Amicus Curiae Brief — Board of Regents of Univ. of Wis. System v. Southworth

IN THE

Supreme Court of the United States

BOARD OF REGENTS OF THE UNIVERSITY

OF WISCONSIN SYSTEM, ef al.,

Petitioners,

V.

SCOTT HAROLD SOUTHWORTH, ef ai.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

AMICUS CURIAE BRIEF OF THE NATIONAL RIGHT

TO WORK LEGAL DEFENSE FOUNDATION, INC.,

IN SUPPORT OF RESPONDENTS

RAYMOND J. LAJEUNESSE, JR.

Counsel of Record

National Right to Work Legal

Defense Foundation, Inc.

8001 Braddock Rd., Suite 600

Springfield, VA 22160

(703) 321-8510

August 13, 1999

aH et

TABLE OF CONTENTS

Page

CARLES OF ALSIITI 6 i ee dese BS il

INTEREST OF THE AMICUS CURIAE ............... 2

SUMMARY OF THE ARGUMENT ................. 3

a ET OT Te CET OE ELLs LA or 5

I. Mandatory Student Fees, Like Compulsory Union

Agency Fees and Bar Dues, Are Not Excepted

from Normal First-Amendment Strict Scrutiny ... 5

Il. Mandatory Fees Must Satisfy All Three Prongs of

the Lehnert Test for the Chargeability of Activi-

GG vacviveadacenet viaccess 13

III. Because Collecting Compulsory Fees Compels

Association and Takes Individuals’ Property,

Advance Reduction to Exclude Undeniably

Nonchargeable Amounts Is Required by the First

Amendment and Due Process ............... 19

COCR NINE ic ie an er ae, 29

y

TABLE OF AUTHORITIES

Cases Page

Abood vy. Detroit Board of Education, 431 U.S.

rl ts EC Re TEE Te ee Tee eee passim

Air Line Pilots Ass'n v. Miller, 118 S. Ct. 1761 (1998)... 14

Andrews v. Cheshire Educ. Ass'n, 829 F.2d 335

COG: GHD Pesca ep sekc cee ahss. 644 03 0aeeed 22

Bell v. Burson, 402 U.S. 535 (1971) ........... 0c eee 28

Board of Regents of Univ. of Wis. Sys. v. Southworth,

SIDS. GE: TRCN OOOe oa cdbcecdecdsbiseteneede' 13

Board of Trustees v. Fox, 492 U.S. 469 (1989) ......... 25

Brock v. Roadway Express, Inc., 481 U.S, 252 (1987) ... 25

Buckley v. Valeo, 424 U.S. 1 (1976) ......... 8, 12, 24-25

Central Hudson Gas & Elec. Corp. v. Public Serv.

Comme te, O67 UB. SET ATOR oc cccccwecvccvevccae 7

Citizens Against Rent Control vy. City of Berkeley,

Rs SED ac hte Eo 6 od 5 60065 vine ens nee en 6

Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632

SEE ok idan his Sax ba eeedkeweee ke hebneesee 28

Connecticut v. Doehr, 501 U.S. 1 (1991) «2... eee eee 25

Crawford v. Air Line Pilots Ass'n, 870 F.2d 155

(1989), adopted en banc, 992 F.2d 1295

6 RE Tet Por ee eer Let Tae 22

Damiano vy. Matish, 830 F.2d 1363 (6th Cir. 1987)... 23-26

***

TABLE OF AUTHORITIES (CONT.)

Page

Dashiell v. Montgomery County, 925 F.2d 750

RE TREE RSA Ee

Dean v. TWA, 924 F.2d 805 (9th Cir. 1991) ........... 21

Eu v. San Francisco County Democratic Cent

a 7

Ellis v. Railway Clerks, 466 U.S. 435 (1984) ...... passim

Elrod v. Burns, 427 U.S. 347 (1976) ......... 8, 10, 24-25

Finerty v. NLRB, 113 F.3d 1288 (D.C. Cir.),

cert. denied, 118 S. Ct. 558 (1997)... eee, 23

Gibson v. Florida Bar, 906 F.2d 624 (1 1th Cir.

1990), cert. dismissed, 502 U.S. 104(1991).......... 21

Glickman v. Wileman Bros. & Elliott, Inc.,

i io ee ewan ob eden reed passim

Grunwald v. San Bernardino City Unified

Sch. Dist., 994 F.2d 1370 (9th Cir. 1993) .... 2.2.0... 21

Hohe v. Casey, 868 F.2d 69 (3d Cir. 1989) ............ 22

Hohe v. Casey, 695 F. Supp. 814 (M.D. Pa. 1988),

aff ‘d, 868 F.2d 69 (3d Cir. 1989) ..............05.. 23

Hudson v. Teachers Local 1, 743 F.2d 1187

(7th Cir. 1984), aff'd, 475 U.S. 292 (1986) .......... 19

In re Chapman, 509 A.2d 753 (N.H. 1986) ............ 23

Keller v. State Bar, 496 U.S. 1 (1990) ............ passim

-1V-

TABLE OF AUTHORITIES (CONT.)

Page

Keller v. State Bar. 767 P.2d 1020 (Cal. 1989) ......... 28

Lathrop v. Donohue, 367 U.S. 820 (1961)... 2.6.06... 23

Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507

GIGGED ovicccscdswids ovtccdepsnéeuy Waceeees passim

Madsen vy Women’s Health Ctr, Inc., 512 US.

PRED ons dw vk vp webisas¥ bhketed sam rteases 27

NAACP v. Button, 371 U.S. 414 (1963)... 2... 0 oo ee ee 26

Railway Clerks v. Allen, 373 U.S. 113 (1963) ... . 20, 26, 28

Riley v. National Fed'n of the Blind,

Gay Us Ge GED nce teed datawed 60ssete4 7-8, 12

Roberts v. United States Jaycees, 408 U.S. 609

CFG vc cactuccnéus peuewnkts dbapeob Gusoueus 6-7, 10

Rosenberger v. Rector & Visitors of Univ. of Va.,

SAS US. GOOCHSOGE 66 ve ta bi ve desb edd cvetssees 12

Schneider v. Colegio de Abogados,

O4T F.2O GRD CRI GU, FE oc ct cecvccevaccess 18, 22

Southworth v. Grebe, 151 F.3d 717 (7th Cir.

1998), cert. granted sub nom. Board of Regents

v. Southworth, 119 §. Ct. 1332 (1999) . 2.2.6... passim

Southworth v. Grebe, 153 F.3d 1124 (7th Cir.

OU IED . 3 cies oa cod savinieakes 15

Teachers Local | v. Hudson, 475 U.S. 292 (1986) .. passim

-V-

TABLE OF AUTHORITIES (CONT.)

