SMITH v. REGENTS OF THE UNIVERSITY OF CALIFORNIA

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Court of Appeal, First District, Division 1, California.

Averell SMITH et al., Plaintiffs and Appellants, v. The REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

ASSOCIATED STUDENTS of the UNIVERSITY of CALIFORNIA, Plaintiff, v. The SMALL CLAIMS COURT FOR the BERKELEY-ALBANY JUDICIAL DISTRICT of ALAMEDA COUNTY, Defendant; Brad SPARKS et al., Real Parties in Interest.

No. A020553.

Decided: January 13, 1992

Ronald A. Zumbrun, Anthony T. Caso, Richard M. Stephens, Pacific Legal Foundation, Sacramento, for Averell Smith, Arlo Smith, Adlai Smith, Alexa Smith, Jimmy Hom, and Brad Sparks. Arlo Hale Smith, San Francisco, for Thomas Kistler and Emily Taylor. Mark Himelstein, San Francisco, for the ASUC. James E. Holst, Christine Helwick, Fred Takemiya, Office of Gen. Counsel, Oakland, for the Regents et al.

This action challenges the validity of a mandatory student activities fee, collected by the University of California, Berkeley and used to fund certain activities of the student body organization, the Associated Students of the University of California (ASUC).

STATEMENT OF THE CASE

In 1979, four plaintiffs filed suit in superior court for declaratory and injunctive relief against the University and ASUC seeking to have the mandatory activities fee imposed upon all students who attend the University of California at Berkeley declared unconstitutional and in violation of statute.   (Smith v. Regents (Super.Ct. Alameda County, 1982, No. 519977–2).)   In 1980, 32 students from UC Berkeley sued ASUC in small claims court seeking a refund of the activities fee.   In response, ASUC filed suit in superior court to enjoin the small claims actions.  (Associated Students v. Small Claims Court (Sparks) (Super.Ct. Alameda County, 1982, No. 533997–6).)   The Smith case and Sparks case were eventually consolidated.

In 1982, the trial court granted a partial summary adjudication in favor of defendants UC and ASUC.1  The court concluded that “the mandatory student activities fee imposed on all students at the University of California, Berkeley, is constitutional and legal on its face and as applied.”   This order was interpreted as resolving issues of imposition and collection of the fees.   Left unresolved were issues relating to the expenditure and use of those fees.   For those issues, a trial was held without a jury.   The trial court ruled that the use of the fee to provide financial support for the ASUC activities was not invalid.   Judgment was entered in favor of defendants UC and ASUC.

Plaintiffs appealed to this court, and in 1988 this court affirmed the trial court's ruling.   The California Supreme Court, however, granted review and held the case until the United States Supreme Court decided Keller v. State Bar of California (1990) 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.2d 1.   The California Supreme Court then retransferred the case to this court for reconsideration in light of Keller.   For the reasons explained herein, we have concluded that Keller does not lead to a different result.   Accordingly, we affirm the judgment.

FACTS

For purposes of this appeal, we are bound by the established rules of appellate review and must view all factual matters in the light most favorable to the prevailing party and in support of the judgment.  (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925–926, 101 Cal.Rptr. 568, 496 P.2d 480.)   We recite the facts accordingly.

Since 1955, all students enrolling in the University of California, Berkeley, have been required to pay a student activities fee as a condition of enrollment.   At the time of the trial (1982), the fee was $12.50 per quarter.   Of that amount, the university retains $4 to pay off the bonds which financed the construction of the Student Union building on the Berkeley campus.   The remainder is transferred to the ASUC:  $1.50 to support the Ethnic Studies Program and $7 to finance the student government and student activities.

Since the early 1900's, the ASUC has been recognized by the university as the entity responsible for administration and management of student government and student activities on the Berkeley campus.   The ASUC is a nonprofit, unincorporated association, with a full-time staff of approximately 85–90 persons and a part-time staff of 250–400 persons, most of whom are students.

In addition to administering the student government and student activities, the ASUC also owns and operates a bookstore on campus and a ski lodge at Norden, California.   It also manages the student union building and Eshelman Hall.   The revenues from these business enterprises supplement the student activities fees.2

1. Student Government

The ASUC operates a student government through the ASUC Senate, a legislative (policy-making) body composed of 30 elected student representatives.   An adjunct body, the Graduate Assembly (representing graduate students), is made up of representatives elected by the various graduate departments.   Two delegates from the Graduate Assembly are members of the ASUC Senate.

The ASUC Senate meets weekly during the school year.   Occasionally, controversial public issues are brought before the Senate for debate, and a resolution is adopted expressing the “position of the ASUC.”   For example, during the several years preceding trial, the ASUC Senate passed resolutions to express ASUC's support of Amnesty International's campaign against political prisoners in Indonesia, support of gay and lesbian rights, the ERA, gun control, the reelection of Ron Dellums, and a Berkeley marijuana initiative.   And it adopted resolutions opposing torture in Uruguay, nuclear power, and draft registration.3

University officials have consistently viewed the ASUC Senate resolutions on matters of public concern as compatible with university rules or regulations.   The university's written policies declare in pertinent part:  “Student governments shall have the right to address and take positions on public issues.   Positions on issues taken by student governments shall not be represented as or deemed to be official positions of the University.   Compulsory student fees shall not be expended in support of such positions except for University-related purposes.”   Thus, what the university does not allow is the direct contribution of funds to support a particular cause.   The resolutions on public issues adopted by the ASUC Senate comply with the University's policies.   They do not involve the expenditure of funds, nor do they purport to represent the position of the university.

