Senates. The lawsuit resulted in the California Supreme Court opinion of Smith v. Regents of the University of California, 4 Cal.4th 843 (1993). The supreme court held that requiring students to fund student activities with which they disagreed implicated their First Amendment interests, but that in certain instances the Regents may compel financial support of student activities, although the right to compel is not unlimited. Relying on United States Court precedent, the Smith Court applied the following principles:

A university may, in general, support student groups through mandatory contributions because that use of funds can be germane to the university's educational mission ... . At some point, however, the educational benefits that a group offers become incidental to the group's primary function of advancing its own political and ideological interests ... . To fund such a group may still provide some educational benefits, but the incidental benefit to education will not usually justify the burden on the dissenting students' constitutional rights. Phrased in terms of the tests that courts have applied, a regulation that permits the mandatory funding of such groups is not "'narrowly drawn to avoid unnecessary intrusion on freedom of expression'" and it "unnecessarily restrict[s] constitutionally protected liberty, [when] there is open a less drastic way of satisfying its legitimate interest."

Id. at 858 (citations omitted).

With respect to the activities of the registered student organizations, the Smith, court concluded that the burden on the dissenting free speech rights outweighed the incidental educational benefit of the political and ideological activities of these groups. Id. at 862-63 The supreme court held that "the only practical way to protect the rights of dissenting students is to implement the procedures outlined in [Chicago Teachers Union v. Hudson, 475 U.S. 292, 301-310 (1986)] and [Keller v. State Bar of California, 496 U.S. 1, 16-17 (1990)]." Id. at 863. The supreme court explained that

[t]hese procedures will require the Regents to identify any groups that are ineligible for mandatory funding under the constitutional standards set out above and offer students the option of deducting a corresponding amount from the mandatory fee. ... Students who disagree with the Regents' calculation of the deducation will be entitled to the procedural safeguards articulated in Keller: "an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decision-maker, and an escrow for the amounts reasonably in dispute while such challenges are pending."

Id. (citations omitted).

The Smith court reached the same conclusion with respect to student government lobbying; namely, that the incidental educational benefit to the student lobbyists does not "justify the burden on all students' free speech and associational rights." Therefore as with the funding of the student organizations, the Regents must implement a Hudson-type procedure to protect the rights of the dissenting students. Id. at 866.

The question of whether the Regents could require support for the Student Senate was remanded to the lower court for evidentiary findings on whether the educational benefits of the Student Senate outweigh the burden on dissenting students' speech. Id. at 868. On remand, the trial court found, and the appellate court affirmed, that the educational value of the Student Senate outweighs the burden on free speech and that the Regents could continue to use mandatory fees to support the Senate without a refund or similar procedure. Smith, v. Regents, 56 Cal.App.4th 979 (1997) (Smith II).

In January 1997, in response to the Smith decision, the Regents promulgated a final written policy that imposes an absolute, unqualified prohibition on the use of mandatory fees to support lobbying by official student organizations. The policy permits the use of mandatory fees to support registered campus organizations even if their activities are predominantly political, religious, or ideological in nature, or they involve lobbying, so long as any student who objects to a particular group's philosophy or activities is entitled to a pro rata refund of his or her fees used to support that group.

The issue now before the Court is whether Smith prohibits the use of mandatory fees to support lobbying by official student government organizations even if a refund or other similar procedure is provided to objecting students.

DISCUSSION

The Regents argue that Smith held that fees could not be used to support student government lobbying even if dissenting students are not required to support such activities. The Regents base their argument on the following language of the Smith opinion:

the Regents may not collect from any student who objects, that portion of the mandatory fee that represents the cost of lobbying governmental bodies. Students who disagree with the Regents' calculation of the corresponding deductions will be entitled to the procedural safeguards set out above.

Smith, 4 Cal.4th at 866. The Regents contend that the Smith court could not have intended to hold that funding is permissible if an opportunity for a refund or a prepayment deduction is provided because such a holding would be inconsistent with the court's conclusion that student government lobbying is not educational.

The Regents' argument is unpersuasive because it misinterprets the Smith decision. First, Smith unequivocally held that student activity fees may be used to support student government lobbying provided that students who object to their fees being used for such purposes are not required to support the lobbying activities. The above passage highlighted by the Regents refers to the same procedure outlined in more detail in the earlier discussion in Smith of the procedural protections for students who object to activities of certain student groups. In particular, the passage implicitly incorporates the supreme court's holding that the funding may continue provided the Regents "implement the procedures outlined in Hudson." Id. at 863. There is nothing in the language or reasoning of Smith, or the cases upon which the court relies, that suggests that the court intended a different result for funding of student government lobbying than for funding of lobbying and other political activities by other student organizations. Indeed, the Regents' interpretation is plainly inconsistent with the following statement in the intrdocution to the Smith decision:

It goes without saying that all students are free to organize, to promote their ideas, and to seek by all legal means to persuade others that their views are correct. Moreover, the Regents may continue to fund student political activities through the fees of students who do not object. However the constitutional guaranties of free speech and association do not permit the state to make speech a matter of compulsion and coercion. As the present system of funding student activities has that effect, it cannot be continued without affording dissenting students an appropriate remedy.

Id. at 848 (emphasis added). The Smith court was referring to all of the activities challenged by the plaintiffs -- including student government lobbying. Thus, there is no question that under Smith, it is permissible to use student activity fees to fund student government lobbying provided dissenting students are not required to fund such activities.

Second, the Regents' contention that Smith held that student government lobbying has no educational benefit is belied by a plain reading of the decision. The supreme court merely held that the educational benefit of such lobbying is incidental to its political purpose, and that in light of the fact that the educational benefit is accorded to only a few student lobbyists, such benefit does not outweigh the burden on all students' free speech rights. Id. at 866.

In their reply memorandum the Regents argue for the first time that Smith does not permit collection of fees from dissenting students subject to a refund. In other words, that use of the fees to support lobbying is permissible only if the dissenting students deduct the requisite amount from their student activity fee in the first place, rather than being provided with a refund. This issue, however, is not before the Court since the policy that the Regents currently enforce absolutely prohibits the use of fees for student government lobbying even if the fees are collected from students who do not object. The policy does not provide a refund procedure or a procedure for deducting amounts prior to payment. Smith does not require such a policy. Indeed, the Regents' absolute ban on student government lobbying raises serious First Amendment and equal protection concerns since the Regents are prohibiting political speech, even when that speech is funded voluntarily by students and not by dissenting students. These issues, however, are not currently before the Court on the parties' motions.

CONCLUSION

For the foregoing reasons, the Court concludes that the Regents' absolute ban on lobbying by official student government organizations is not required by the California Supreme Court's decision in Smith v. Regents, 4 Cal.4th 843 (1993). Accordingly, plaintiff's motion for summary adjudication is GRANTED and defendants' cross-motion for summary adjudication is DENIED.

IT IS SO ORDERED

Dated: January 8, 1999 CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE