Appendix — Rutgers State University of New Jersey v. Galda

85- -19 86 G) | Supreme Court U.S.

85-1037) | re |

Nos. 85- _— and 85- DEC 16 986

a L, JR.

CLERK j

IN THE

Supreme Court of the United States

October Term, 1985

RUTGERS, THE STATE UNIVERSITY

OF NEW JERSEY, et al.,

Petitioners,

Vv.

JOSEPH P. GALDA, et al.,

Respondents.

NEW JERSEY PUBLIC INTEREST

RESEARCH GROUP, INC.,

Petitioner, |

Vv

.

JOSEPH P. GALDA, et al.,

Respondents.

APPENDIX TO PETITIONS FOR WRITS OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

Matthew P. Boylan John Cary Sims

(Counsel of Record) (Counsel of Record)

Gregory B. Reilly David C. Viadeck

Kathleen A. Dockry Alan B. Morrison

Lowenstein, Sandler, Brochin, Public Citizen Litigation Group

Kohl, Fisher, Boylan & Meanor Suite 700

A Professional Corporation 2000 P Street, N.W.

65 Livingston Avenue Washington, D.C. 20036

Roseland, New Jersey 07068 (202) 785-3704

(201) 992-8700 Attorneys for Petitioner

Attorneys for Petitioners New Jersey Public Interest

Rutgers, The State University Research Group, Inc.

of New Jersey, ef al.

EY EE Ie TI ee a ee EET

CASILLAS PRESS INC - 1717 K STREET NW, WASHINGTON, D.C. 20836 © 223-1220

TABLE OF CONTENTS

Opinion of the Court of

Appeals (Including Dissent)

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Order Amending Opinion

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Order Amending Opinion

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Opinion of the Court of Appeals

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Judgment of the Court of Appeals

ER en ere

Order Denying Petitions for Rehearing

RES aS 2s ee ee

District Court’s Findings of Fact and

Conclusions of Law

(June 20, 1984, as

I I coisas Grow ac ccustneecncs

Rutgers’ Policy Statement Concerning

Funding Special Student Programs ..............

Page

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 84-5498

JOSEPH P. GALDA, PAUL EWERT, KRISTINA

FARROW CYPEL, THOMAS H. ODOM, JOSEPH

RANDALL CORMAN, LORI KEELEY, LESLIE BEEBE,

LEONARD SCOTT KELTER, EDWARD D. WICKHAM,

and CHRISTOPHER LEPRE, Individually, and upon

behalf of all others similarly situated,

Appellants

Vv.

RUTGERS, The State University of New Jersey, DR.

EDWARD J. BLOUSTEIN, Individually, and as

President of Rutgers, The State University of New

Jersey, DR. NORMAN REITMAN, Individually, and as

Chairman of the Board of Governors of Rutgers, The

State University of New Jersey, DONALD S.

MACNAUGHTON, DAVID A. WERBLIN, KATHERINE

ELKUS WHITE, DONALD M. DICKERSON, SANFORD

M. JAFFE. ROBERT KAPLAN, EDWARD KRAMER, |

LINDA STAMATO, ROBERT J. TORRICELLI, MARY

WHITE BELL. as members of the Board of Governors

of Rutgers, The State University of New Jersey, and

WALTER K. GORDON, Individually and as Dean of

Rutgers Camden College of Arts and Sciences

The New Jersey Public Interest Research Group. Inc.,

Intervenor

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

DISTRICT OF NEW JERSEY

(D.C. Civil No. 79-2811)

:

2a

Argued February 26, 1985

Before: ADAMS, WEIS, and WISDOM,*

Circuit Judges

Filed August 28, 1985

Joseph W. Marshall, Esq. (ARGUED)

Myrna P. Field, Esq.

Mid-Atlantic Legal Foundation

400 Market Street -- 3d Floor

Philadelphia, PA 19106

Of Counsel:

Bradford S. Smith, Esq.

The Senate Building

P.O. Box 16

Cinnaminson, NJ 08077

Attorneys for Appellants

Gregory B. Reilly, Esq. (ARGUED)

Eric Tunis, Esq.

Lowenstein, Sandler, Brochin, Kohl,

Fisher, Boylan & Meanor

65 Livingston Avenue

Roseland, NJ 07068

Attorneys for Appellees

John Cary Sims, Esq. (ARGUED)

David C. Vladeck, Esq.

Alan B. Morrison, Esq.

Public Citizen Litigation Group

Suite 700, 2000 P Street, N.W.

Washington, D.C. 20036

Aitorneys for Intervenor New Jersey Public

Interest Research Group, Inc.

* The Honorable John Minor Wisdom. Circuit Judge. United

States Court of Appeais for the Fifth Circuit. sitting by designation.

3a

OPINION OF THE COURT

WEIS, Circuit Judge.

The plaintiff students contend that a mandatory

fee imposed on them by a university for the specific

purpose of supporting an independent organization

whose aims they oppose is an infringement on their

First Amendment rights. The district court held that

the funding procedure was permissible because the

outside organization contributed to the education of

its student members. We conclude that because the

educational component is only incidental to the

organization's ideological objectives, the educational

benefits are not adequate to overcome the

constitutional objections. Consequently, we will vacate

the district court's judgment and direct that collection

of the mandatory fee be enjoined.

In an earlier appeal in this litigation we reversed a

summary judgment in favor of defendants. Galda v.

Bloustein, 686 F.2d 159 (3d Cir. 1982) (Galda I). On

remand, the district court held a two week bench trial.

After filing extensive findings of fact and conclusions of

law, the court entered judgment for the defendants.

Galda v. Rutgers, 589 F. Supp. 479 (D.N.J. 1984).

This suit for injunctive relief was brought under

42 U.S.C. § 1983 by current and former students at

Rutgers Camden College of Arts and Sciences, a unit of

Rutgers, the State University of New Jersey. Plaintiffs

asserted that their First Amendment rights were

violated by the University’s imposition of a mandatory,

refundable fee for the specific purpose of supporting

the New Jersey Public Interest Research Group (PIRG).

The New Jersey PIRG has members at a number of

other coliege campuses in New Jersey. It is an

independent. non-profit corporation. controlled by a

board of student representatives at the state-wide level.

4a

It maintains a paid staff consisting of a director, one

part-time and six full-time employees.

PIRG is politically nonpartisan, but participates in

State legislative matters and actively engages in

research, lobbying and advocacy for social change. Its

staff and student members have lobbied for a federal

student assistance act, the Equal Rights Amendment.

a nuclear weapons freeze, and the enactment of the

Pine Lands Preservation Act. PIRG also opposed the

construction of the Tocks Island Dam on the Delaware

River.

In addition, members of the organization drafted

proposed legislation mandating a study of energy

production in New Jersey and testified in opposition to

an increase in utility rates before an administrative

agency. PIRG members have researched and published

documents on a number of other consumer and

environmental issues. The organization also provides

internships for students who receive academic credit

for the work they perform. '

Because PIRG is an organization independent of

the University, it is ineligible to receive money from the

general student activities fee. It has, however, qualified

for financial support under the Rutgers “neutral

funding policy.” To do so PIRG was required to submit

a “concept plan” to the University outlining the

organization's educational value. Following

administration approval, the next step was to

participate in an election where PIRG was required to

obtain the vote of at least 25% plus one of the student

body on a particular campus. The neutral funding

1. PIRG's concerns include environmental preservation efforts.

consumer protection, womens rights. tenants rights. tuition

policies, and energy conservation. Assisted by several

Rutgers law students. PIRG’s staff attorney has at various

times represented it in litigation connected with these

programs.

Sa

policy also requires that the votes must represent a

majority of the bailots actually cast.

PIRG's concept plan has received the University’s

approval in each of the three-year periods in which it

was submitted, and it has been successful in securing

the necessary affirmative votes in most of the student

referenda.

As a result of PIRG’s qualification under the

Rutgers’ funding procedures, each student enrolled at

a particular campus must pay a mandatory fee of $3.50

to PIRG. In a twelve year period, the organization

received more than $800,000 in this fashion and

currently receives over $100,000 per year from the

mandatory assessment. A student who does not wish

to support PIRG is required to request a refund, which

is generaily returned several months later.

In the first proceeding, without exploring the

plaintiffs’ contentions, the district court granted

summary judgment for defendants, holding that since

the fee was refundable, there had been no

constitutional infringement. Galda v. Bloustein, 516

F. Supp. 1142 (D.N.J. 1981). On appeal from that

ruling, we held that the refund provision was not

adequate and on that record even a temporary exaction

of the PIRG fee from plaintiffs could not be justified.

Galda I, 686 F.2d at 169. We remanded because there

was a genuine issue of material fact on whether

assessment of the fee infringed the plaintiffs’

constitutional rights.

At trial PIRG’s organizational structure was

developed in some detail. In essence, the court found

that the group's policies were made by the state board

of student directors, which also had the authority to

hire and discharge the salaried executive director. In

addiuon to an executive director, PIRG hires a paid

staff that manages the day-to-day operations of the

organization.

6a

Plaintiffs produced three expert witnesses who

testified that PIRG operates as a political action group

and its purpose is to “pursue change in the political

process." One expert opined that PIRG “consistently

represents and adheres to a liberal ideology and views

American society as covertly oppressive.” Another of

the plaintiffs’ experts conceded that he “could not

quantify PIRG’s political and non-political activities”

and that many of its projects were non-ideological.

Defendants produced four experts, including the

President of Rutgers, who testified to what they

believed were the educational benefits to the students

participating in PIRG. These included “learning to

advocate and thoroughly learning their adversary's

position in order to rebut them”, forcing students to

“publicly campaign and promote an organization”.

providing an opportunity “to investigate, research,

write, and advocate their positions before

governmentai agencies,” providing “students with

leadership opportunities,” and “teaching students to

function as citizens.” 589 F. Supp. at 493-94.

A number of faculty members as well as current

and former students testified about their participation

in PIRG activities. The students noted that their

experiences included public speaking, learning the use

of a law library, and developing interest in a public

service, governmental career which some followed after

graduation. The faculty members talked favorably

about the opportunity for, and close supervision of.

internships.

One faculty member spoke especially about the

“stream walking” phase of the environmental project

for clean streams. In this activity, participants walked

along water courses in search of illegal polluters who

were then reported to the Environmental Protection

Agency. The court found this to be a major activity.

Faculty members testified that the stream walking

7a

program was valuable because of the students’

opportunity to learn about the environment and

governmental process.

The defense witnesses did not dispute that PIRG

took positions on political as well as ideological issues

and worked actively to advance them. An examination

of PIRG’s financial documents by a certified public

accountant as well as an independent review by the

district court established that it was not possible to

“numerically quantify ‘political’ and ‘educational’

components of PIRG.”

The district court found that Rutgers “has made a

carefully reasoned decision that PIRG is a valuable

educational adjunct to the more traditional classroom

activities.” PIRG had “engaged in projects that can be

objectively characterized as both ‘educational’ and

‘political.. Because of the fact that some activities

ostensibly political are also inherentiy educational, it is

impossible to neatly quantify PIRG's activities into

these simplistic categories.” 589 F. Supp. at 495.

In passing on the experts’ testimony, the court

stated that to the extent the parties differ “about the

nature of PIRG and its contributions to the university

community. the court finds there exists some

difference of opinion in the academic community.”

But, the court concluded, “PIRG has a very substantial

educational component. and its presence at Rutgers

significantly enhances the educational opportunities

available for students at that institution.” The court

therefore found that “plaintiffs have failed to overcome

the presumptive validity of the University’s judgment

and have thus failed to make out a prima facie case

that their constitutional rights have been violated.”

Accordingly, judgment was entered for defendants.

Preliminarily, it is helpful to briefly review the

nature of the constitutional right at stake. Plaintiffs

assert that they may not be compelled to contribute to

8a

an organization which espouses and pri motes

ideological causes they oppose. The contours of this

right are still in the developmental stage. Frequently

cited as the seminal case is Board of Education v.

Barnette, 319 U.S. 624 (1943), where the Court

recognized an individual's right to refuse on religious

grounds to participate in the traditional flag salute.

The Court described the right as freedom from “a

compulsion of students to declare a belief.”

The Barnette rationale was extended to the forced

payment of “union shop” or “agency shop” fees,

portions of which were used for purposes not germane

to collective bargaining activities. Those decisions

beginning with International Association of

Machinists v. Street, 367 U.S. 740 (1961), progressed

through Railway Clerks v. Allan, 373 U.S. 113 (1963),

to Abood v. Detroit Board of Education, 431 U.S. 209

(1977).

In Abood, the Court found “meritorious” the

argument that employees “may constitutionally

prevent the Union's spending a part of their required

service fees to contribute to political candidates and to

express political views unrelated to its duties as

exclusive bargaining representatives.” Id. at 234. More

recently in Ellis v. Brotherhood of Railway, Airline &

Steamship Clerks, 52 U.S.L.W. 4499 (April 25. 1984),

without discussing the constitutional principle, the

Court devoted its attention solely to developing a

proper remedy for the violation of the First Amendment

right not to support an ideological view the person

opposes.

In another context, the Court has recognized the

right of an individual to reject a state measure that

forces him, “as a part of his daily life ... to be an

instrument for fostering public adherence to an

ideological point of view he finds unacceptable.”

Wooley v. Maynard, 430 U.S. 705. 715 (1977). See

9a

also Zauderer v. Office of Disciplinary Counsel, 53

U.S.L.W. 4587, 4594 (May 28, 1985).

In Buckley v. Valeo, 424 U.S. 1 (1976), the Court

held that contributing to a political message is

protected by the First Amendment. See also Federal

Election Comm'n. v. National Conservative Political

Action Committee, 53 U.S.L.W. 4293 (March 18, 1985).

Commeniting on Buckley, the Court in Abood observed

that compelling. as well as prohibiting, “contributions

for political purposes works no less an infringement”

on constitutional rights. 431 U.S. at 234.

Significantly, in First National Bank of Boston v.

Bellotti, 435 U.S. 765 (1978), a First Amendment

controversy. the Court drew no subject matter

distinction between partisan political topics and those

of general public concern.

In short. what Abood holds objectionable is the

“compulsory subsidization of ideological activity” by

those who object to it. 431 U.S. at 237. Commentators

have debated the basis supporting this right. It may be

a broad concept of “individual freedom of mind,”

Wooley v. Maynard, 430 U.S. at 714. or a ban on

coerced affirmation of distasteful views, or a right not

to be subjected to a limitation on freedom of

conscience. or perhaps a right to maintain silence in

the face of a governmental pronouncement.’ We resist

the temptation to expound on these absorbing theories

because whatever the source or underlying rationale.

the Supreme Court's precedents establish to our

satisfaction that plaintiffs have presented a valid

constitutional interest for consideration.

2. See. e.g.. Gaebler. First Amendment Protection Against

Government Compelled Expression and Association. 23

B.C.L. Rev. 995 (1982): Cantor. Forced Pavments to Service

Institutions and Constitutional Interests In Ideological

Non-Assocation. 36 Rutgers L. Rev. | (1983).

10a

Although the jurisprudentia) underpinnings for

the constitutional right are complex, the issue here is a

narrow one and may perhaps best be explained by

eliminating what is not at stake. This case does not

address the problem presented by a state university's

allocation of a mandatory non-refundable student

activity fee. We are not concerned here with the

question whether an organization with PIRG’s

philosophic outlook may be funded through the

general activities fund as are other campus

organizations representing diverse views.

In short, we do not enter the controversy on

whether a given campus organization may participate

in the general activities fee despite the objections of

some who are required to contribute to that fund. See.

e.g.. Kania v. Fordham, 702 F.2d 475 (4th Cir. 1983):

Maryland Public Interest Research Group v. Elkins.

565 F.2d 864 (4th Cir. 1977). See also Note. “Fee

Speech:” First Amendment Limitations on Student Fee

Expenditures, 20 Cal. W.L. Rev. 279 (1984).

And, although we are reluctant to belabor the

obvious, it apparently must be made absolutely clear

that in no way does this case present the issue of

whether PIRG or any other organization may be

restricted in the expression of its views on campus or

elsewhere. Nor does this case in any way question

PIRG's right to finance its operations by voluntary

contributions from those who agree with its objectives.

As Galda I emphasized. there is a distinction

between PIRG and student organizations that are

funded through the student activity fee. We noted that

the student activity fee is used to subsidize a variety of

student groups. and therefore that assessment can be

“perceived broadly as providing a ‘forum for a diverse

range of opinion.” In contrast. “PIRG does not provide

a forum for the expression of differing views” but is a

“group.” Id. at 166. Moreover. the PIRG fee is

lla

segregated from other charges listed on the students’

bills and supports only that “group.”