Moreover, university officials deem the ASUC student government an important part of the university's educational mission in that it serves to teach students about government;  it enables students to participate in governmental decision-making;  and it exposes students to the presentation of diverse views.

2. Student Activities Groups

The ASUC provides funding to about 150 student activities groups.   These student activities groups run the gamut from yell leaders and bicycle enthusiasts to Polish folk dancers.   Many of the groups advocate positions on political and ideological matters.4

The activities of these groups are confined to campus.   The groups attempt to educate fellow students about current issues and to generate debate.   They express their views by printing and/or distributing literature, staffing tables at Sproul Plaza, holding rallies or forums with one or more speakers, showing films and so on.   Some groups also urge political action:  they circulate petitions and encourage students to send letters or postcards to government officials.   None of the student groups purport to express the position of the university or of ASUC.

In order to obtain ASUC funding or to use university facilities, a student group must first register with the university.   That is, it must submit a copy of its constitution and the name of its student representative.   In this way, the university ensures that group members are in fact students and that the group complies with university rules and regulations.5  Any four students may form a group and register with the university, but registration is not required unless the group wants ASUC funding or wants to make use of university facilities.

Once registered, any student group seeking ASUC funding must submit an application for funding to the ASUC Finance Committee, identifying the group's membership, its membership requirements, its goals and a line/item request for expenditures.   The ASUC Finance Committee (composed entirely of students) reviews and investigates each application in accordance with the written ASUC guidelines to determine whether to approve the funding application.   The written guidelines provide, inter alia, as follows:  “The requested funds shall be used for purposes or programs related to the University or beneficial to the student body of the University of California․  [¶] The requested funds shall not be used for purposes or programs connected with partisan political activities or any ballot measure with the exception of non-partisan educational forums on issues of interest.”

Thus, student groups supporting partisan political activities (e.g., the Young Republicans or the Young Democrats) are not funded.6  Nor are religious proselytizing groups funded, although student activities groups with religious names (e.g., the Jewish Student Board, the Hindu Students Association, and the Moslem Students Society) are funded if the funds are used for cultural and educational activities and not for the expression or practice of religion.7

The Finance Committee recommendations are considered and passed upon by the full ASUC Senate as part of the annual ASUC budget.

Funding of student activities groups is content neutral.   There is no evidence that funding was approved or denied on account of a group's position on a particular issue.   Except as noted, any group is eligible for funding no matter what its political or ideological orientation.

Student activity groups are funded only on a reimbursement basis.   That is, each group must submit a voucher for reimbursement (or direct payment to a supplier) of every expense.   Payment is made only if the expense is consistent with the line/item budget approved by the ASUC Senate.8  No funds are transferred directly to student groups, nor are student groups permitted to maintain bank accounts.9

In the view of university officials, the funding of the student activities groups creates a forum for the exchange of ideas and serves an educational purpose.   Moreover, the political advocacy activities of the student groups are considered by university officials to be in accordance with the regulations.   All student groups are required to file with ASUC mid-year reports of their activities.   Failure to file those reports subjects that group to suspension of its unspent funds.   Funds will also be suspended if the group violates any university or ASUC rule or regulation.   The ASUC finance officer testified that none of the groups particularly challenged by plaintiffs (fn. 4, ante ) violate any university or ASUC rules or regulations.

3. ASUC Operations

In addition to funding student activity groups, the ASUC sponsors certain student-run operations, usually managed by a professional staff.   Funding for these operations is handled differently from the funding for the student activities groups, as the student operations are part of ASUC.   Budget requests for student operations are routed to the ASUC executive director and to the ASUC Operations Committee, which makes recommendations to the ASUC Senate.

The ASUC operations serve to provide information to the students and to represent the views of students to the community.   The activities and policies of these operations groups are monitored by oversight committees of the ASUC Senate.

At the time of trial, the funded ASUC operations included the following:

(1) A draft counseling center.

(2) A recycling project.

(3) A renters' assistance project, which assists students in small claims actions and gives information to students about their rights as tenants.   It also presents the student viewpoint at local agencies, e.g., the Berkeley Rent Stabilization Board, concerning proposed rent increases.

(4) An academic affairs office, which represents the student viewpoint to the faculty's Academic Senate.

(5) A campus affairs office, which works with the university and participates in university planning, e.g., advocating more student housing and urging the university not to cut basic student services in its budget reductions.

(6) A voter registration project, which mailed brochures to students alerting them to the ballot issues and encouraging them to register and to vote.10

ASUC also funds student lobbying organizations.   The U.C. Student Lobby works with representatives of other UC campuses on student-related issues before the State Legislature and state administrative agencies.11  This lobbying group, for example, opposed legislation that would prohibit the use of registration fees to fund abortions, supported legislation prohibiting discrimination against students in rental housing, opposed legislation prohibiting mandatory student fees for student activities groups, and supported legislation reducing the budget cuts for the university.12  The Berkeley Annex of the U.C. Student Lobby works on campus to publicize the positions taken by the U.C. Student Lobby and to encourage students to write to their legislators.   The Municipal Lobby lobbies local Berkeley city agencies on issues relating to students, especially on issues related to housing, rent control, restrictions on condominium conversions, and energy conservation.   It also recommends students for appointments to city boards and commissions.   The ASUC National Student Lobby lobbies Congress on student issues and encourages students to write their representatives.   On a national level, the issues of concern have centered on student financial aid.13

Under university regulations and ASUC guidelines, off-campus advocacy activities are permitted only when related to student business.   In the judgment of the university, the ASUC operations are university-related.