Page

Tierney v. City of Toledo, 824 F.2d 1497

SEL CUNT ih ckwenbccaudands todaederctenk 23

Ward v. Rock Against Racism, 491 U.S. 781 (1989) ..... 26

Wooley v. Maynard, 430 U.S. 705 (1977) ........... 6, 11

Constitutional, Statutory and Rules Provisions

Gas IL. Evo bow Acunoec dunes oetance passim

POT CTO Sid enthe Peed saaccboardanehace l

Ss SE ask o'ndud buh Oadaee cbateareteacens l

Other Authorities

Webster's New Twentieth Century Dictionary

RR ee ee ree 9

Black's Law Dictionary (rev. 4th ed. 1968)... .......... 9

IN THE

Supreme Court of the United States

No. 98-1189

BOARD OF REGENTS OF THE UNIVERSITY

OF WISCONSIN SYSTEM, ef ail.,

Petitioner,

v,

SCOTT HAROLD SOUTHWORTH, ef ai.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

AMICUS CURIAE BRIEF OF THE NATIONAL RIGHT

TO WORK LEGAL DEFENSE FOUNDATION, INC.,

IN SUPPORT OF RESPONDENTS

The National Right to Work Legal Defense Foundation,

Inc. (“Foundation”), files this brief amicus curiae with the

written consent of all parties. Sup. Ct. R. 37.3(a).' It supports

Respondents’ position that this Court should affirm the decision

of the United States Court of Appeals for the Seventh Circuit.

' We have lodged letters of consent with the Clerk of the Court as

required by Rule 37.3(a). Pursuant to Rule 37.6, the Foundation’s counsel!

certifies that no counsel for a party authored this brief in whole or in part,

and that no person or entity, other than the amicus curiae, made a monetary

contribution to the preparation or submission of the brief.

INTEREST OF THE AMICUS CURIAE

The Foundation is a nonprofit, charitable, legal aid

organization. Its purpose is to protect the right to work, free-

doms of association and speech, and other fundamental liberties

of ordinary working men and women from infringement by

compulsory unionism. It is the only such organization operating

on a national basis.

The Foundation has supported several major constitutional

cases involving employees’ rights to refrain from paying

compulsory dues and fees to labor organizations for political

activity, lobbying, litigation, and other forms of union ideologi-

cal advocacy and activism. These cases, in which Foundation

attorneys represented the plaintiff employees, include Abood v.

Detroit Board of Education, 431 U.S, 209 (1977), Ellis v.

Railway Clerks, 466 U.S. 435 (1984), Teachers Local | v.

Hudson, 475 U.S. 292 (1986), and Lehnert v. Ferris Faculty

Ass'n, 500 U.S. 507 (1991). Foundation attorneys also have

represented employees in many cases in lower courts that have

involved application of the principles enunciated by this Court

in 4bood and later decisions.

The court of appeals relied on this Court's union-dues

precedents in its decision in this case. See Southworth v. Grebe,

151 F.3d 717 (7th Cir. 1998), cert. granted sub nom. Board of

Regents of Univ. of Wis. Sys. v. Southworth, 119 S, Ct. 1332

(1999). Therefore, the Foundation is concerned with this case,

because reversal of the court of appeals’ decision could

seriously undermine the constitutional rights of nonunion

employees, recognized in Abood and its progeny, not to

subsidize union political and ideological activity. The Founda-

tion also believes that its attorneys’ exten..ve experience in

litigating union compulsory-dues cases will give the Court a

unique and helpful perspective on the important issues this case

involves.

wie

SUMMARY OF THE ARGUMENT

Part I.

This Court's holdings in its decisions concerning the

constitutionality of compulsofy union agency fees and manda-

tory state bar dues control here, because these cases all involve

coerced financial support of private or quasi-private organiza-

tions that engage in political and ideological advocacy. These

cases all thus involve infringements upon the rights not to speak

and not to associate for political and ideological purposes.

These rights are at the core of the First Amendment and

protected as fully as ihe rights to speak and to associate.

Therefore, to pass constitutional muster, the schemes in these

cases must meet traditional First-Amendment strict scrutiny,

which requires the government to show that its regulations

narrowly serve compelling governmental interests.

Although the Court has not explicitly so stated, it has in

fact applied strict scrutiny in its union agency-fee and compul-

sory bar-dues cases. In those cases, the Court has not deferred

to state claims of ambiguous state interests. Rather, it has

required the state to show that a discrete, vital state interest

justifies coerced financial support of the unions and bar

associations. The Court also has narrowly limited constitution-

ally chargeable activities, protected by the First Amendment, to

those that directly serve the governmental interest that justifies

the compulsory fee. And, it has required that the procedures for

determining chargeable costs be carefully tailored to minimize

the infringement on First-Amendment rights.

Part II.

In Lehnert v. Ferris Faculty Ass'n the Court established a

strict, three-part test for determining whether the costs of

activities may constitutionally be included in mandatory fees:

to be chargeable an activity must be (1) “*germane’ to” the

governmental purpose for which compelled association is

justified; (2) justified by a “vital” governmental interest; and,

+ o

(3) “not significantly add to” any burden on First-Amendment

rights inherent in coerced support of the gov ernmental purpose

justifying the fee. 500 U.S. at 519. The court of appeals

correctly required that all three parts of this test be met here,

because Lehnert stated it in the conjunctive, not the disjunctive.

Moreover, as the various opinions in Le/nert all show, the

Court there required that all three parts of the test be satisfied.

The Court's later decision in Glickman v. Wileman Bros. &

Elliott. Inc.. 821 U.S. 457 (1997), is not to the contrary. Glick-

man is distinguishable from these cases, because it did not

involve coerced financial support of amy political or ideological

advocacy. Moreover, Glickman implicitly addressed all three

prongs of the Lehnert test. It necessarily did so, because

permitting coerced financial support of speech and association

that meets only one part of that test does not satisfy due process,

much less strict scrutiny.

Part Il.

The court of appeals correctly rejected an escrow-and-

refund remedy, and required instead an advance reduction of

objecting students’ fees to that amount that can, based on

experience, be expected to be distributed to organizations

engaged only in constitutionally chargeable activities. Such a

reduction is required by this Court's decision in Teachers Local

/ v. Hudson. Ivis necessary, because state coerced collection of

compulsory fees for a private organization inherently infringes

on First-Amendment freedom of association, and because even

temporary collection of amounts to which such an organization

has no valid claim unjustifiably deprives an individual of his or

her own property. Any burden that calculating an advance

reduction, based on spending in a prior year, might impose on

the party collecting the fees, or organizations that want to use

them, does not justify the infringement on individual constitu-

tional and property rights that occurs absent such a reduction.

ete

ARGUMENT

1. Mandatory Student Fees, Like Compulsory Union

Agency Fees and Bar Dues, Are Not Excepted from

Normal First-Amendment Strict Scrutiny.

_ Petitioners, the members of the Board of Regents of the

University of Wisconsin System (collectively, “the Board”), and

most of its amici curiae, argue that this case is not controlled by

this Court's holdings concerning the constitutionality of

compulsory union agency fees and mandatory state bar dues

because those decisions did not involve a “limited public

forum. (E.g., Pet’rs’ Br. at 29-30.) However, as the Board’s

amicus curiae American Federation of Labor-Congress of

Industrial Organizations (“AFL-CIO”) cogently explains, this

Court's agency-fee and bar-dues cases do control here, because:

There is no dispositive legal difference between

mandatory fees that finance a forum for expressive

activities and mandatory fees that otherwise further

expressive activities. In both cases, the connection

between the fee payer and the expressive activities is

purely financial, rather than personal. In both cases,

even the financial connection between the fee payers

and the expressive activities may be more or less

remote depending upon the number of organizational

levels the fee passes through before being ultimately

used for expressive activity. And, in both cases, the

content of the expressive activity is not determined by

the government.