The question here is limited to whether a state

university may compel students to pay a specified sum,

albeit refundable, to an independent outside

organization that espouses and actively promotes a

political and ideological philosophy which they oppose

and do not wish to support.

in Galda I, we noted that “considerable deference”

should be accorded the university's judgment thai the

organization was “an appropriate participant in the

total university forum.” In order to “overcome the

presumptive validity of the university's judgment and

to make out a prima facie case that exaction of the fee

conflicts with the mandate of First Amendment,”

plaintiffs must establish that PIRG “functions

essentially as a political action group with only an

incidental educational component.” Id. at 166. In

addition, we stated that the university is free to

“counter the plaintiff's showing or to otherwise

demonstrate a compelling state interest by

establishing the importance of the challenged group's

contribution to the university forum.” Id. at 166-167.

In speaking of a prima facie case, Galda I referred

to the “exaction of the fee”, referring to the mandatory

assessment of the payment to PIRG. The elements of

compulsion and payment |» an outside organization

with which the plaintiffs disagree are the significant

factors that trigger the inquiry in this case.> Whether

the compulsion occurred through unilateral decision

of university officials or only after the vote of a majority

of the students does not diminish the infringement on

the plaintiffs’ right to withhold their support to an

organization whose aims they find repugnant.

3. These factors distinguish the situation where the challenged

group is part of the university community and is funded

through the student activity fee.

12a

At trial plaintiffs presented evidence that PIRG, in

at least some, if not a majority, of its activities is an

entity devoted to political and ideological objectives.

Defendants did not dispute that fact, but instead

focused on the educational benefits associated with

participation in the PIRG program. As noted earlier,

these include observing governmental agencies in

action, public speaking, research, leadership

development, and other factors which may ordinarily

be obtained from the “hands-on” training common to

any large organization and particularly one that has

some contacts with government.

The educational advantages described in the

testimony do not differ from those that might be

obtained by working with. or for, an independent

organization such as the Republican or Democratic

Party, or a clearly religious group which has

undertaken an active and vigorous proselytizing

program. As we have said, “it could not be seriously

contended that student fees could be funnelled to such

a group.” 686 F.2d at 166. Yet, the educational

component that the University presents here as

justification would be precisely the same were the

recipient group one that clearly could not receive

affirmative state support.

PIRG's efforts are primarily devoted to changing

conditions outside the University. For example, its

interest in environmental and energy concerns focuses

on state-wide or national issues. Similar in scope is its

commitment to enactment of an equal rights

amendment, reform of tenants rights, and a nuclear

weapons freeze. While such matters may affect the

general public, those causes are not particularly

germane to students of the University qua students.

Although such issues as educational loans and

consumer protection reports on businesses near

campus may come closer to direct student interests,

13a

they do not minimize the group's activities of a broader

scope. In this respect, PIRG’s programs and purposes

are quite unlike a service organization, such as a bar

association, which in the course of promoting the

specialized interests of the group may at times take

positions opposed by various members. See Lathrop v.

Donohue, 367 U.S. 820 (1961).

Although the training PIRG members may receive

is considerable, there can be no doubt that it is

secondary to PIRG’s stated objectives of a frankly

ideological bent. To that extent the educational

benefits are only “incidental” -- arising from or

accompanying the principal objectives -- and

subordinate to the group's function of promoting its

political and ideologicai aims.

It is not quantity that determines whether the

benefit is incidental in circumstances such as these.

That assessment is made by examining the nature of

the group and its primary function. Galda I made that

point in noting that in the procedural posture of the

case, the court had to assume “at least one of PIRG’s

functions is purely political, and non-educational in

nature.” 686 F.2d at 164-65. The district court in

reciting PIRG’s history stated, “Under the students’

proposal, PIRG was to be a non-partisan, non-profit

corporation which would ¢esearch and lobby for social

change.” 589 F.Supp. at 483. Those functions have

continued to be PIRG’s raison d'etre as a review of its

programs and activities confirms.

The experience gained from lobbying activities as

well as advocacy, leadership, public speaking, and

research might just as readily be obtained by

membership in the University sponsored Legislative

Action Committee, by participation in internships in

various governmental agencies also available to

Rutgers students, and through the work of other

campus organizations.

l4a

Moreover, it must be recognized that because the

plaintiffs are opposed to PIRG’s ideological aims, the

educational benefits flowing from PIRG’s activities will

not be available to them. Their beliefs exclude them

from access to the programs that offer the educational

opportunities. Despite that bar to participation,

plaintiffs must nevertheless pay to support the

organization.*

We conclude that defendants did not overcome the

caution we raised in our first opinion -- the educational

component cannot obscure the underlying substance

of the plaintiffs’ complaint that they were compelled to

finance a political entity whose function is to attain

certain fixed ideological objectives. 686 F.2d at 166.

Moreover, the evidence revealed that it is

impossible to isolate the “educational component”

from the ideological pursuits for purposes of

apportioning the expenses attributable to each. It is

difficult to believe that it could be otherwise since the

educational benefits are intertwined and integrated

with the political and ideological objectives. It is no

simple task, and probably an impracticable one, to

formulate principles that could be used to separate the

educational component of lobbying, campaigning, or

researching a paper that urges passage of certain

legislation from the organization's ideological goal

which is directly advanced by those activities.

The courts have observed that it is not always easy

to prorate the expenses properly incurred by a union as

collective bargaining representative with those

involving political action. See Ellis v. Brotherhood of

Railway, Airline and Steamship Clerks, 52 U.S.L.W.

4499 (April 25, 1984). It is however even more complex

4. Moreover. because they disagree with PIRG’s policies.

plaintiffs would not likely become members and hence would

have no voice in the selection of leaders for the group. Again.

that does not relieve them from the compulsory assessment.

15a

in the case of PIRG because the educational gains are

obtained only in direct pursuit of the ideological

objectives.

In Galda I, we left open the possibility that the

University might demonstrate a compelling state

interest by establishing the importance of PIRG’s

“contribution to the university forum.” Because he

believed that plaintiffs had failed to present a prima

facie case, the district judge did not reach this

question. The defendants did, however, have the

opportunity to produce evidence on this point and

rather than remand again for a determination of what

is primarily a legal question, we address the matter

here.

The University shoulders a heavy burden to justify

its determination to levy the assessment. A state may

not choose means that unnecessarily restrict

constitutionally protected liberty, if there is open a less

drastic way of satisfying its legitimate interest. Nor

may the state choose a iegislative scheme that broadly

stifles the exercise of fundamental liberties. Elrod v.

Burns, 427 U.S. 347, 363 (1976); Buckley v. Valeo,

424 U.S. at 25.

The compelling state interest in eliminating “free

riders” in the interest of preserving labor peace in the

union dues context, see Machinists v. Street, 367 U.S.

740 (1961), does not exist in the circumstances here.

The University has presented no evidence, nor do we

believe it could, that the educational experience which

it cites as justification could not be gained by other

means which do not trench on the plaintiffs’

constitutional rights. We recognize that a unicn’s

concerns and those of a university differ. particularly

in light of the latter's traditional interest in presenting

and discussing differing philosophies and theories on

a wide range of topics. The relevance of Abood,

however, is not lost because of those distinctions.

16a

As we cautioned earlier, we do not here decide the

constitutionality of a university's allocation of a

compulsory activity fee. But a comparison of that

procedure with the “content neutral” funding scheme

for entities outside the university as used at Rutgers is

helpful in demonstrating the objectionable features of

the mandated fee challenged here.

One of the arguments used to justify allocation of

activities fees to speakers or campus organizations

that present controversial views is the educational

necessity of exposing the university community to a

diversity of responsible opinion. In fulfilling its role. it

is expected that a university will strive for balance and

afford adequate opportunity for offering opposing

viewpoints.

There is room for argument that a university's role

of presenting a variety of ideas is a sufficiently

compelling reason for some infringement of First

Amendment rights just as is the need for labor peace in

the union dues cases. That contention loses its force.

however, when an outside organization independent of

a university and dedicated to advancing one position.

is entitled to compelled contributions from those who

are opposed. In that situation a university's ability to

insure a balance in access is infringed. if not

prevented, in some circumstances and the quid pro

quo for a payment to a forum disappears.

Generally, when an activity fund comes into

existence, all student groups on campus are free to

compete for a fair share. That is not the situation here

where the mandated contribution is earmarked for

only one organization, an organization which has no

obligation to use any part of the fund for the benefit of

a group which pursues a different philosophy.