DISCUSSION

I. COLLECTION OF THE FEEA. Authority of the University

 Plaintiffs first contend that the university has no authority to impose a mandatory student activities fee.   The contention is meritless.

Originally created by legislation in 1867 (Stats. 1867–1868, ch. 244, p. 248), the University of California was given constitutional footing in 1879.   (Cal. Const., art. IX, § 9.)   The university is declared to be “a public trust” to be administered by the Regents of the university.  (Cal. Const., art. IX, § 9, subd. (a).)  The Regents are vested with “the legal title and the management and disposition of the property of the university․”  (Cal. Const., art. IX, § 9, subd. (f).)

The courts have construed this constitutional authority as giving the Regents virtual autonomy in governing the university.  “The Regents have been characterized as ‘a branch of the state itself’ [citation] or ‘a statewide administrative agency’ [citation].   It is apparent that the Regents as a constitutionally created arm of the state have virtual autonomy in self-governance (Cal. Const., art. IX, § 9).”  (Regents of University of California v. City of Santa Monica (1978) 77 Cal.App.3d 130, 135, 143 Cal.Rptr. 276;  see also Cal. State Employees' Assn. v. Regents of University of California (1968) 267 Cal.App.2d 667, 671, 73 Cal.Rptr. 449.)

The courts have viewed the Regents as having broad discretion and rule-making authority.  “ ‘ “The Regents have the general rule-making power in regard to the University ․ and are ․ fully empowered with respect to the organization and government of the University․”  [Citations.]  “[T]he power of the Regents to operate, control and administer the University is virtually exclusive.  [Citations].” ’ ”  (San Francisco Labor Council v. Regents of the University of California (1980) 26 Cal.3d 785, 788, 163 Cal.Rptr. 460, 608 P.2d 277;  see also Goldberg v. Regents of University of California (1967) 248 Cal.App.2d 867, 874, 57 Cal.Rptr. 463.)

The Legislature has expressly authorized the creation of a student body organization and the collection of mandatory student activities fees for the state college and university system.  (Ed.Code, § 89300.)   The funds collected are available for “such purposes of the student body organization as are approved by the trustees.”  (Ed.Code, § 89302.)   In addition, the funds collected are expressly allowed to be spent for lobbying activities.   (Ed.Code, § 89300.)   Similar statutory authority is provided for the community colleges.  (Ed.Code, § 76060.5.)

No such statutory authority exists for the University of California, and none is needed, because the university is a constitutional entity whose powers derive from the Constitution and not from the Legislature.   Management of the university has been removed from the Legislature and given to the Regents with “full powers of organization and government” and “all the powers necessary or convenient for the effective administration of its trust, including the power ․ to delegate to its committees or to the faculty of the university, or to others, such authority or functions as it may deem wise․”  (Cal. Const., art. IX, § 9, subds. (a), (f).)

The conclusion is inescapable that the university has the authority to assess mandatory student activity fees as a condition of enrollment.  (See Erzinger v. Regents of the University of California (1982) 137 Cal.App.3d 389, 393–394, 187 Cal.Rptr. 164, cert. den. 462 U.S. 1133, 103 S.Ct. 3114, 77 L.Ed.2d 1368 [mandatory student fee for health services].)

B. Freedom of Association

 Plaintiffs next contend that insofar as the ASUC, through the ASUC Senate, has taken positions on controversial issues of the day, the university has denied plaintiffs their freedom of association by forcing them to belong and give financial support to an organization that espouses views with which they disagree.   We reject the contention.

In the context of labor relations, the United States Supreme Court has held that compulsory membership in a labor union, with the concomitant requirement to pay dues, initiation fees and assessments, does not offend the federal Constitution.  (Railway Employees' Dept. v. Hanson (1961) 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112.)   The Hanson court squarely held that “the requirement for financial support of the collective-bargaining agency by all who receive the benefits of its work ․ does not violate ․ the First Amendment.”  (351 U.S. at p. 238, 76 S.Ct. at p. 721.)   In so holding, the court observed, “there is no more an infringement or impairment of First Amendment rights than there would be in the case of a lawyer who by state law is required to be a member of an integrated state bar.”  (Ibid.)

Subsequently, in Lathrop v. Donohue (1961) 367 U.S. 820, 81 S.Ct. 1826, 6 L.Ed.2d 1191, the United States Supreme Court found no constitutional infirmity in the compelled membership of an attorney in an integrated bar association.   The court emphasized that “[the attorney's] compulsory enrollment imposes only the duty to pay dues.”  (Id., at pp. 827–828, 81 S.Ct. at pp. 1829–1830.)   Quoting from the Wisconsin Supreme Court, the United States Supreme Court observed:  “The rules and by-laws of the State Bar ․ do not compel the plaintiff to associate with anyone.   He is free to attend or not attend its meetings or vote in its elections as he chooses.   The only compulsion to which he has been subjected by the integration of the bar is the payment of the annual dues of $15 per year.”  (367 U.S. at p. 828, 81 S.Ct. at p. 1830.)   Noting that the State Bar activities served to elevate “the educational and ethical standards of the Bar to the end of improving the quality of the legal service available to the people of the State,” the court concluded that “[g]iven the character of the integrated bar shown on this record, in the light of the limitation of the membership requirement to the compulsory payment of reasonable annual dues, we are unable to find any impingement upon protected rights of association.”  (367 U.S. at p. 843, 81 S.Ct. at p. 1838.)