(AFL-CIO Br. at 3.)°

‘The directness of the connection between the fee payer and the

expressive activities was irrelevant in the agency-fee cases. See Lehnert, 500

U.S. at 516 (“To force employees to contribute, albeit indirectly, to the

promotion of [social, political, and ideological] positions implicates core

(continued...)

Where the AFL-C1O’s argument, and the Board's alterna-

tive argument analyzing this case under the Court's agency-fee

and bar-dues decisions. err is that they fail to acknowledge that

these cases all require application of traditional First-Amend-

ment strict scrutiny.

Governmental requirements that individuals, as a condition

of public benefits, pay private and quasi-private organizations

tees used for political and ideological purposes infringe on the

First-Amendment freedoms of speech and association. See

Lehnert, 500 U.S. at 516-17 (union agency fees); Keller v. State

Bar, 496 U.S. 1, 9-10, 13-14 (1990) (mandatory bar dues),

Hudson, 475 U.S. at 301-02 & n.9 (agency fees); Abood v

Detroit Bd. of Educ., 431 U.S. 209, 233-36 (1977) (agency

fees). This is so, because the “‘right of freedom of thought

protected by the First Amendment against state action includes

both the right to speak freely and the right to refrain from

speaking at all,’ Lehnert, 500 U.S. at 516-17 (quoting Wooley

v Maynard, 430 U.S. 705, 714 (1977)); and because “* freedom

of association . . . plainly presupposes a freedom not to associ-

ate.” Hudson, 475 U.S. at 302 n.9 (quoting Roberts v. United

States Jaycees, 468 U.S. 609, 623 (1984)).

Consequently, just as in the union and bar cases, strict

scrutiny is necessary in determining whether, and to what

extent, the Constitution permits the requirements involved here.

Where political and ideological speech and association are

concerned, “regulation of First Amendment rights is always

subject to exacting judicial review.” Citizens Against Rent

Control v. City of Berkeley, 454 U.S. 290, 294 (1981) (empha-

* (continued)

First Amendment concerns”) (emphasis added); Hudson, 475 U.S. at 307

n.18 (“With respect to an item such as the [local] Union's payment of

$2,167,000 to its affiliated state and national labor organizations, . . . either

a showing that none of it was used to subsidize activities for which

nonmembers may not be charged, or an explanation of the share that was so-

used was surely required”).

a FP

sis added). To justify such regulations, the government must

prove that they “*serve compelling state interests, unrelated to

the suppression [or coercion] of ideas, that cannot be achieved

through means significantly less restrictive of associational [and

expressive] freedoms.’” Hudson, 475 U.S. at 303 n.11 (quoting

Roberts, 468 U.S. at 623); see Eu v. San Francisco County

Democratic Cent. Comm., 489 U.S. 214, 222 (1989).

The Board and its amici ignore this traditional First-

Amendment standard. They argue that the Court should defer

to the Board's “academic judgment . . . that the provision of

services to a diverse student body and the creation of a limited

public forum for the expression of the full range of ideas of

interest to students is . . . central to the University’s educational

mission.” (Pet'rs’ Br. at 43; see, e.g, Am. Council on Educ. Br.

at 16-17.) Strict scrutiny does not permit such deference.

Admittedly, the Court has not stated in those precise words

that “strict scrutiny” applies in its union agency-fee and

compulsory bar-dues cases. However, the Court does not

always formally announce that it is applying strict scrutiny

when it does so. On the other hand, the Court does usually

except a class of regulation from First-Amendment strict

scrutiny only explicitly, as it did with commercial speech in

Central Hudson Gas & Electric Corp. v. Public Service

Commission, 447 U.S.557, 561-63 (1980). The Court has not

only not explicitly excepted the compulsory fee cases from

strict scrutiny, but also has implicitly applied strict scrutiny in

these cases, as four members of the Court pointed out in

Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 482-

83 (1997) (Souter, J., dissenting).’

‘ Although the Court's opinion in Lehnert only implicitly applied

strict scrutiny, Justice Scalia, joined by three other Justices, explicitly

applied it in his opinion concurring in the judgment in part and dissenting

in part. See Lehnert, 500 U.S. at 556-57 (opinion of Scalia, J.).

-§-

lhe Court recoynized as much in Riley v National

Federation of the Blind, 487 U.S. 781 (1988). Riley held that

state action compelling speech is “content-based regulation”

and “subject to exacting First Amendment scrutiny,” unless the

speech is purely commercial, because “[m andating speech that

a speaker would not otherwise make necessarily alters the

content of the speech.” /d. at 795-98. The Court there cited

Abood for the proposition that the First Amendment equally

fully protects “compelled speech and compelled silence.” /d at

796-97.

When Ahood addressed what union activities nonunion

public employees may constitutionally be compelled to subsi-

dize as a condition of employment, it gave mo deference to the

Michigan legislature's judgment that it served a valid state

interest for public-sector exclusive bargaining agents to exact

agency fees “for legislative lobbying and in support of political

candidates.” 431 U.S. at 215. The Court recognized that there

may be a connection between those activities and public-sector

collective bargaining. See id. at 228. However, it nonetheless

rejected that connection as a basis for coercing speech and

association, relying on strict-scrutiny cases such as Elrod v

Burns, 427 U.S. 347 (1976) (plurality opinion) and Buckley v.

Valeo, 424 US. 1 (1976). See Abood, 431 U.S, at 232-36."

Abood held that the First Amendment prohibits a union's

expenditure of dissenting nonmembers’ agency fees “for the

expression of political views, on behalf of political candidates,

or toward the advancement of other ideological causes not

germane to its duties as collective-bargaining representative.”

See also Lehnert, 500 U.S. at 517 (Abood “established that the

constitutional principles that prevent a State from conditioning public

employment upon association with a political party, see Elrod, .. . similarly

prohibit a public employer ‘from requiring {an employee] to contribute to

the support of an ideological cause he may oppose as a condition of holding

a job’ as a public educator”) (quoting Abood, 431 U.S. at 235) (citation

omitted).

»

431 U.S. at 235-36, Thus, as the Court later put it in Lehnert,

chargeable activities must (1) be ‘germane’ to the collective-

bargaining activity” of the union “and (3) not significantly add

to the burdening of free speech that is inherent in the allowance

of an agency or union shop.” 500 U.S. at 519.

Lehnert's second criterion for chargeability is that “charge-

able activities must... be justified by the government's vital

policy interest in labor peace and avoiding ‘free riders.’” 500

US. at 519 (emphasis added). The adjective “vital” shows that

the Court was applying strict scrutiny, because “vital” means

“essential to the existence or continuance of something;

indispensable, .. . Of greatest importance.” Webster's New

Twentieth Century Dictionary 2044 (2d ed. unabr. 1978).

C ontrary to amicus curiae United States Student

Association's assertion that “the term ‘germane’ cannot be

given a cramped reading,” (U.S. Student Ass'n Br. at 14), that

term implies strict scrutiny. “Germane” means “closely re-

lated.” Webster's New Twentieth Century Dictionary 767 (2d

ed. unabr. 1978); accord Black's Law Dictionary 816 (rev. 4th

ed. 1968). Thus, the only activities fully protected by the First

Amendment that may constitutionally be charged to objecting

fee payers are those that relate directly to the governmental

interest that justifies the compulsory fee, ie., collective

bargaining in the union case, and education here.