The University appears to argue that the neutral

funding policy supplies the requisite opportunity for

equal access, but it is no answer to say that opponents

17a

may utilize the “neutral funding” policy to support a

vehicle of their own. For example, the opponents may

be small in number, as is apparently true here, and

unable to attract the necessary student support. No

extended discussion is required to explain the basic

concept that the First Amendment protects the views of

a minority as well as those of the majority.

Moreover, even if the opponents succeed in

achieving mandatory contributions for their own

organization, they are not relieved from the obligation

to pay a fee to a group with which they disagree. For

example, if the university compelled a student to make

separate contributions to both the Democratic and

Republican National Committees, the evil is not

undone; it is compounded. Adherents to each party

would be forced to pay a fee to the other political group,

a clearly unconstitutional exaction.

The objection to funding an outside entity through

the “neutral funding” procedure is that the result

achieved is not neutral and does not achieve equal

access. The process offers an opportunity for a

majoritarian group to compel support from minorities

in circumstances where no compelling state interest

justifies the limitation on First Amendment rights.

The situation is quite different than that which

would be presented if the outside organization. for

example, were a well equipped museum or symphony

society where the university had no comparable

facilities to enhance its teaching capacity. Nothing in

the record here demonstrates that in its ordinary

operations the University is unable to offer students

the opportunity to learn about environmental or

consumer concerns or similar matters advocated by

PIRG.

The University has thus failed to show any

compelling state interest that would justify overriding

the plaintiffs’ First Amendment rights.

18a

It follows, therefore, that the district court erred in

concluding that plaintiffs had failed to make out a

prima facie case. They presented credible evidence that

PIRG was an outside independent, ideologically-

oriented organization whose activities they opposed

but were nevertheless compelled to support directly

through a mandatory fee. Those facts were not

disputed, and by presenting that evidence plaintiffs

established a prima facie case.

The University relied on the deference to be given

its judgment as to PIRG's educational value. But as has

been discussed, that judgment was not supported by

evidence of an educational component other than that

incidental to, and inherent in, the ideological

activities. Moreover, the district court did not make

any findings to demonstrate a compelling state interest

that would justify utilization of PIRG as a vehicle for

the incidental educational benefits in preference to a

campus, or another outside organization, which did

not require the compelled support of plaintiffs.

Defendants did not produce any evidence that

would allow an advance proration of the mandatory fee,

see Robinson v. New Jersey. 741 F.2d 598 (3d Cir.

1984), and we have previously found the rebate

procedures unsatisfactory. Hence, the exaction of a

compulsory fee payable to PIRG cannot continue. We,

of course, make no judgment as to a voluntary

contribution program.°*

| Accordingly, the judgment of the district court will

be vacated and the case will be remanded to the district

court for the entry of an order enjoining the

assessment of the mandatory fee payable to PIRG.

S. At trial, the voluntary funding procedures used by PIRG at

the University of Minnesota and the University of

Massachusetts were described in some detail. We do not

express any views on those procedures. but they do differ

from Rutgers’ because they allow students to decide in

advance if they wish to support PIRG.

19a

ADAMS, Circuit Judge, dissenting.

I.

I agree with the majority that PIRG's objectives are

in some sense political; I also share the majority's

implicit doubts about the wisdom of the Rutgers

funding policy that is under review here. Nonetheless, I

am impelled to dissent, for in my view, the First

Amendment does not permit the courts to translate a

determination that speech is political or that a

university's decision is unwise into a conclusion that

an outlet for campus speech is unconstitutional and

must be foreclosed. When a disagreement with the

politics of a group or the wisdom of a policy is

transformed into intrusive judicial review of core

university decisions, I believe we take an improvident

step. Indeed, as I read the applicable Supreme Court

cases and this Court's decision in Galda v. Bloustein,

686 F.2d 159 (3d Cir. 1982) (Galda I), the First

Amendment not only fails to support such an

approach. it may very well preclude it.

The crux of my disagreement with the majority

concerns the proper interpretation and application of

the prima facie threshold this Court articulated in

Galda I:

To overcome the presumptive validity of the

university's judgment that an organization

contributes to the university community, and to

make out a prima facie case that exaction of the fee

conflicts with the mandates of the First

Amendment. persons objecting to the fee must

establish that the challenged group functions

essentially as a political action group with only

an incidental educational component.

686 F.2d at 166 (emphasis supplied). The majority

reads the standard established in Galda ! to require

courts to weigh a group's political objectives against its

20a

educational benefits to determine which are

“primarily” its goals. See Majority Typescript at 16.

This interpretation allows the majority to concede that

PIRG provides students with “considerable” training,

and yet to conciude that such educational benefits are

only “incidental” to its main objectives.“' Id. Under the

majority's reading. if the group's principal objectives

are political, the extent of its educational benefits is

necessarily incidental, or secondary. Id. In my view,

this analysis misconstrues the Galda | standard, and

improperly extends the compelled association doctrine

to a university setting without adequately considering

the university's central role of providing an education

through the exchange of diverse viewpoints. Because

the majority's result conflicts with several lines of First

Amendment precedent, | respectfully dissent.

Il.

Resolution of the issues raised in this appeal

requires careful attention to the particular features of

the challenged funding mechanism. See, e.g., Ellis v.

Brotherhood of Railway, Airline, & Steamship Clerks.

104 S. Ct. 1883 (1984). The majority acknowledges that

the $3.50 fee is fully refundable, but then repeatedly

|. The district court’s final factual finding was as follows: “The

court finds that PIRG has a very substantial educational

component, and that its presence at Rutgers significantly

enhances the educational opportunities available for students

at that institution.” Galda v. Rutgers. 589 F. Supp. 479. 496

(D.N.J. 1984).

Appellants do not challenge this factual finding as clearly

erroneous. nor does the majority dispute its accuracy. Thus. the

majority begins with the unchallenged finding that “PIRG has a

very substantial educational component.” yet concludes.

without overturning any factual finding. that PIRG's

“educational benefits are only ‘incidental.’~ Majority Typescript

at 16. I do not believe that a fair reading of Galda I empowers us

to so disregard the district court's factual finding regarding

educational benefits. See infra pp. 16-18.

2la

characterizes the refundable fee, incorrectly I believe,

as a “mandatory assessment” or “compelled

contribution.” See Majority Typescript at 14, 18, 20,

22-25. This case necessarily implicates competing

First Amendment inter*sts of the university itself, as

well as of those students who participate in PIRG,

those students who merely desire exposure to its

viewpoints, and those students -- plaintiffs here -- who

oppose its views altogether. Where so many competing

interests are involved, it is crucial to consider the

extent of infringement of plaintiffs’ rights. See Kania

v. Fordham, 702 F.2d 475, 476 n.3 (4th Cir. 1983)

(noting in a similar case challenging mandatory

funding of a “liberal” school newspaper that amount of

fee compelled is $4.60 a year. and that extent of

abridgement must be considered in striking the

balance between educational goals of the university

and the speech and association rights of its students):

Gaebler, First Amendment Protection Against

Government Compelled Expression and Association.

23 B.C.L. Rev. 995, 1014-17 (1982) (arguing that

Supreme Court's decisions in compelled association

cases can be reconciled only by considering the extent

of the infringement on individual's right not to

associate). Plaintiffs’ complaint concerns « temporary,

fully refundable, payment of $3.50 a year. As this Court

has pointed out. “a temporary deprivation of funds

does not have the same impact on constitutionally

protected speech that the denial of a forum or the

forcible contribution to a political cause against one’s

will would have.” Robinson v. State of New Jersey, 741

F.2d 598, 611 (3d Cir. 1984), cert. denied. 105 S. Ct. 1228

(1985).?

2. In Robinson. we found support in Justice Harlan’s opinion in

Lathrop v. Donohue. 367 U.S. 820. 848 (1961) (Harlan. J..

concurring). In that case. a lawyer challenged as “compelled

association” the requirement that he pay dues to a bar

association that lobbied for legislation that he believed was not

22a

Imposition of a wholly refundable fee to support

one voice in a university forum is a far cry from the

sorts of compulsion heretofore considered

unconstitutional under the compelled association

doctrine. In Barnette, the foundation of this doctrine.

students were literally compelled to stand up and recite

in public a pledge that they did not believe. In Wooley

v. Maynard, 430 U.S. 705 (1977), individuals were

compelled to display in public a motto that offended

their religious tenets. And in Abood v. Detroit Board of

Education, 431 U.S. 209 (1977), union members were

forced to provide financial support to an organization

whose sole purpose was to serve as their exclusive

mouthpiece, but which promulgated views that some

members opposed.