We emphasize that we do not here decide whether membership in ASUC may be compelled.  (Cf. Good v. Associated Students of University of Washington (1975) 86 Wash.2d 94, 542 P.2d 762, 768 [membership in a student body organization may not be compelled].)   Some time before trial (apparently after the small claims actions were filed), the university took the position that membership in the ASUC is voluntary.   Previously, membership in the ASUC had been viewed as a mandatory concomitant of registration as a student;  a student registration card signified membership in the ASUC.   When this litigation began, however, the registration card was changed to add a declaration on the back of the card:  “I am a registered student of the University of California.   I voluntarily accept this ASUC membership.”   The university determined that only students who signed the back of their registration card were members of the ASUC.

Plaintiffs argue that the voluntary nature of the membership is illusory since all students are required to pay the activities fee which funds the ASUC, the university keeps no records of which students are members, and students are not required to show their ASUC “membership card” in order to participate in ASUC activities or services.  (Membership in ASUC is required only to hold ASUC office or vote in ASUC elections.)   The trial court considered such evidence, however, and found that ASUC membership is voluntary.   On the record before us, we are bound by that finding.  (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660–661, 190 Cal.Rptr. 355, 660 P.2d 813.)

Yet, although membership in the ASUC is voluntary, payment of the student activity fee is not.   Thus, the constitutional question remains whether plaintiffs can be compelled to provide financial support to an organization to which they do not care to belong.

In Abood v. Detroit Board of Education (1977) 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261, a group of public employees challenged a statutorily authorized agency shop whereby every employee represented by a union, even though not a member of the union, was compelled to pay union dues.   While acknowledging the infringement upon the plaintiffs' First Amendment rights from the mandatory dues, the court nonetheless held the infringement was justified by the “important governmental interests” in labor peace fostered by the use of a single, exclusive bargaining representative.  (431 U.S. at pp. 222, 225, 97 S.Ct. at pp. 1792, 1794.)

More recently, in Keller v. State Bar of California, supra, 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.2d 1, the Supreme Court reaffirmed its prior rulings.   The plaintiffs in Keller were members of an integrated bar association, and, although no issue was raised as to whether the plaintiffs could be compelled to join and financially support the state bar association, the Supreme Court quoted with approval from the holding of Lathrop v. Donohue, supra, 367 U.S. 820, 81 S.Ct. 1826, 6 L.Ed.2d 1191, that the freedom of association is not impinged by compulsory payment of reasonable annual dues.  (Keller, supra, 496 U.S. at pp. –––– – ––––, 110 S.Ct. at pp. 2332–2233, 110 L.Ed.2d at pp. 10–11.)   Further, the Keller court went on to say that just as employees of an agency shop must pay dues even if they choose not to join the union, so should members of the bar be compelled to pay dues.  “It is entirely appropriate that all of the lawyers who derive benefit from the unique status of being among those admitted to practice before the courts should be called upon to pay a fair share of the cost of the professional involvement in [the State Bar's effort to regulate the profession].”  (Id. at p. ––––, 110 S.Ct. at p. 2235, 110 L.Ed.2d at p. 13.)

Pursuant to the Supreme Court's rulings in Hanson, Lathrop and Abood, as affirmed in Keller, we discern two grounds for concluding that plaintiffs may be required to pay a supporting activities fee as a condition of enrollment.   First, as in Lathrop, plaintiffs here are not obliged to associate with anyone;  they are merely required to pay the activities fee.   They are free to join the ASUC or not, and if they decide to join, they are free to choose whether to attend ASUC Senate meetings and free to vote for the ASUC Senator of their choice.   Indeed, there is nothing to prevent plaintiffs from seeking Senate office and making their own voices heard in the Senate debates.

Second, like the integrated bar associations in Lathrop and Keller, the student body organization serves unique and important administrative functions.   It not only provides the mechanism for student self-government, it also administers student extracurricular activities, and it serves as a representative of the student body for purposes of interchange with the university hierarchy as well as communication with the outside world.   Furthermore, while engaging the students in self-government and administrative activities, the ASUC contributes to the educational mission of the university.   All of the students derive benefit from the work of the ASUC.

Accordingly, we conclude that all students may be compelled to help finance the ASUC operations.   The compulsory financial support of the ASUC and its funded activities does not deprive plaintiffs of their rights of association.

II. USE OF THE STUDENT FEES

A. Freedom of Speech

 Plaintiffs further argue that the use of student activities fees to fund student groups with political or ideological viewpoints with which they disagree constitutes a form of compulsory political expression which violates their rights of free speech.   We reject the argument.

In Abood v. Detroit Board of Education, supra, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261, the plaintiffs alleged that they were deprived of their First Amendment freedoms in that the union was engaged in various political and other ideological activities of which the plaintiffs did not approve.   The court agreed that First Amendment rights are infringed when persons are compelled to make contributions to support an ideological cause they oppose (431 U.S. at pp. 233–235, 97 S.Ct. at pp. 1798–1799) and held that contributions may be compelled only for activities “germane to [the union's] duties as collective bargaining representative.”  (Id., at p. 235, 97 S.Ct. at p. 1800;  see also Railway Employees' Dept. v. Hanson, supra, 351 U.S. at p. 235, 76 S.Ct. at p. 719.)   The court concluded that contributions cannot be compelled for “ideological activities unrelated to collective bargaining.”  (431 U.S. at p. 236, 97 S.Ct. at p. 1800.)