; For example, the only “flexibility in its use of compelled

funds ‘for activities “involv[ing] the expression of ideas” that

the union was permitted in Ellis v. Railway Clerks was when

those activities were “essential to the union's discharge of its

duties as bargaining agent.” Compare 466 U.S. 435, 448-51

(1984) with id. at 456-57 (conventions and nonpolitical

publications). However, when expressive activities, such as

organizing, had only an “attenuated connection with collective

bargaining,” Ellis held them nonchargeable even though they

rene ‘9 union “more successful at the bargaining table.” /d. at

- 10-

This narrow reading of the germaneness test is reinforced

by its application in LeAnert. Justice Blackmun, joined by three

other Justices, determined that where “challenged lobbying

activities relate not to the ratification or implementation of a

dissenter’s collective-bargaining agreement. but to financial

support of the employee's profession or of public employees

generally, the connection to the union’s function as bargaining

representative is too attenuated to jusufy compelled support by

objecting employees.” 500 U.S. at 520 (opinion of Blackmun,

J.). Justice Scalia, joined by an additional three Justices, agreed:

“the challenged lobbying expenses are nonchargeable, be-

cause, “though they may certainly affect the outcome ot

negotiations, [they] are no part of th[e] collective-bargaining

process.” /d. at 559 (opinion of Scalia, J.). Only Justice

Marshall disagreed, criticizing the “principal opinion” tor

“creating a very narrow rule for testing the constitutional

acceptability of charges for lobbying activity. Id. at 535

(Marshall, J.. dissenting in part) (emphasis added).

Unlike Abood and Lehnert, Hudson concerned procedures

for collecting agency fees. It did not address “the line between

union expenditures that all employees must help defray and

those that are not sufficiently related to collective bargaining to

justify their being imposed on dissenters.’” Hudson, 475 U.S.

at 294, 304 n.13 (quoting Ellis, 466 U.S. at 447). Nonetheless,

Hudson also demonstrates that normal First-Amendment strict

scrutiny is necessary in determining what activities objecting

fee pay ers may constitutionally be required to subsidize.

In Hudson, the Court quoted Roberts, 468 U.S. at 623

(which cited Abood), Elrod, 427 U.S. at 363, and earlier

statements of the strict-scrutiny test for the conclusion that,

although the government interest in labor peace is

strong enough to support an “agency shop * notwith-

standing its limited infringement on nonunion employ-

ees’ constitutional rights, the fact that those rights are

protected by the First Amendment requires that the

procedure [for determining chargeable costs] be

carefully tailored to minimize the intringement.

475 U.S. at 302-03 & n.11 (emphasis added) (footnote omitted).

Far greater reason exists to tailor carefully and apply narrowly

the legal standard for determining chargeable costs, because the

legal standard is even more important to that determination than

the procedure by which the standard is applied.

The Court also implicitly applied strict scrutiny in Keller

v. State Bar, 496 U.S. | (1990). Keller described constitution-

ally chargeable activities as those “germane to,” or in which a

state bar is “acting essentially as professional advisers to those

ultimately charged with,” “the State’s interest in regulating the

legal profession and improving the quality of legal services.” /d

at 13-15. Thus, like the Court's agency-fee decisions, Keller

requires that chargeable activities bear a direct relationship with

the governmental interest supporting the compulsory fee.

Moreover, Keller confirmed that the governmental interest that

chargeable expenses must directly advance is not what a state

or a state agency broadly asserts it to be, as the Board argues

here. It is only the narrow, vital interest that this Court identi-

fies as sufficient to justify a compulsory fee. See id.

Several of the Board's amici contend that 4hbood and its

progeny are distinguishable, because those cases involved

compelled support of particular viewpoints, while the manda-

tory fees here support multiple viewpoints. (See, e.g, Brennan

Cent. for Justice’s Br. at 19-21.) That is an immaterial distine-

tion. The right to refrain from speaking is a “right to refrain

from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714

(1977) (emphasis added); accord Lehnert, 500 U.S. at 516-17.

In 4bood, the Court held that objecting nonmembers need not

specify which union political and ideological expenditures they

Oppose; nonmembers adequately state a First-Amendment claim

if they allege generally that they oppose “ideological expendi-

tures of amy sort that are unrelated to collective bargaining.”

431 U.S. at 239-42 (emphasis added). Thus, for example, a

union cannot constitutionally use objecting nonmembers’

xo

agency fees for “soft money” contributions to both the Republi-

can and Democratic parties, or for portions of a union publica-

- . . . “ s

tion airing both sides of a legislative issue.

Amicus AFL-CIO suggests that strict scrutiny ts unneces-

sary here because the “First Amendment interest in withholding

otherwise valid financial exactions on the basis ot conscientious

objection to the evemeal use of the money” 1s “relatively

weak.” (AFL-CIO Be. at 18.) Amicus Lesbian, Gay, Bisexual

and Transgender Campus Center similarly argues that only a

“balancing inquiry” is necessary, because “at most First

Amendment interests’ are implicated here, not any wholesale

assault on a fundamental right.” (Lesbian, ec. Br. at a8 & 4

(quoting Glickman v. Wileman Bros. & Elliott, Inc., 521 US.

457, 472 (1997)).) These arguments are wholly without merit.

Limitations “upon the freedom to contribute [to political

causes} ‘implicate fundamental First Amendment interests.

Abood. 431 U.S. at 234 (quoting Buckley, 424 U.S. at 23)

(emphasis added). That individuals “are compelled to make,

rather than prohibited from making. contributions for political

purposes works no less an infringement of their constitutional

rights.” /d.; see also Riley, 487 U.S. at 796-97 (“in the context

of protected speech, the difference [between compelled speech

* The Court's approval of “public financing of election campaigns”

in Buckley v. Valeo, 424 U.S. 1, 91-93 (1976), is not to the contrary. The

Court there explicitly pointed out that the public financing “scheme involves

no compulsion upon individuals to finance the dissemination of ideas with

which they disagree,” as in the agency-fee and bar-dues cases. /d. at 91

n.124. That scheme involves only “appropriation by Congress” of “public

money.” /d. at 91-92. The court of appeals correctly found that the

mandatory student fees here are not public funds. Southworth, 151 F.3d at

732; see Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819,

840-41 (1995); id. at 85 1-52(O" Connor, J., concurring); of Keller, 496 U.S.

at | |-13 (the California State Bar is not a government agency for purposes

ot the First-Amendment rule against forced contributions to political and

ideological causes).

and compelled silence] is without constitutional significance”).

Consequently, to force individuals “to contribute, albeit

indirectly, to the promotion of [social, political, and ideologi-

cal] positions implicates core First Amendment concerns.”

Lehnert, 500 U.S. at 516 (emphasis added).

Glickman did not overrule this proposition. It confirmed it.

Glickman accepted Abood’s premise “that compelled contribu-

tions for political purposes unrelated to collective bargaining

implicated First Amendment interests because they interfere

with values lying at the ‘heart of the First Amendment.” 52 |

U.S. at 472 (quoting Abood, 431 U.S. at 234) (emphasis added).

Glickman simply distinguished 400d and related cases because

the assessments in Glickman were “not used to fund ideological

activities.” but only purely commercial product advertising. /d

at 469-70, 473-74.