Rutgers forces no student to participate in or

pledge allegiance to PIRG. Moreover, PIRG is in no way

in his interests. Justice Harlan found the situation clearly

distinguishable from West Virginia State Bd. of Educ. v.

Barnette. 319 U.S. 624 (1943). where students were required to

salute the flag against their will:

What seems to me obvious is the large difference in degree

between. on the one hand. being compelled to raise one’s

hand and recite a belief as one’s own. and. on the other.

being compelled to contribute dues to a bar association

fund which is to be used in part to promote the expression

of views in the name of the organization (not of the dues

payer). which views may turn out to be contrary to the

views of the dues payer.

Id. at 858. Justice Harlan found the difference in degree “so

great as to amount toa difference in substance. "Id. He pointed

out that without a recognition of that difference. any taxpayer

could object to his funds being used for military purposes. or

for “school textbooks or instruction which he finds

intellectually repulsive.” Id. at 860. That. however. was not and

is not the state of the law. See Hamilton v. Regents of Univ. of

Cal., 293 U.S. 245. 268 (1934): see also United States v. Lee.

455 U.S. 252 (1982): Pruneyard Shopping Center v. Robins.

447 U.S. 74. 85-88 (1980).

23a

the sole mouthpiece of Rutgers students, and does not

purport to speak for the student body on any mattér.

Rather, it participates as one voice among many

student groups, all of which receive some level of .

funding from student fees, and all of which contribute

distinct ideological viewpoints to the university forum.

PIRG and the school newspaper do receive more funds

than other student groups, but only because they have

satisfied certain objective requirements open to all

regarding educational benefits and widespread

student support. The PIRG fee is, moreover, fully

refunded within the school year when a student checks

off a card included with the term bill.

Thus, we must keep in mind the relatively minimal

degree of infringement on plaintiffs’ First Amendment

rights. Because Galda I was decided at the summary

judgment stage, we had to assume that PIRG had only

an incidental educational value and was not otherwise

justified. We held in those circumstances that the

refund mechanism would not be sufficient to cure the

constitutional defect. The majority appears to consider

the refund issue decided for all situations. See Majority

Typescript at 24. The Robinson and Ellis decisions,

however, demonstrate that whether and how the fee is

refundable are critical considerations in weighing

competing interests and balancing relative

infringements of rights.

The fact that the PIRG fee is fully refundable serves

two purposes. First, it allows oojectors to register their

position immediately, so there is less danger that their

views will be confused with those of PIRG. Second, it

gives objectors their money back. so that they are not

in fact compelled to support the group. If the funding

mechanism were shown to be merely a ruse for

advancing certain ideological views, this Court has

held that the refund would not be sufficient. Galda I,

686 F.2d at 169. If plaintiffs had demonstrated that the

added institutional support provided by the separate

24a

funding mechanism was motivated by educators’

ideology rather than by their desire to assure the

vitality of an organization engaging widespread

student interest, | would not dissent. regardless of the

refund. Where no such showing has even been

suggested, however, and where PIRG in fact has been

found by extensive testimony to have “a substantial

educational component,” the effect of the refund

mechanism is relevant in determining the extent of the

First Amendment infringement relative to competing

interests of other students and the university. As will

be demonstrated, the competing interests involved

here are considerabie. In view of those interests, |

conclude that a fully refundable fee of only $3.50 per

year does not impermissibly violate the First

Amendment rights of objectors.

Ill.

A.

Four distinct lines of First Amendment doctrine

converge in this case to suggest that the majority's

interpretation of Galda I is incorrect. The first.

perhaps best characterized as prudential, concerns the

limited role of federal courts in overseeing a

university's educational policy. The majority's

rationale subjects state university academicians to

intrusive judicial oversight in educational matters,

contrary to Supreme Court admonitions about the

necessity for deference in this area. See Widmar v.

Vincent, 454 U.S. 263, 268 n.5 (1981); id. at 279 n.2

(Stevens, J., concurring); Healy v. James, 408 U.S.

169, 180-81 (1972); Tinker v. Des Moines Independent

Community School District, 393 U.S. 503 (1969).* This

3. In another school setting. this Court recognized the

fundamental importance of limiting judicial intrusion in

academic affairs. See Seyfried v. Walton. 668 F.2d 214. 216-17

(3d Cir. 1981) (refusing to intervene where school

25a

call for deference is not intended to denigrate students’

First Amendment rights; rather, it recognizes that

federal court review of university decisions carries

serious implications for academic freedom. Sweezy v.

New Hampshire, 354 U.S. 234, 250 (1957).

Under the majority's reading. the only limitation

on judicial intrusion is a judge's view of what

constitutes a “political” objective.‘ The majority states

that where a judge finds that a group assisted by the

university through student fees is “primarily political”

superintendent suppressed speech based om sexual content.

because “these responsible for directing a school’s educational

program must be allowed to decide how its limited resources

can be best used to achieve the goals of educating and

socializing its students”): see also American Future Systems v.

The Pennsylvania State Univ.. 752 F.2d 854. 870 (3d Cir. 1984)

(Adams. J.. concurring).

4. The problem with the majority's exclusive emphasis on a

group's political quality is that almost any group's objective. no

matter how edu-ational it may also be. can be characterized as

political. “Virtually ali educational decisions necessarily involve

‘political’ determinations.” Board of Educ. v. Pico. 457 U.S.

853. 890 (1982) (Burger. J.. dissenting).

The majority defines as political only those groups with “a

frankly ideological bent.” Majority Typescript at 16. The

difficulty with this definition was succinctly expressed by

Judge Wright in Business Executives’ Move for Vietnam Peace

v. FCC. 450 F.2d 642. 661 (D.C. Cir. 1971). rev'd sub nom.

Columbia Broadcasting System. Inc. v. Democratic Nat.

Comm., 412 U.S. 94 (1973):

The line between ideological and nonideological

presentations is an almost impossible one to draw. All too

often in our society one particular ideology -- that of

passivity. acceptance of things as they are. and exhaltation

of commercial values -- is simply taken for granted.

assumed to be a nonideology. and allowed to choke out all

the rest.

See also Lawrence Univ. Bicentennial Comm'n v. City of

Appleton. 409 F. Supp. 1319. 1326 (E.D. Wis. 1976).

26a

in nature, the First Amendment mandates that the

group be denied such assistance. While it attempts to

limit its holding to the facts of this case, no principled

basis is advanced to distinguish the program in

question here from the mandatory general activities fee

that supports such student groups at Rutgers as the

ACLU and the NAACP, or indeed, from similar

mandatory activity fee programs in state universities

across the country. The majority's rationale suggests,

for example, that if a law journal at a state university

can be said to have political objectives -- insofar as, like

PIRG, it might take a particular ideological stance, and

seek to influence legislation on issues of public

controversy beyond the campus environs -- its funding

from student tuition or fees must be cut off.*

The mere possibility of such judicial oversight of

educational decisions effectively invites abusive

5. The majority proposes two distinguishing factors: (1) PIRG is an

independent “outside” organization, while student activity

groups are “inside” the university: and (2) the university

maintains control over the student groups funded through the

general activities fee. and can therefore “insure a balanced

approach.” Majority Typescript at 22. The inside-outside

distinction does not withstand scrutiny: certainly many

student group activities will extend outside the university. and

there is no university regulation. nor any First Amendment

requirement. forbidding student groups from venturing

beyond campus boundaries to further their interests or

education. or from concerning themselves with effecting

change outside the university. Under the majority approach. a

human rights student group that takes a stand on apartheid

would risk losing its funding. Student groups funded through

the general activities fee at Rutgers include the Rutgers

University Legislative Action Committee. which lobbies in

Washington. D.C. and Trenton. 598 F. Supp. at 482. With

respect to PIRG’s “independence.” there would appear to be no

constitutionally significant difference between funding a local

student chapter of the nationwide NAACP and funding a local

board of New Jersey PIRG. whose membership extends only to

university students across the state.

27a

litigation by any student who objects to the political

position of a funded student group. Whether or not

such suits ultimately succeed, their institution, and

even the likelihood of their institution, would seriously

restrict the First Amendment freedom of state

universities to provide a wide-open marketplace of

ideas, and of student groups to speak out om matters of

public importance.