In Keller v. State Bar of California, supra, 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.2d 1, the Supreme Court reiterated the Abood test and applied it beyond the context of labor relations.   The court held that the State Bar could “constitutionally fund activities germane to [its] goals [of regulating the legal profession and improving the quality of legal services] out of the mandatory dues of all members.   It may not, however, in such manner fund activities of an ideological nature which fall outside of those areas of activity.”  (496 U.S. at p. ––––, 110 S.Ct. at p. 2236, 110 L.Ed.2d at p. 14.)   The Keller court warned that “Precisely where the line falls ․ will not always be easy to discern.”  (Id., at p. ––––, 110 S.Ct. at p. 2237, 110 L.Ed.2d at p. 15.)

Applying the Abood test here leads us to the conclusion that the activities funded by the student fees are “germane” to the university's goal of educating its students.14  In reaching that conclusion, we are guided by four early cases which uniformly held that using mandatory student fees to support certain controversial activities serves a legitimate university purpose and is constitutionally permissible.  (Good v. Associated Students of Univ. of Washington, supra, 86 Wash.2d 94, 542 P.2d 762 [student activities];  Arrington v. Taylor (M.D.N.C.1974) 380 F.Supp. 1348 [student newspaper];  Veed v. Schwartzkopf (D.Neb.1973) 353 F.Supp. 149, affd. (8th Cir.1973) 478 F.2d 1407, cert. den. 414 U.S. 1135, 94 S.Ct. 878, 38 L.Ed.2d 760 [student newspaper and student-run speakers' program];  Larson v. Board of Regents of University of Neb. (1973) 189 Neb. 688, 204 N.W.2d 568 [same].)

Although the analytical approaches taken in each of these four cases were slightly different, all four reached the same result.   All four, of course, predated Abood and Keller, but the conclusions reached in those cases remain sound.   The test under Abood and Keller is whether the mandatory fees are used for activities related to the organization's purposes.   In each of the precedent student fee cases, the court regarded the activity as educational—one which supplements classroom education by exposing the students to divergent views.   As one court put it:  “Perhaps [the newspaper's] most important function is to complement classroom education by exposing the student body to various points of view on significant issues, and to allow students to express themselves on those issues.”   (Arrington v. Taylor, supra, 380 F.Supp. at pp. 1362–1363.)

Plaintiffs rely primarily on a single case:  Galda v. Rutgers (3rd Cir.1985) 772 F.2d 1060, cert. den. 475 U.S. 1065, 106 S.Ct. 1375, 89 L.Ed.2d 602.   In that case, former students of Rutgers University successfully challenged the imposition and use of a separate student fee to support the New Jersey Public Interest Research Group (PIRG), an independent corporation engaged in research, lobbying and advocacy for social change.   However, the court took great care to distinguish the case before it from cases involving the funding of student activities by a mandatory activities fee.   The court noted that unlike the student programs upheld in Veed and Arrington, “PIRG does not provide a forum for the expression of differing views” (772 F.2d at p. 1064), but rather presents only one point of view, and the student fee supports only that group.15

The Galda case, then, is entirely consistent with the other cases upholding a mandatory student activity fee.   The Galda court observed that the creation of a forum for expression of diverse views may be a compelling justification for the slight infringement on First Amendment rights, “just as is the need for labor peace in the union dues cases.”  (772 F.2d at p. 1067.)   Clearly, the Galda court viewed the funding of various campus organizations as related to the university's educational purpose so long as all student groups are eligible to share in the student activity fund.

We, too, conclude that the funding of the various student groups is related to the university's educational purpose.   The funding of the student groups provides a forum for the exchange of ideas and the advocacy of a variety of ideological causes.   Furthermore, the funding of student groups does not enhance a single ideological point of view.   On the contrary, the philosophies of the various groups are diverse, and funding is available to any group no matter what its ideological bent.   No evidence was presented that any group had been denied funding on the basis of ideology.16  The trial court expressly found that any group of four students expressing any viewpoint was free to register with the university and become eligible for funding.

Despite our application of the Abood test, we emphasize the unique context presented here—a university setting.   We find persuasive the reasoning in Kania v. Fordham (4th Cir.1983) 702 F.2d 475, in which the Court of Appeals distinguished Abood on this basis.   In Kania, a group of students at the University of North Carolina relied upon Abood to challenge the use of mandatory student fees to fund a student newspaper which advocated views with which they disagreed.   In concluding that no constitutional violation occurred, the court emphasized two points of contrast with Abood.   First, the court noted the “special nature” of a public university:  “[T]he campus of a public university, at least for its students, possesses many of the characteristics of a public forum.  ‘The college classroom with its surrounding environs is peculiarly “the marketplace of ideas.” ’  ․ [Citation.]”  (702 F.2d at p. 479, fn. 7.)   Second, the court emphasized the evenhandedness of the communications funded by the student fees:  “In Abood ․ the Union's communications ․ were one-sided presentations of the ‘Union's viewpoint.’   The mandatory fees in Abood, therefore, enhanced the power of one, and only one, ideological group to further its political goals.   In contrast, [the student newspaper] increases the overall exchange of information, ideas, and opinions on the campus.”   (702 F.2d at pp. 479–480.)