The question presented here, as defined by this Court, is

“[w]hether the First Amendment is offended by a policy or

program under which public university students must pay

mandatory fees that are being used in part to support organiza-

tions that engage in political speech.” Board of Regents of Univ

of Wis. Sys. v. Southworth, 119 §. Ct. 1332, 1332-33 (1999)

(granting certiorari) (emphasis added). Therefore, 4bood and its

progeny are not distinguishable. The Board must satisfy strict

scrutiny to justify collection of the portion of these mandatory

fees that subsidizes political and ideological speech.

Il. Mandatory Fees Must Satisfy All Three Prongs of the

Lehnert Test for the Chargeability of Activities.

Lehnert established a three-part test for the chargeability of

union activities in an agency fee: “chargeable activities must

(1) be ‘germane’ to collective-bargaining activity; (2) be

justified by the government's vital policy interest in labor peace

and avoiding ‘free riders’; and (3) not significantly add to the

burdening of free speech that is inherent in the allowance of an

agency or union shop.” 500 U.S. at 519 (emphasis added). As

ihe

we have seen in Part | of this brief, this test is a particular

application of strict scrutiny.

For mandatory fees generally, this test is (1) whether an

activity in question is ““germane’ to the [governmental |

purpose tor which compelled association {i]s justified”.

(2) whether a “vital” governmental interest justifies coerced

financial support of the activity, and (3) whether coerced

financial support of that activity adds significantly to any

burden on First-Amendment rights inherent in coerced support

of the governmental purpose justifying the fee. See Keller, 496

US. at 13-14.

Because the Lehnert test uses the conjunctive, “and,” not

the disjunctive, “or,” all three parts of the test must be satistied

for an activity to be constitutionally chargeable to an objecting

compulsory fee payer. So concluded the court of appeals here:

As Lehnert made clear, “germaneness” is not the be-

all/end-all question in the constitutional analysis, but

rather is only the first prong: Under Lehnert, not only

must the mandatory fee be germane to some otherwise

legitimate economic or regulatory scheme, the com-

pelled funding must also be justified by vital interests

of the government, and not add significantly to the

burdening of free speech inherent in achieving those

interests.

Southworth. 151 F.3d at 727; accord Glickman, 521 U.S. at 485

(Souter, J., dissenting).

Amicus AFL-CIO argues that Glickman, not Lehnert.

“provides the most authoritative statement of the applicable

principles,” for two reasons. First, the AFL-CIO says, “Glick-

man is both later and more c ive.” (AFL-CIO Br. at

10-11 n.7.) That claim is ee ee

the Court repeated the Lehnert test in Air Line ; v

Miller, 118 S. Ct. 1761, 1766 (1998). Moreover, Glickman is

distinguishable from this case, and from Lehnert, in a critical

.

respect. Glickman involved no question of coerced financial

support of “any political or ideological views.” Glickman, 52|

U.S. at 469-70, 473 (emphasis added).

The AFL-CIO also contends that Glickman is more

authoritative than Lehnert because Justice Marshall: (a) joined

in the portion of the Lehnert opinion stating the three-part test

“only to the extent that it is consistent with Justice Marshall's

own analysis” of the chargeability of lobbying expenditures:

and, (b) described “the Lehnert plurality’s three-part standard

in the negative rather than the affirmative. indicating an

understanding that all three mentioned conditions need nor

obtain before lobbying expenditures are chargeable.” (AFL-CIO

Br. at 10-11 n.7.) Both contentions misread Lehnert.

The AFL-CIO’s first inference from Justice Marshall's

opinion echoes Judge Rovner’s assertion, in dissenting from the

Seventh Circuit's denial of rehearing en banc here, that the

portion of Justice Blackmun’s Lehnert opinion dealing with

lobbying activities “received the support of only four justices,

and thus is not controlling.” Southworth v. Grebe, 157 F.3d

1124, 1127 (7th Cir. 1998) (Rovner, J., dissenting). The AFL-

CIO's and Judge Rovner's error is that they ignore Justice

Scalia’s opinion in Lehnert, concurring in the judgment in part

and dissenting in part, joined by three Justices other than those

who joined in Justice Blackmun’s opinion.

In discussing the Lehnert three-part test, Justice Scalia

contested only its vagueness and Justice Blackmun’s “overly

broad concept of ‘germaneness’™ in applying that test. See 500

U.S. at 550-51, 557-58 (opinion of Scalia, J.). Justice Scalia did

not contest Justice Blackmun’s conclusion that lobbying

expenditures “outside the limited context of contract ratification

or implementation” are nonchargeable, because they fail all

three parts of the test, id. at 519-22 (opinion of Blackmun, J.).

To the contrary, Justice Scalia explicitly “agree/d/ that the

challenged lobbying expenses are nonchargeable.” because they

“are no part of th{e) collective-bargaining process.” /d. at 559

- 16-

(opinion of Scalia, J.) (emphasis added). Because Justice Scalia

also explicitly applied strict “First Amendment scrutiny,” see

id. at 556-57, he thus implicitly recognized that lobbying

“outside the limited context of contract ratification or implemen-

tation” impermissibly adds significantly to the agency shop's

burden on nonunion employees’ First-Amendment rights. In

short. Justice Blackmun’s opinion concerning lobbying repre-

sented the views of the Court's majority and controls here.

The AFL-CIO’s second inference from Justice Marshall's

opinion—that all three prongs of the Lehnert test “need not

obtain before lobbying expenditures are chargeable” —1s

directly refuted by Justice Marshall's opinion itself. Justice

Marshall explicitly explained that,

As the [principal] opinion observes, even if a given

cost is found to be ‘germane’ toa union's collective-

bargaining duties and to further the two governmen-

tal interests that inform the scope of germaneness,

the cost may still be nonchargeable if it involves

“additional infringement of First Amendment rights

beyond that already accepted [in the union shop

arrangement}, and . . . that is not justified by the

governmental interests behind the union shop itself.”

Id. at 539-40 (opinion of Marshall, J.) (quoting Ellis v. Railway

Clerks. 466 U.S. 435, 456 (1984)) (emphasis added) (other

alterations in original).

The opinions of the Court and Justice Scalia in Lehnert

also refute the AFL-CIO’s contention that all three parts of the

Lehnert test need not be met for an activity to be chargeable.

Part IV-F of Justice Blackmun’s opinion is the opinion of the

Court. because not only Justice Marshall joined it, but also

Justice Kennedy. /d. at 534 (Marshall, J., concurring in part),

562-63 (Kennedy, J., concurring in the judgment in part). In that

part, the Court concluded that expenses incurred preparing for

an illegal strike that did not occur met the first two prongs of

the test. Nonetheless, the Court found it necessary also to

~

<aoy o yo such expenses “impose no additional burden

= Pi repose: rights.” /d. at 531-32. And. Justice

rg toes ente ihat apparently all expenditures that pass”

eategarwtal et emenegeg test “must also meet” the “two

sts the Court added. /d. at 557 (opinion of Scalia, J.).