B.

A further indication that the majority's reading of

Galda I has missed the mark is its result: the Court

orders a state university to exclude from a refundable

arrangement a group that repeatedly has met all

objective requirements of an equal access forum, and

that concededly provides substantial educational

benefits to the students, simply because the content or

objectives of the group's speech are too “political.” This

comes close to requiring a state university to do

There is also no support in the record for the majority's second

distinction. Indeed. the record demonstrates that the

university has the capacity to keep tighter control on PIRG than

on its internal student groups. PIRG is subject to triennial

review before the university board and the general student

body: other student groups do not answer to the university or

to the student body as a whole. In addition. this distinction

appears to be based on the notion that universities have a

constitutional duty under the First Amendment to “insure a

balanced approach.” Id. at 22. Thus. the majority concludes.

“the objection to funding an outside activity is that the result

achieved is not neutral.” Id. at 23. But it is only access that

must be neutral. not results. Beyond the broadcast media

context. attempts to exert government content control in order

to achieve “balance” are prohibited by the First Amendment.

See Miami Herald Publishing Co. v. Tornillo. 418 U.S. 241

(1974). The university does not. and under the First

Amendment probably may not. insure balance in the allocation

of its general student activity fee. and thus the “quid pro quo”

to which the majority refers simply does not exist under any

funding program. See Majority Typescript at 22.

mina

28a

precisely what the Supreme Court declared

unconstitutional in Consolidated Edison v. Public

Service Commission, 447 U.S. 530 (1980). There, the

Supreme Court held that a state body may not prohibit

a utility from using bill inserts to discuss “political

matters.” 447 U.S. at 532. Here, the majority holds

that a state body must exercise content control in a

manner that will inhibit speech that is primarily

political, or politically motivated.®

As the Court stated in Consolidated Edison, the

prohibition or inhibition of speech concerning issues

of public controversy “strikes at the heart of the

freedom to speak.” 447 U.S. at 535; see also Mills v.

Alabama, 384 U:S. 214, 218 (1966) (“there is practically

universal agreement that a major purpose of the [First]

Amendment was to protect the free discussion of

governmental affairs”).

C.

Perhaps more fundamentally. the majority's

reading is inconsistent with the two central doctrines

that guided the Court in Galda !: (1) the analysis

applied to claims of compelled association in Abood v.

Detroit Board of Education, 431 U.S. 209 (1977): and

6. The majority insists that it is not ordering PIRG silenced. but

only demanding that it not be funded in this particular

manner. But for First Amendment purposes. a cutoff in

funding because of political content is just as impermissible as

outright suppression. See Stanley v. Magrath. 719 F.2d 279

(8th Cir. 1983) (university cannot change method of funding

school newspaper on basis of newspaper's content). As the

Court reiterated in Healy v. James. 408 U.S. 169 (1972).

involving the right of the Students for a Democratic Society to

be officially recognized as a student group. “freedoms such as

these are protecte® sot only against heavy-handed frontal

attack, but also from being stifled by more subtle governmental

influence.” Id. at 183 (quoting Bates v. City of Little Rock. 361

U.S. 516. 523 (1960)).

29a

(2) tne public forum doctrine as applied in Widmar v.

Vincent, 454 U.S. 263 (1981), and related cases.

In Abood, the Supreme Court held that the

imposition of compulsory union dues violated

objectors’ First Amendment rights not to associate

when such dues were used for political purposes

unrelated to bargaining. Abood does not stand for the

proposition that no political speech may be funded by

mandatory union dues. Only political speech

substantially unrelated to the union's central purpose

-- collective bargaining -- may not be so funded. The

Galda I test substitutes the university for the union,

by barring mandatory funding of political speech

substantially unrelated to the university's central

purpose -- providing an education.’

Abood and its progeny are best understood as

establishing a two-step inquiry where claims of

compelled speech are raised in a context of

institutional fees. The first determination, whether the

speech is political. reveals the extent of the

infringement caused by compelled support. See Ellis v.

Brotherhood of Railway, Airline, & Steamship Clerks,

104 S. Ct. 1883, 1896 (1984) (compuisory contributions

to union's social activities do not implicate any greater

infringement on First Amendment rights than the

permissible contributions already required for

collective bargaining). Once an infringement is

7. While Abood guides us in considering the rights of students

not to associate, it is important to note the differences between

compulsory union dues and a mandatory student fee. See

supra. Section II. The justification for compelling union dues

was found in a legislative judgment that collective bargaining

was crucial to labor peace. Abood. 431 U.S. at 224. The

justification for compelling student fees in a university setting

is found in the First Amendment itself. which protects a

university's right to educate. and students’ rights to be

educated by exposure to diverse ideological viewpoints.

30a

identified, the second and more crucial question is

whether the compulsion is nevertheless justified

because the speech is germane to the institution's

purpose.

The two-step analysis required by Abood and Ellis

is confirmed by this Court's recent application of

Abood in Robinson v. State of New Jersey, 741 F.2d

598. In Robinson, we upheid the constitutionality of

compelled support for lobbying on behalf of public

employees’ contracts, on the ground that activity

relevant to collective bargaining may be funded even if

it is also political. 741 F.2d at 609.

The Galda I standard is drawn from Abood, and

incorporates Abood's two-part inquiry. Galda I directs

the district court to ask (1) whether the group funded is

primarily a political action group: and (2) if the group

is political, whether its speech is nonetheless germane

to the university's purpose in providing an education

through exposure to a marketplace of ideas -- i.e.,

whether the group has more than “an incidental

educational component.” 686 F.2d at 166. The majority

sidesteps the second part of the Galda | prima facie

inquiry by finding that the group's “political”

objectives effectively negate its educational component.

It holds that where a group's objectives are primarily

political, the extent of the group's educational benefits

to the university community is immaterial. This

application treats a two-step test as a call to subjective

balancing.

Although some of its activities are political, the

district court found that PIRG does in fact play a

significant educational role in the university forum,

and has a “very substantial educational component.”

589 F. Supp. at 496. In minimizing PIRG'’s educational

benefits, the majority determines sub rosa that this

finding is clearly erroneous. The district court's

finding, however, is comprehensively supported by the

3la

record, which includes the following facts:

l. PIRG's objectives. as stated in its Articles of

Incorporation. are two-fold:

a. to engage in non-partisan analysis, study

and research of such issues as_ urban

revitalization, consumer protection, resource

planning. urban and rural occupational safety and

labor conditions. protection of natural areas and

enviranmental quality, racial and sexual

discrimination, landlord-tenant relations, delivery

of health care and similar matters of urgent or

long-range concern to the general welfare of the

people of the State of New Jersey.

b. to make available to the public at all times

a full and fair exposition of the pertinent facts and

results of such non-partisan analysis, study and

research so that citizens may form independent

conclusions beneficial to the community.

Galda v. Rutgers, 589 F. Supp. at 487.

2. PIRG's activities. in addition to the lobbying

highlighted by the majority. include: sponsorship of

debates, lectures. and public fora within the university

on issues of public policy: publication and distribution

on campus of informational pamphlets and consumer

guides on various topics, including solar energy,

student financial aid. and the transportation system at

a Rutgers campus; non-published research papers on

Similar subjects; staffing a consumer hoiline: and

conducting a “streamwalking™ program to identify

sources of illegal water pollution. Id. at 487-88.

3. PIRG is governed entirely by students elected

by their peers at both the local and state levels. It is

“independent” from Rutgers only insofar as its

governing board includes students drawn in addition

from several other universities in the state. Its work is

conducted by student volunteers. student interns who

32a

receive academic credit, and several staff employees.

PIRG’s educational benefits were testified to by eight

past and present students who had participated in

PIRG, id. at 489-90; nine faculty members who had

supervised student internships with PIRG, id. at

490-92; and four experts, including two university

presidents, a vice-president, and a chancellor. id. at

493-94.

4. Plaintiffs called no Rutgers students or faculty

to rebut the testimony from students and faculty

presented by defendants. The sum total of plaintiffs’

testimony consisted of three outside experfs. Of the

three. one testified that extracurricular student

activities were “merely peripheral to a university's

educational mission,” and another stated that

“universities should be places where students are

somewhat removed from ideologies and as fair and

dispassionate . s possible.” Id. at 492-93.

Given these comprehensive, painstaking findings

by an able district judge. I do not believe we can say

that the district court erred in concluding that the

plaintiffs failed to make out a prima facie case, because

PIRG has more than an incidental educational

component.