These distinctions cannot be overlooked.   Given the nature of the university, the Kania court found it appropriate to give deference to the university's judgment:  “The University's academic judgment is that the paper is a vital part of the University's educational mission, and that financing it is germane to the University's duties as an educational institution.”  (Kania v. Fordham, supra, 702 F.2d at pp. 479–480.)   A similar approach was taken in Veed v. Schwartzkopf, supra, 353 F.Supp. 149, where the court gave recognition to the university's broad powers to define its educational task.   “Within wide limitations a state is free to adopt such educational philosophy as it chooses.   The Board of Regents of the University of Nebraska obviously has embraced an educational philosophy that the education of students extends beyond that which takes place in the classroom under the tutelage of instructors and professors.   The practices of the Board of Regents indicate that it considers as relevant to the educational process extracurricular opportunities for students to be exposed to speakers outside the classroom who may express widely divergent opinions on a number of topics.   It clearly has concluded to adopt as a part of the educational process the publication and distribution of a student newspaper.

“․

“Our states, through their colleges and universities, must retain the freedom and flexibility to put before their students a broad range of ideas in a variety of contexts.   The wisdom or political desirability of the specific route chosen is not a question to be determined by the courts.”  (Id., at pp. 152, 153.)

We employ the same analysis here.   The very nature of university education presupposes free expression of divergent views.  “When a student enrolls at a university he or she enters an academic community—a world which allows the teaching, advocacy and dissemination of an infinite range of ideas, theories and beliefs.   They may be controversial or traditional, radical or conformist.   But the university is the arena in which accepted, discounted—even repugnant—beliefs, opinions and ideas challenge each other.”  (Good v. Associated Students of Univ. of Washington, supra, 542 P.2d at pp. 768–769.)   In this tradition, the Regents have obviously decided that the educational process extends beyond the classroom and includes extracurricular opportunities for students to be exposed to widely divergent opinions on various topics.   The Regents have implicitly concluded that the use of student fees to finance student activities, including student groups that advocate positions on political and ideological matters, is necessary and related to the university's educational purposes.   The broad powers granted the university for the governance of its affairs (Part I(A), ante ) gives the Regents wide discretion to determine the best course for the university's educational mission.   We must defer to that decision.  (San Francisco Labor Council v. Regents of University of California, supra, 26 Cal.3d at p. 788, 163 Cal.Rptr. 460, 608 P.2d 277.)

Plaintiffs emphasize that through its lobbying activities the ASUC has engaged in not just educational but also “political” activities.   The Abood court, however, rejected the notion that attaching the adjective “political” to an activity is determinative.   The court recognized that by its very nature a public employees' union is involved in political activities to secure approval of public authorities and to obtain needed budgetary and appropriations decisions.  (431 U.S. at p. 236, 97 S.Ct. at 1800.)   The court declined to define the dividing line between permissible and impermissible political activities, but held that contributions may be compelled for “ideological activities” as long as they are related to the organization's purposes.  (Ibid.)  Similarly, the Keller court found no constitutional infirmity in lobbying activities per se, but only in “those activities having political or ideological coloration which are not reasonably related to the advancement of [the State Bar's] goals.”  (496 U.S. at p. ––––, 110 S.Ct. at p. 2237, 110 L.Ed.2d at p. 15;  see also Lathrop v. Donohue, supra, 367 U.S. at pp. 833–834, 843, 81 S.Ct. at pp. 1832–1833, 1838.)

The test, then, is not whether the activity is political but whether the political activity is related to the organization's purposes.   Here, the record supports the trial court's finding that lobbying activities are confined to student and university issues.   Accordingly, they are related to the university's function, and no constitutional infringement occurred.

B. Establishment of Religion

 Plaintiffs next contend that the use of the mandatory activities fee to fund certain student religious groups violates the Establishment Clause.   (U.S. Const., Amend. I;  Cal. Const., art. I, § 4;  art. XVI, § 5.)   The contention is unsupported by the record.

The trial court made a factual finding that the funded student activities groups with religious names are cultural and not “religious.”   This finding is fully sustained by the record.   Groups whose activities are essentially religious, i.e., proselytizing converts by preaching church doctrine or restricting membership to persons sharing their particular faith, are not funded.   Although some religious groups were registered groups and thus were allowed to set up tables at Sproul Plaza,17 the groups that actually received ASUC funds were cultural and not religious.

III. OTHER OBJECTIONS

Plaintiffs have claimed a variety of other alleged infirmities in the collection and expenditure of the student activities fees.   None of them has merit;  each need only be discussed briefly.

A. Express Authority

First, relying on the principle that public funds may not be used to support political causes, campaigns or activities unless the power to do so has been given “in clear and unmistakable language” (Stanson v. Mott (1976) 17 Cal.3d 206, 213–220, 130 Cal.Rptr. 697, 551 P.2d 1;  Mines v. Del Valle (1927) 201 Cal. 273, 287, 257 P. 530), plaintiffs assert that the use of student fees to fund ASUC and its activities has never been expressly authorized.   The assertion is unsound.