__ Thus, all of the Lehnert opinions show that al

“ a Lehnert test must be met for an activity to sab ane ng

. - ; ickman, Justice Souter, dissenting, objected that the Court

re “appears to hold that a compelled subsidy of speech does

not implicate the First Amendment if the speech either is

re to an otherwise permissible regulatory scheme or is

non-ideological, so that each of these characteristics constitutes

o ee sufficient criterion for upholding the subsidy.”

vs. at 483 n.3 ( Souter, J., dissenting) (emphasis added)

owever, we respectfully submit that the Court did not so h Id.

and could not correctly have so held, in Glickman is

_Such a holding was not necessary to the Court’ iSi

a 9 a because the commercial speech at ay ee

pare: Pe, - wearer germane to” the governmental interest

served by the regulatory scheme and nonideological. /d. at 473

(opinion of the Court). Moreover, in making both of those

pee serge rather than just one or the other, Glickman in

“y implicitly addressed all three prongs of the Lehnert test. See

id. at 471-73. It did so necessarily because, as we have just

shown, the entire Court .

Sandell deanna Senet Im Lehnert that, on Justice

even if a given cost is found to be “germane”

union's collective-bargaining duties ai. to cater oe

two governmental interests that inform the scope of

germaneness, the cost may still be nonchargeable if it

involves “additional infringement of First Amendment

rights beyond that already accepted [in the union shop

arrangement}, and .. . that is not justified by the

governmental interests behind the union shop itself.”

—-.

500 U.S. at 539-40 (opinion of Marshall, J.) (quoting Ellis, 466

U.S. at 456) (alterations in original).

The obverse also must be necessary for coerced financial

support of speech or association to be constitutional. That is,

even if a private organization's activity is not political or

ideological, coerced support of it is not constitutionally

permissible unless it is germane to a governmental interest

served by the regulatory scheme involved. The necessary

degrees of “germaneness™ and strength of the governmental

interest might be lesser in such a case, as Glickman ruled. Even

so. the activity must bear some relationship to a legitimate

governmental interest. or the coercion Is not rational, much less

justified by a compelling governmental interest.

Thus, for example, in upholding the chargeability of

“{j]nformational support services” in the union's publication in

Lehnert. the Court held that those expenditures occasioned “no

additional infringement of First Amendment rights,” because

the speech was “neither political nor public in nature.” Yet, the

Court also found it necessary to decide that those services were

germane to collective bargaining: “fajlthough they do not

directly concern the members of petitioners’ bargaining unit,

these expenditures are for the benefit of all. . . . [T]hese

expenses are comparable to the de minimis social activity

charges approved in Ellis.” Lehnert, 500 U.S. at 529 (emphasis

added). Significantly, the social activities at issue in Ellis were

held chargeable because, “[wJhile these affairs are not central

to collective bargaining, they are sufficiently related to it to be

charged to all employees.” 466 U.S. at 449 (emphasis added).

However, as the First Circuit recognized in Schneider v.

Colegio de Abogados, if government “compel[s] certain

individuals to help pay for a private benefit system for other

individuals.” that is “an arrangement that triggers due process

concerns if not First Amendment ones.” Consequently, manda-

tory fees “may be used to finance only core activities not

including ‘nongermane, nonideological’ ones.” 917 F.2d 620,

638 (1st Cir. 1990) (quoting Teachers Local | v. Hudson, 475

-19-

7. so n.13 (1986)); see also Hudson v. Teachers Local

. 743 F.2d 1187, 1194 (7th Cir. 1984) (“due process” “implies

that [an agency-fee] procedure must make reasonably sure that

[objecting nonmember] employees’ wages will not be used to

support any union activities that are not germane to collective

bargaining, whether or not the activities are political or ideologi-

cal”), aff'd on other grounds, 475 U.S. 292 (1986).

_ In sum, the Lehnert three-part test is necessari

tive, as the Court itself stated it and has applied it, igs

tive, as amicus AFL-CIO would like to have it. The court of

appeals correctly required the Board to show how the transfer

of mandatory student fees to organizations that engage in

political and ideological speech satisfies all three parts of the

test. Moreover, because political and ideological speech are at

stake here, all three parts of the test apply in their strictest form.

The court of appeals found that the coerced subsidies here did

not meet any part of that test even without strict scrutiny. See

Southworth, 151 F.3d at 735. Therefore, those subsidies. with

even greater reason, “also cannot survive the more exactin

strict scrutiny standard.” /d. at 731 n.13. :

III. Because Collecting Com i

pulsory Fees Compels A -

tion and Takes Individuals’ Property, por es Redue-

tion to Exclude Undeniably Nonchargeable Amounts Is

Required by the First Amendment and Due Process.

The court of appeals held that “the University c

temporarily collect from objecting students the be gt or

fees which would fund organizations which engage in political

and ideological activities, speech, or advocacy.” Jd. at 735

(emphasis omitted). The Board’s amicus curiae University of

California Student Association (“Association”) argues that the

court of appeals should, instead, have accepted “the Univer-

sity s proposal for a refund mechanism.” The Association

claims that this Court’s “compelled speech cases make clear

that it 1S constitutionally acceptable to collect fees from

dissenters, place them into an interest bearing escrow account

and to subsequently refund the portion of the fees that were

. -

{sic} used for nonchargeable political or ideological activity:

1 6

(U. Cal. Student Ass'n Br. at 16.)

The court of appeals’ rejection ofa mg roger ae

micus Association argues, la.) ©

penises wets necessary under this Court s decisions.

The Association relies on the fact that mics nach

443-44, identified “advance reduction of dues or intere; r

bearin escrow accounts” as “readily available ———

h.” (See U. Cal. St \ Br. .) How

a pote Ellis merely “noted the prema .

‘readily available alternatives, such as advance orig ye

dues and/or interest-bearing escrow accounts. Resa oto

decide whether an interest-bearing escrow ~ ee es

advance reduction would be ngewe nem “0 a ns sn nen

62 urpo f that case, it was sultici ,

a eames” Hudson, 475 U.S. at 304 (quoting Ellis, 466

U.S. at 444).

ion i addressed

Whether an advance reduction Is necessary was ad ns

for the first time in Hudson.’ The union = oer

escrow for 100% of objectors service fees. Seer ge

that. in addition to that escrow, and other - oreo s

“appropriately justified advance reduction... (ss) reac

minimize both the impingement [of the agency she : —

ees’ First-Amendment interests] and the burden de ‘ em

Id. at 309 (emphasis added). It would not have been

i » hargeable

© The fees would be both in escrow and used ae vf

political or ideological activity,” because the = pr

escrow of only part of the fees. See infra pp. 26-27.

approvi had

7 However, Ellis did refer vingly to the fact — caps z

earlier “suggested a more precise advance ap empty pobytoneee

Clerks v. Allen, 373 U.S. 113, 122 (1963).” 4 S.

added).

sans

for the Court to hold that the union must “provide adequate

justification for the advance reduction of dues,” id. (emphasis

added), if the Court required no advance reduction at all.

The Association claims that “a majority of the circuits . . .

have upheld the use of escrow-refund mechanisms.” (U. Cal.

Student Ass'n Br. at 23.) However, only one circuit has

unequivocally held that Hudson does not require advance

reduction; and that was a split decision. Gibson v. Florida Bar,

906 F.2d 624, 631 (11th Cir. 1990) (2-1 decision), cert.

dismissed, 502 U.S. 104 (1991). The positions on this issue of

the other circuits the Association cites are hardly clear:

Grunwald v. San Bernardino City Unified School

District held that “escrow accounts obviate the need for

advance reductions.” 994 F.2d 1370, 1374 n.2 (9th Cir. 1993).*

However, it also interpreted “Hudson as expressing a strong

preference for identifying nonunion members early enough so

that the deduction-escrow-refund procedure can be avoided

altogether.” Therefore, Grunwald ruled that, to “employ the

more cumbersome and intrusive deduction-escrow-refund

procedure, the union must . . . show that the preferred method

of doing things[, i.e., advance reduction,] is impossible or, at

any rate, far more costly or cumbersome.” /d. at 1375 (emphasis

added).” That has not been shown here. See infra pp. 27-28.