D.

My most critical concern regarding the majority's

First Amendment analysis is its narrow focus. This

focus may be attributable to the posture of this case.

which was initiated by a handful of students objecting

to the funding of a particular group. The Galda ! prima

facie threshold concentrates in the first instance on

these objections. but the majoritys interpretation

renders that focus exclusive. The majority approach

implies that the only First Amendment interest at

stake is that of objecting students not to have $3.50

temporarily exacted from them. The Court in Galda I.

33a

however, recognized that there were other interests at

stake, and insisted that the inquiry also consider the

role of the particular group in the “total university

forum.” 686 F.2d at 166-67.

A broader perspective demonstrates that we are

not dealing with a single speaker, but with one of many

speakers in an equal access university forum that also

supports a variety of student groups. In addition, we

must consider not only the rights of the objecting

students, but also the right to associate effectively of

the large number of students who voted for, participate

in, and want to support PIRG, as well as the right of the

student body as a whole to receive information through

the exchange of ideas that inheres in the very nature of

a university education. Fisially, the majority may be

overlooking the delicate First Amendment rc!e of a

State university in operating an equal access

educational forum.

While these additional considerations may appear

to complicate the task, they point to a well-established

doctrinal approach developed precisely for situations

in which all of these competing interests are inevitably

intertwined -- the public forum doctrine. That doctrine

holds that where the state opens a forum to expression,

it must operate the forum on a content-neutral basis.

See generally Perry Educ. Ass'n v. Perry Local Educ.

Ass'n, 103 S. Ct. 948 (1983); Widmar v. Vincent, 454

U.S. 263."

8. “Once a forum is opened up to assembly or speaking by some

groups. government may not prohibit others from

assembling or speaking on the basis of what they intend to

say. Selective exclusions from a public forum may not be

based on content alone. and may not be justified by reference

to content alone.” Police Dept. of Chicago v. Mosley. 408 U.S.

92. 96 (1972). cited by both majority and concurrence in

Madison Joint School Dist. v. Wisconsin Employment

Relations Comm'n. 429 U.S. 167. 176 (1976).

34a

Developed to protect groups excluded from a state

forum on the basis of the content of their speech, the

public forum doctrine also answers many of the

concerns raised by the objecting students here.

Whenever a government body supports speech, it

might be charged that those who contribute to that

body, either through taxes, tuition, or fees, are

compelled to support a particular point of view. At the

same time, government institutions control many

effective fora for speech, so if objectors’ complaints

were everywhere converted by the First Amendment

into bars to speakers’ access and support, the

marketplace of ideas would be restricted. Therefore,

the First Amendment requires the government to

administer a public forum on a content-neutral, equal

access basis (with the exception that a forum may be

reserved for its intended purpose}.® If this rule is

followed, the objectors’ compelled support is not tied to

any particular viewpoint, but to the forum as a whole.

As long as the contribution is to a public forum, rather

than to an ideological group, the First Amendment is

not impermissibly infringed. See Veed ov.

Schwartzkopf, 353 F. Supp. 149, 152 (D. Neb.)

(applying public forum analysis to claims of

infringement on right not to associate), affd mem..

478 F.2d 1407 (8th Cir. 1973), cert. denied, 414 U.S. 135

(1974); Lace v. University of Vt., 131 Vt. 170, 303 A.2d

475. 479 (1973) (same); Cantor, Forced Payments to

Service Institutions and Constitutional Interests in

Ideological Non-Association, 36 Rutgers L. Rev. 3

(1983) (arguing that critical constitutional interest in

9. See Perry Educ. Ass'n. v. Perry Local Educators’ Ass'n. 103 S.

Ct. 948. 955 (1983). Perry suggests that it is permissible to

limit access on educational grounds, id. at 955 n.7. but

Consolidated Edison suggests that it is not permissible to

limit access on “political” grounds.

35a

compelled association or speech cases is government

establishment of particular points of view).

The public forum doctrine accommodates the

various First Amendment interests implicated in the

educational context -- it permits a university to

facilitate an exchange of diverse viewpoints; it provides

students the opportunity to receive the educational

benefits of such an exchange; it allows those students

who want to associate the right to do so effectively; and

it ensures that students who do not want to associate

with a particular point of view are not forced to support

a particular group, but rather an entire forum.

The doctrine has been applied in the educational

context. “The campus of a public university, at least for

students, possesses many of the characteristics of a

public forum.” Widmar v. Vincent, 454 U.S. at 267

n.35 (cited in Galda I, 686 F.2d at 166); cf. Healy v.

James, 408 U.S. at 180 (“The college classroom with

its surrounding environs is peculiarly ‘the marketplace

of ideas.’“) In Widmar, the Court utilized a public

forum analysis in considering whether a religious

group could be allowed to use state university facilities.

The Court noted that the university had created an

open forum for student groups, and that having done

so, it could exclude a group from the forum on the

basis of the religious content of the group's intended

speech only if it showed that “its regulation is

necessary to serve a compelling state interest and that

it is narrowly drawn to achieve that end.” 454 U.S. at

270. Where the university merely allowed religious

groups equal access with other groups, the

Establishment Clause did not amount to a compelling

state interest. See also Bender v. Williamsport Area

School District, 741 F.2d 538 (3d Cir. 1984) (applying

public forum analysis for public high school); cf.

International Society for Krishna Consciousness, Inc.

v. New Jersey Sports & Exposition Authority, 691 F.2d

36a

155, 160 (3d Cir. 1982) (dicta stating that public high

school constitutes a limited public forum).

In this case, as in Widmar, the university has

created an open forum." Any group that meets certain

criteria regarding educational value and student

support is granted access through the neutral funding

mechanism. Student groups receiving less

wide-ranging support are also granted access, through

the mandatory fees program. There is no evidence in

the record, nor any allegation in the complaint, that

either the neutral funding mechanism through which

PIRG is supported, or the university forum as a-whole.

is operated on other than legitimate educational equal

access grounds."' The issue here is whether a political

10. The prima facie standard set out in Galda | is a litmus test.

applicable to the specific facts presented by the Rutgers

funding procedure. for identifying a potentially non-neutral

access policy. The university's stated position h»iJs out

that any group which meets certain objective requirements

showing substantial student support. and which is

considered educational by the University Senate. will be

funded. Under Galda I. if a participant in such a forum is

shown to be “essentially a political action group with only

an incidental educational component.” a prima facie case is

established. because such a showing suggests that the

university is not in fact operating the forum on the

legitimate terms that it has specified.

11. The majority suggests that the democratic aspect of the

neutral funding mechanism -- requiring a showing of

widespread student support prior to access -- violates the

First Amendment. While at some point a majoritarian

requirement that effectively served to silence dissenters

would violate the First Amendment. such a showing has not

been made here. Thus. if the “neutral funding mechanism”

were the only access route to the Rutgers University forum.

the First Amendment might arguably be violated. So long as

the university also provides access to its forum to minority

voices, as it does here through the general activities fee

program. however. it would not appear to violate the First

37a

group may be allowed access to that forum without

violating competing rights of objectors. The competing

interest in Widmar was establishment of religion; the

competing interest in Galda is the objectors’ right not

to have $3.50 temporarily taken from them in violation

of their right not to associate with groups with which

they disagree. In Widmar, the Establishment Clause

was not considered compelling in that particular

setting because where the university had created an

open forum that accommodated religious groups, the

“open forum ... does not confer any imprimatur of

State approval on religious sects or practices” granted

access to the forum. 454 U.S. at 274; see also Bender,

741 F.2d at 561 (Adams, J., dissenting) (advocating

same result ‘n secondary school). Similarly, here, the

Rutgers open forum does not confer any imprimatur of

approval (by the university or by the students paying

fees to the university) upon the ideologies of groups

granted access to the forum. PIRG's participation in

the forum indicates only that, like the school

newspaper, it met the educational and objective

criteria set forth by the university."

The public forum analysis in Widmar and Bender

insists that courts not allow (and, logically, not

require) content-based exclusions from an otherwise

equal access educational forum uniess there is a

Amendment simply to provide greater support through a

separate mechanism to those groups commanding greater

' interest.

12. It might be preferable if the term bill contained a statement

noting that PIRG and the school newspaper are funded as

participants in the university forum because they have

satisfied the requirements of a neutral funding mechanism

open to all applicants. and that no institutional support of

its political viewpoints should be implied. If such a

Statement were added. there would not even be any

superficial differences between the general studer t

activities fees and the neutral funding mechanism fees.