In 1933, the Regents adopted a policy authorizing the levy and collection of a mandatory student fee “whenever requested to do so by a two-thirds vote of the student body concerned.”   In February 1955, a student vote was taken during registration, and 68 percent of the votes cast were in favor of a compulsory student activities fee.18  The Regents thereupon approved the collection of such fee and its use for ASUC activities.

B. Fiscal Supervision

Plaintiffs contend the university has delegated too much authority to ASUC for expenditure of its funds.   Plaintiffs emphasize that when the Regents authorized the collection of compulsory student body fees in 1933, the Regents intended to retain control over the management of the ASUC funds.

The record establishes, however, that the Regents do retain fiscal control over the ASUC and its activities.   Among the constitutional powers granted the Regents in administering the university is the power “to delegate to its committees or to the faculty of the university, or to others, such authority or functions as [the Regents] may deem wise․”  (Cal. Const., art. IX, § 9, subd. (f).)  The Regents have delegated to the chancellors of the several campuses the duty of administration of student government and student activities.

Under the university's written policies, the chancellors are empowered to “make audits of the finances of student governments, exercise control over expenditures of their funds when and to the extent necessary to maintain financial solvency of student governments, and where necessary may take action to ensure that any activity under control of student governments is operated in accordance with sound business practices consonant with University policies and procedures applicable to such practices.”

Each spring, in advance of the next academic year, the ASUC budget is reviewed and approved by the Office of the Chancellor.   Each fiscal year, the ASUC is audited by an independent auditing firm, and the report is sent to the university.   Moreover, all ASUC Senate meetings are attended and monitored by university representatives.   After each meeting, written reports are sent to the chancellor's delegate, the vice-chancellor of student services.

In sum, the Regents have not abdicated their authority, but continue to retain and exercise ultimate supervisory control over student government and student extracurricular activities.

C. Check or Warrant

 Plaintiffs challenge the method of transferring funds (the student activities fees) from the university to the ASUC by check drawn upon the revolving account of UC Berkeley payable to the ASUC's separate bank account.   Relying on language contained in section 21 of the legislation of 1868 which created the university—what is referred to as the organic act—plaintiffs contend the transfer must be by warrant drawn on the treasurer of the university.19  The claim is nonsensical.

The organic act was superseded by the 1879 constitutional amendment, which expressly provided that “organization and government [of the university] shall be perpetually continued in the form and character prescribed by the organic act creating the same․”  (Cal. Const., art. IX, § 9.)   In 1918, the Constitution was amended to delete the reference to the organic act and instead to invest the Regents with “full powers of organization and government․”  There are no longer any restrictions on the manner of disbursement of university funds.   The requirement that funds be transferred by warrant has been eliminated.

D. Competitive Bidding

 Plaintiffs further argue that the disbursement by the university to the ASUC of the collected student activity fees (over $600,000 per year) violates the competitive bidding laws.   This argument, too, borders on the frivolous.

The Regents are subject to such competitive bidding procedures as made applicable by statute “for the letting of construction contracts, sales of real property, and purchasing of materials, goods, and services.”  (Cal. Const., art. IX, § 9, subd. (a).)  The Legislature has required the Regents to undertake competitive bidding for all contracts for goods and services exceeding $50,000 annually.  (Pub.Contract Code, § 10507.)   But this statute is obviously directed to contracts between the university and outside suppliers.   It does not apply to the internal administration of student government.

In any event, the ASUC is unique in that it is the one and only group that can create and operate a student government.   Accordingly, the competitive bidding law does not apply.  (Pub.Contract Code, § 10508.)

E. Support of Private Schools

 The California Constitution prohibits the use of public funds to support private schools.  “No public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools․”  (Cal. Const., art. IX, § 8.)

Plaintiffs have constructed an obscure argument that the use of the student activity fees violates this provision.   Yet, the constitutional prohibition is a limitation on the power of the Legislature to appropriate money;  it has no application to the Regents.   Furthermore, neither the ASUC nor any of its funded student activities is a “school.” 20

F. Political Neutrality of the University

 The California Constitution guarantees the political neutrality of the university.  “The University shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its regents and in the administration of its affairs․”  (Cal. Const., art. IX, § 9, subd. (f).)  Plaintiffs contend that because payment of the $12.50 activity fee is a mandatory condition for enrollment of students and because the ASUC takes positions on political questions and funds political and religious groups, the students are being subject to a “sectarian, political or partisan test” for admission in violation of the university's political neutrality.21

The contention is meritless.   As we have previously discussed, only payment of the fee is mandatory;  participation in ASUC activities is not.   Nor are the students compelled to espouse any particular political or religious viewpoint as a condition for enrollment.   Any positions taken by the ASUC or by student groups on matters of public concern are those of the student government or the student groups and not those of the university.   The student fees do not violate the university's political neutrality.

The judgment is affirmed.

FOOTNOTES

1.   For the sake of convenience, the students will be referred to as “plaintiffs” and the university and ASUC as “defendants.”

2.   In 1981–1982, for example, the total amount spent by ASUC to support student government, student activities groups and student operations was $1,016,505.   Of that, $607,635 was collected from the quarterly student activities fee;  the remainder came from other revenues.

3.   The ASUC has adopted a policy of “social responsibility” in the operation of its commercial facilities.   Thus, ASUC will not do business with companies that invest in South Africa, and it supports the boycotts of Coors beer, Nestle's Products, and Dole produce.