* But cof Dean v. TWA, 924 F.2d 805, 809 (9th Cir. 1991) (the

argument that an objecting nonmember “should have sought a judicial

injunction against collection of the dues” by a union that had no Hudson

procedures, “rather than reducing payment and challenging the dues after

[his] discharge” for noncompliance with an agency-shop agreement, “is

inconsistent with the Supreme Court's rejection of amy type of rebate

remedy”) (emphasis added).

* The Grunwald panel split 2-1 on whether the union had met that

burden. Compare 994 F.2d at 1376 (majority opinion) with id. at 1378-80

(Brunetti, J., dissenting).

* Advance reduction was not an issue, ogres sep

was of the union's collection procedure, in rews v.

Chechive Education Assn, 829 F.2d 335 (2d Cir. 1987). See id.

at 337-41.

¢ Crawford v. Air Line Pilots Ass'n interpreted this

Court's decisions as permitting “an escrow-and-rebate plan.

However, that was dicta, because the union there gave an

“advance reduction” to objecting nonmembers who opted -—

of payroll deduction and paid their fees directly. See 870 F.2d

155, 161 (1989), adopted en banc, 992 F.2d 1295, 1302 (4th

Cir. 1993). Moreover, dicta in another Fourth Circuit case

concluded that an advance reduction is constitutionally required

under Hudson:

The core principle underlying all of the decisions

prescribing allocation procedures 1s that the correct

amount of a service fee to be charged nonunion

employees for collective bargaining must be estab-

lished, to the extent practicable, in advance. . . .

_. . [T]Jhis underpinning principle mandates that

the union follow required procedures in advance of

assessing a fee. ...

Dashiell v. Montgomery County, 925 F.2d 750, 756 (4th Cir.

1991).

~The First Circuit's opinion in Schneider v. Colegio de

Abogados does not indicate that the plaintiffs contended that

advance reduction was required, so the court did not address the

issue. See 917 F.2d 620, 626-27, 635-37 (1st Cir. 1990).

* Thedecision in Hohe v. Casey cited by the Association

was on an appeal from denial of a preliminary injunction. That

decision explicitly was “not intended to intimate any opinion

regarding the ultimate merits.” 868 F.2d 69, 70, 74 n.7 (3d Cir.

1989). Moreover, the procedure in Hohe provided an advance

reduction, so that what the union escrowed there was the

ce

amount remaining after it had already reduced the employees’

fees. See Hohe v. Casey, 695 F. Supp. 814, 815 (M.D. Pa.

1988), aff'd, 868 F.2d 69 (3d Cir. 1989).

In contrast to these cases, two different panels of the Sixth

Circuit have squarely and unequivocally ruled that

Hudson clearly rejects the premise that a union may

continue to collect a service fee equal in amount to the

union dues once a non-union member has objected to

such a procedure. Rather, the union must instead

deduct from the service fee that amount which is

undisputedly used for political or ideological func-

tions.

Damiano v. Matish, 830 F.2d 1363, 1369 (6th Cir. 1987);

accord Tierney v. City of Toledo, 824 F.2d 1497, 1502-04 (6th

Cir. 1987).'° In Damiano, the court explained that this “ad-

vanced reduction method is clearly a less burdensome method

of accommodating non-union employees,” because escrow of

the part of dues that indisputably represents nonchargeable

expenses “would unduly deny the employee's unqualified right

to his property” and “insure that the dissenting employee could

° See also Finerty v. NLRB, 113 F.3d 1288, 1290 (D.C. Cir.)

(dictum) (quoting Ellis, 466 U.S. at 457 n.15) (“the union must calculate

‘what proportion of [union] expenditures went to activities that could be

charged to dissenters’ and then make an appropriate reduction in the agency

fee required of objecting nonmembers”) (emphasis added) (other alteration

in original), cert. denied, 118 S. Ct. 558 (1997): In re Chapman, 509 A.2d

753, 764-65 (N.H. 1986) (Souter, J., concurring) (citing Hudson for the

proposition that one way to avoid the violation of First-Amendment rights

caused by use of compulsory bar dues for lobbying “would be to require the

(bar) to provide a mechanism for a reduction in dues reflecting the extent

to which the lobbying is not germane or reasonably related to those

responsibilities approved in Lathrop” v. Donohue, 367 U.S. 820 (1961))

(emphasis added).

2

not use this property for his own preferred political, ideological

or other elected purposes.” 830 F.2d at 1369-70.

The escrow-refund scheme ,.. posed by amicus Associa-

tion is inconsistent with two principles on which Hudson rests.

First, although “a 100% escrow completely avoids the risk

that dissenters’ eeidiinne could be used ae:

additional procedural safeguards are necessary, oer :

agency shop itself impinges on the nonunion employees’ Firs

Amendment interests.” Hudson, 475 U.S. at 309 (emphasis

added). However. if coerced financial support of a private

association impinges on First-Amendment rights even with a

risk of improper spending, then not only spending wh

infringement, but also collection. Consequently, uc on

enunciated “constitutional requirements for the Union's

collection of agency fees,” id. at 310 (emphasis added), not _

“*a way of preventing compulsory subsidization of ideologica

activity,’ id. at 302 (quoting Abood, 431 U.S. at 237).

Here, the taking of property itself gives rise to a First-

Amendment claim, because it serves goals that oo

infringe upon First-Amendment freedoms, as \n Elr . v.

Burns. 427 U.S. 347 (1976), Abood, Hudson, and Keller v. State

Bar, 496 U.S. 1 (1990). The First-Amendment infringement

inherent in the taking in these cases Is forced association war

a private or quasi-private organization through the —

collection of contributions, fees, or dues. See. Ketter, 76 S.

at 13; Hudson, 475 U.S. at 301-02 & nn.8-9; Elrod. 427 US. at

355 (plurality opinion).'' The individual's inability to use those

funds for his or her own expressive and associational purposes,

'!_ “Compelled support of a private association is fundamentally

different from compelled support of government.” Abood, 431 U.S. at 259

n.13 (Powell, J., concurring in judgment); see Buckley v. Valeo, 424US. 1,

91 & n.124 (1976). The organizations for which the fees at issue here are

collected are indisputably “private organizations.” Southworth, 151 F.3d at

719-20.

,

identified in Damiano, is an additional effect of the forced

association first recognized in Elrod, 427 U.S. at 355-56

(plurality opinion).

When free association is infringed, even if only partially,

as by the contribution limitations in Buckley v. Valeo, 424 US.

|, 22-23 (1976), the infringement may be sustained only “if the

State demonstrates a sufficiently important interest and employs

means closely drawn to avoid unnecessary abridgment of

associational freedoms.” /d. at 25 (emphasis added). In Abvod.