4.   For example, Amnesty International;  Berkeley Students for Peace;  Campus N.O.W.;   Campus Abortion Rights Action League;  Conservation and Natural Resources Study Student Organization;  East Bay Right to Life;  Gay and Lesbian Union;  Greenpeace Berkeley;  Iranian Students Association;  Progressive Students Organization;  Radical Education and Action Project;  Spartacus Youth League;  Students Against Intervention in El Salvador;  Students for Economic Democracy;  UC Berkeley Feminist Alliance and Women Organized Against Sexual Harassment;  UC Campus Sierra Club.

5.   One group, for example, the Revolutionary Communist Youth Brigade, was denied registration as a student group because of its disruptive behavior in classes.

6.   Plaintiffs contended that at least one funded student group, the Students for Economic Democracy, had endorsed certain candidates for the Berkeley City Council.   But there was testimony that while certain individual members of the group had done so, the organization itself did not.   Moreover, the group was not funded at the time.

7.   Funding would not be approved if membership was discriminatory.   The ASUC guidelines provide that the organization must be “open to all duly registered students of the University ․ and [the organization's documents] shall contain no provision limiting membership to any specific group or class or persons or otherwise discriminating against any student on the basis of race, creed, religion, ethnicity, sex or sexual persuasion.”

8.   Line/item expenses eligible for funding are personal services;  stationery and supplies;  telephone;  travel;  dues and subscriptions;  postage;  equipment rental;  advertising;  programs and printing;  facilities rental;  and other related expenses.

9.   In addition to monetary funding, the ASUC provides office space to some student groups.   Eshelman Hall is dedicated to ASUC functions, and the fifth and sixth floors contain offices which are made available for student groups.   On average, three groups share a single office.Although university guidelines prohibit the use of university facilities “for organizing and maintaining personal political activities,” university officials take the position that offices in Eshelman Hall are ASUC offices (not university offices) and thus are not governed by this prohibition.

10.   One brochure gave a telephone number to call “for assistance.”   The number was that of Congressman Dellums's office.

11.   The student body organizations for the state university system and for the state community colleges also maintain lobbies in Sacramento supported by student activities fees.

12.   The U.C. Student Lobby is directed by the Student Body Presidents Council, a board consisting of the student body presidents of each campus.   The SBPC itself has taken positions on public issues:  it supported the protestors at the Diablo Canyon nuclear power plant, the nuclear freeze initiative, a boycott of Coors beer, and South African liberation movements.   But no lobbying efforts were undertaken on these issues, and no funds were spent thereon.

13.   ASUC formerly supported the U.S. Student Association, a nationwide student organization which lobbies Congress on a variety of social issues.   ASUC withdrew its support in 1981 because the organization was viewed as extending beyond student-related issues.

14.   The Education Code defines the university's mission as providing undergraduate, graduate and professional instruction and conducting academic research.  (Former Ed.Code, § 66500, now § 66010.4, subd. (c).)We are mindful that the Keller court rejected the California Supreme Court's definition of the State Bar's purposes (“ ‘to aid in all matters pertaining to the advancement of the science of jurisprudence or to the improvement of the administration of justice’ ”), even though such are the purposes set out in the Business and Professions Code, and fashioned its own definition (“regulating the legal profession or improving the quality of ․ legal services”).  (496 U.S. at pp. –––– – ––––, 110 S.Ct. at pp. 2236–2237, 110 L.Ed.2d at pp. 14–15.)   We nevertheless state with confidence that the university's purpose is to educate.

15.   At UC, a similar organization, the California Public Interest Research Group, is funded by voluntary fees.

16.   On appeal, plaintiffs have suggested that ASUC funding is less than evenhanded because most of the funded groups have “leftist” leanings.   But plaintiffs presented no evidence at trial to support a claim of discriminatory treatment.

17.   Once the university makes its facilities available to some groups, it must make them available to all, even religious groups.   (Widmar v. Vincent (1981) 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440.)

18.   Plaintiffs argued below that the votes cast in 1955 were incorrectly counted, but the trial court found plaintiffs barred by the doctrine of laches.   That determination is sustained by the record, and no injustice is shown.  (Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 624, 166 Cal.Rptr. 826, 614 P.2d 258.)

19.   Section 21 provides in pertinent part:  “For the current expenditures of the University, specific sums of money shall be set aside ․ and shall be subject to the warrants of the President of the Board drawn upon the Treasurer of the University․”  (Gen.Law No. 8868;  Stats. 1867–1868, ch. 244, § 21, p. 257.)

20.   For the first time on appeal, plaintiffs challenge the $1.50 portion of the $12.50 mandatory fee earmarked for Ethnic Studies.   Their failure to raise this objection below forecloses review, and we decline to consider it now.  (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184–185, fn. 1, 151 Cal.Rptr. 837, 588 P.2d 1261.)

21.   Plaintiffs seem to rely primarily upon section 13 of the organic act, which provided in pertinent part:  “[N]o sectarian, political or partisan test shall ever be allowed or exercised in the appointment of Regents, or in the election of professors, teachers, or other officers of the University, or in the admission of students thereto, or for any purpose whatsoever․”  (Stats.1867–68, ch. 244, § 13, p. 254.)   As previously noted, however, although the organic act was incorporated in the 1879 version of article IX, section 9 of the Constitution, in the 1918 amendment the reference to the organic act was deleted.

DOSSEE, Associate Justice.

STRANKMAN, P.J., and NEWSOM, J., concur.

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