Hudson, and Keller, the Court found such a state interest. but

only to the extent that compulsory fees are limited to a propor-

tionate share of the costs of certain functions of a union or

compulsory bar association and collected with certain “care-

fully tailored” procedural safeguards. Hudson, 475 US. at 302-

03; see Keller, 496 U.S. at 13-17.

“Careful” or “narrow tailoring” may not “require elimina-

tion of all less restrictive alternatives.” Board of Trustees v.

Fox, 492 U.S. 469, 478 (1989) (emphasis added). However. it

does “require the government goal to be substantial. and the

cost to be carefully calculated. Moreover, since the State bears

the burden of justifying its restrictions, it must affirmatively

establish the reasonable fit” between the restrictions and the

State 's objective. /d. at 480 (emphasis added) (citation omitted).

Second, in “this context, the procedures required by the

First Amendment also provide the protections necessary for any

deprivation of property.” Hudson, 475 U.S. at 304 n.13. Even

if the deprivation is only temporary, “[djetermining the ade-

quacy of predeprivation procedures requires consideration of

the Government's interest in imposing the temporary depriva-

tion, the private interests of those affected by the deprivation,

the risk of erroneous deprivations through the challenged

procedures, and the probable value of additional or substitute

procedural safeguards.” Brock v. Roadway Express, Inc., 481

U.S. 252, 262 (1987) (plurality opinion); see Connecticut v.

Doehr, 501 U.S. 1, 11-12 (1991).

- 26-

Escrow without advance reduction satisfies neither First-

Amendment careful tailoring nor the due-process test, particu-

larly here.

There may be “practical reasons why ‘/a/bsolute precision’

in the calculation of the charge to nonmembers cannot be

‘expected or required,” ” Hudson, 475 U.S. at 307 n.18 (quoting

Railway Clerks v. Allen, 373 U.S. 113, 122 (1963)) (emphasis

added). Nonetheless, some meaningful degree of “*[p}re-

cision . . . must be the touchstone’ in the First Amendment

context.” /d. at 303 n.11 (quoting NAACP v. Button, 371 U.S.

414, 438 (1963)). Collection of monies that indisputably will

not be used for lawfully chargeable activities, even if escrowed

and later rebated, is inherently imprecise. It thus violates the

First Amendment, because it is a means “substantially broader

than necessary to achieve the government's interest,” Ward v.

Rock Against Racism, 491 U.S. 781, 800 (1989), in seeing that

all individuals in a particular group subsidize only lawfully

chargeable activities. Coerced payment of monies to which a

private organization is not entitled, whatever the amount, is an

infringement on the individual’ s associational freedom different

in kind from, and thus materially greater than, payment of

monies that the organization is arguably due.

Collection of nonchargeable amounts also denies due

process. It presents a certainty of erroneous deprivation. And,

it adversely affects the individual's interests, not just in having

more money, but also in not associating with a private organiza-

tion more than necessary to serve the state’s interest in manda-

tory association and in “us{ing hjis property for his own

preferred political, ideological or other elected purposes.”

Damiano, 830 F.2d at 1370.

Moreover, the escrow-and-refund scheme proposed here by

amicus Association would almost inevitably permit the private

organizations receiving objecting students’ fees to spend them

for constitutionally nonchargeable political and ideological

purposes. Under that scheme, only a “proportion of the fees

based on previous years’ experiences with refund requests

-27.-

[wJould be placed in escrow.”

-” (U. Cal. Student Ass'n B

in other words, only the part of the fees that, ead pend

e, is undoubtedly nonchargeable would be escrowed "2

engage in and financially Support such speech without bei

. . . ate

— Ara minority.” (/d. at 6.) This argument is ‘sm

bon — of appeals advance reduction applies only to the fees

yecting students. Southworth, 151 F.3d at 735. No one

512 U.S. 753, 776 (1994).

The Association also .

. argues that “a refund

se me only Practical way to institute a student Pp fe

— neither student government nor the university has

icient information at the time fees are collected to calculate

,

This is precisely the ite

Hudson did not hold that “a 100% « posh pt anc

because it allowed that unions need not escrow the independently mudied

Poon of objecting nonmembers’ fees “that no dissenter could reasonably

challenge.” Unions must escrow only “the amounts reasonab in dispute.”

475 U.S. at 3104 n.23. That does not include the portion a unr on nnn,

Nt Cannot reasonably claim to retain based on the prior year’s expenses

- 28 -

what fees, if any, will be used in the upcoming school year for

political and ideological activity.” (U. Cal. Student Ass’n Br. at

8-10). This argument, too, is wholly without merit.

A union does not know what political activity it will

undertake in the coming year when it sets its dues and the fee

reduction for objecting nonmembers before a fiscal year begins.

Hudson considered that fact by permitting the advance reduc-

tion to be based on the preceding year’s expenditures. 475 U.S.

at 307 n.18."° The Association concedes the feasibility of that

practice here, because it proposes that the partial escrow

amount can be “based on previous years’ experiences.” (U. Cal.

Student Ass'n Br. at 10.)

The Association's spurious “practical” argument against

advance reduction is at best merely a complaint that advance

reduction is administratively inconvenient. However, “adminis-

trative convenience alone is insufficient to make valid what

otherwise is a violation of due process of law,” Cleveland Bd.

of Educ. v. LaFleur, 414 U.S. 632, 647 (1974). “Nor is addi-

tional expense occasioned by [meeting the ordinary standards

of due process] sufficient to withstand the constitutional

requirement.” Beil v. Burson, 402 U.S. 535, 540-41 (1971).

Therefore. the ““burden or inconvenience’” of annually

determining the constitutionally chargeable portion of manda-

tory fees before collecting the fees “*is hardly sufficient to

justify contravention of the constitutional mandate.’” Keller.

496 U.S. at 16-17 (quoting with approval Keller v. State Bar,

767 P.2d 1020, 1046 (Cal. 1989) (Kaufman, J., dissenting)); see

also Ellis. 466 U.S. at 444 (“administrative convenience” is

insufficient justification for denying objectors an “advance

reduction of dues and/or interest-bearing escrow accounts”).

3 See also Allen, 373 U.S. at 122-23 & n.8 (while “the proportion of

the union budget devoted to political activities may not be constant,” a

dissenting nonmember is “entitled” to “a reduction of future... exactions

from him by the same proportion” that nonchargeable expenses bear to total

expenses) (emphasis added).

- 29.

In sum, the court of appeals correctly rejected any sort of

refund scheme and - 3

advance reduction a —— vetoed the Board to carry out an

CONCLUSION

Except for its failure to acknowl

edge that strict scrutin

a. = court of appeals correctly decided bape

oe ts, like employees and attorneys, have a fundamental

tree ent right to choose freely the political and

a Causes they support with their money. State-coerced

mer support of Private organizations that engage in

maser pon. scan tetany does not directly serve

$ interest in the universi

Moreover, to the contrary, as the court of appeals ame

values of individualism and dissent” that are, or should be

taught in this nation’s instituti : ;

worth, 151 F.3d es ty itutions of higher education. South-

For the above reasons

appeals’ decision. . the Court should affirm the court of

Respectfully submitted,

RAYMOND J. LAJEUNESSE, JR.

Counsel of Record for Amicus

Curiae

National Right to Work Legal

Defense Foundation, -

8001 Braddock Rd., Suite 600

Springfield, VA 22160

(703) 321-8510

August 13, 1999