38a

compelling state interest. The question that must

inform the entire analysis, therefore, is whether a

student's right not to have $3.50 temporarily exacted

from him for a forum that supports a group with which

he disagrees is a sufficiently compelling state interest

to justify an exclusion based on tne political content of

the group's intended speech.

This is not to suggest that in all instances the

operation of a bona fide equal access forum should

suffice to defeat objectors’ complaints of compelled

association, but only that in many situations such a

forum best balances the interests of objectors against

the interests of speakers and listeners in a robust

exchange of ideas. It does so, moreover, without

requiring the inhibition of speech. The majority's

result, on the other hand, would effectively inhibit

political speech under the rubric of the First

Amendment. Although we must be careful not to

minimize the complaints of objectors, at the same time

we must not exaggerate those complaints to the

detriment of equally important competing First

Amendment rights. As is so often the case in the First

Amendment field, we are confronted with competing

interests, not absolute rights, I would hold that where

a state university establishes an educational equal

access forum funded by student fees. it does not

impermissibly violate objecting students’ First

Amendment rights by directing their fees to particular

groups, so long as it grants access to the funding

mechanism on educational and equal access grounds.

IV.

The First Amendment clearly does not prohibit

nonpartisan’ political speech or association in state

13. It is important to recognize the difference between

“partisan” and “political” speech. Rutgers does discriminate

39a

universities; indeed, the spirit of the First Amendment

suggests that courts should do everything within

reason to protect political speech in the educational

setting. Healy v. James, 408 U.S. 169; Tinker v. Des

Moines Independent Community School District, 393

U.S. 503. Outlets for effective speech or association on

campus cost money, some of which may and often does

come from students’ tuitions or fees.'* Oftimes a

conflict between speakers and objectors will arise.

Unless a veto is to be granted to all objectors to

“political” speech, we must consider the competing

interests, and seek an appropriate balance. In many

cases, the public forum approach strikes such a

balance. Here, the availability of a refund further

protects the rights of objectors. Only in rare cases

should the balance be struck by excluding political

speech. :

When the federal courts undertake judicial review

of educational decisions of state university officials, it

is critical that the boundaries of that review be

carefully delineated. When the only limit on such

review is a judge's definition of “political,” we may have

against partisan speech. by prohibiting its funding. The

Supreme Court has held that it is constitutionally legitimate

to prohibit support of partisan activities by government

bodies or employees. See United States Civil Service

Comm'n v. National Ass'n of Letter Carriers. 413 U.S. 548

(1973): id. at 557. 561-62 (noting expressiy that restrictions

were limited to partisan political activity. and allowed

employees to participate in all nonpartisan political

activity): see also United Public Workers v. Mitchell. 330

U.S. 75. 100 (1947). Thus, the Democratic and Republican

parties can and will be barred from access to the Rutgers

forum, even though PIRG may not be barred.

14. It has been estimated that approximately 90% of colleges

appropriate money to student groups from mandatory fees

or directly from their budget. D. Meabon. R. Alexander &

T.F. Hunter. Student Activity Fees 20-33 (1979).

40a

overstepped our bounds. And when the result of such

review is the inhibition of speech on the basis of its

political content or motives, the First Amendment has

not been served. Accordingly, I dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

(A.O. U.S. Courts. G.M.C. Printing. Phila.. Pa. 215-568-4264)

4la

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 84-5498

JOSEPH P. GALDA, et al.,

Appellants

v.

RUTGERS, The State University of New Jersey,

et al.

The New Jersey Public Interest

Research Group, Inc.,

Intervenor

(C. A. No. 79-2811)

Argued February 26, 1985

Before: ADAMS, WEIS and WISDOM,>~

Circuit Judges

ORDER AMENDING OPINION

It is ORDERED that the slip opinion filed August

28, 1985 in the above case be and the same hereby is

amended as follows:

Page 21, Para. 2,

Line 18 should now read:

Where the university merely allowed religious

groups equal access with other groups, it did not

* Hon. John Minor Wisdom. United States Court of Appeals for

the Fifth Circuit. sitting by designation.

42a

infringe the Establishment Clause, and the

university's exclusion of religious groups could not

be justified.

Page 37, Line 3

should now read:

interest in Widmar, it was argued, was the

protection of members of the university

community against the establishment of religion:

the

Page 37, Line 8

should now read:

was not deemed to have been infringed in that

particular

BY THE COURT.

/s/ Arlin M. Adams

( Acting Chief Judge

DATED: September 10, 1985

A True Copy:

Teste:

Clerk of the United States Court of Appeals

Sor the Third Circuit

(A.O. U.S. Courts. G.M.C. Printing. Phila.. Pa. 215-568-4264)

43a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 84-5498

~- JOSEPH P. GALDA.

Appellants

Vv.

RUTGERS, THE STATE UNIVERSITY

OF NEW JERSEY, et al.

Appellees

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF NEW JERSEY

(D.C. Civil No. 79-2811)

Present: ADAMS. WEIS and WISDOM,.,*

Circuit Judges.

ORDER AMENDING OPINION

It is ORDERED that page 2 of the slip opinion in

the above captioned case be corrected to read that

Joseph W. Marshall. III, Esquire. argued the case, not

Joseph W. Marshall.

BY THE COURT,

/s/ Joseph F. Weis. Jr.

Circuit Judge

October 11. 1985

* Honorable John Minor Wisdom. Circuit Judge. United States

Court of Appeals for the Fifth Circuit. sitting by designation.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

(A.O. U.S. Courts. G.M.C. Printing. Phila.. Pa. 215-568-4264)

45a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 81-2433

JOSEPH P. GALDA, PAUL EWERT, and CHRISTINA

FARROW, Individually, and upon behalf of all others

similarly situated

VU.

DR. EDWARD J. BLOUSTEIN, Individually, and as

President of Rutgers, The State University, DR. NOR-

MAN REITMAN, individually, and as Chairman of

the Board of Governors of Rutgers, The State Univer-

sity of New Jersey, DONALD S. MCNAUGHTON,

DAVID A. WERBLIN, KATHERINE ELKUS

WHITE, DONALD M. DICKERSON, SANFORD M.

JAFFE, ROBERT KAPLAN. EDWARD KRAMER,

LINDA STAMATO, ROBERT J. TORRICELLI, Indi-

vidually, and as members of the Board of Governors of

Rutgers, The State University of New Jersey, DR. T.

EDWARD HOLLANDER, Individually, and as

Chancellor of Higher Education of the State of New

Jersey, and WALTER K. GORDON, Individually, and

as Dean of Rutgers Camden College of Arts and

Science

INTERVENOR — The New Jersey Public Interest

Research Group, Inc.

Joseph P. Galda, Paul Ewert, and Christina Farrow,

| Appellants

46a

*

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

C.A. No. 79-2811

Argued March 29, 1982

Before: ADAMS, SLOVITER, and BECKER, Circuit Judges

(Filed August 4, 1982) .

MYRNA P. FIELD (Argued)

JOSEPH W. MARSHALL, III

JOHN G. COLLINS

Mid-Atlantic Legal Foundation

Philadelphia, Pennsylvania

Of Counsel:

BRADFORD S. SMITH

Tne Senate Building

Cinnaminson, New Jersey

Attorneys for Appellants

MATTHEW P. BOYLAN

GREGORY B. REILLY (Argued)

Lowenstein, Sandler, Brochin,

Kohl, Fisher & Boylan

Roseland, New Jersey

Attorneys for Appellees

JOHN CARY SIMS (Argued)

ALAN B. MORRISON

Washington, D.C.

Attorneys for Intervenor

47a

OPINION OF THE COURT

ADAMS, Circuit Judge.

Plaintiffs in this action are three former students at

Rutgers Camden College of Arts and Science

(RUCCAS), a unit of Rutgers, the State University of

New Jersey.’ In September 1979, the plaintiffs filed suit

under 42 U.S.C, §1983, alleging that university officers

and administrators had violated the students’ first and

fourteenth amendment rights by extracting from each

student a refundable fee to support the New Jersey Pub-

lic Interest Research Group (PIRG), an independent

political/educational organization.* The district court

held the PIRG funding arrangement constitutional as a

matter of law because it contained a refund mechanism,

and accordingly granted the defendants’ motion for

summary judgment. Galda v. Bloustein, 516 F. Supp.

1142 (D.N.J. 1981). We reverse and remand.

I

New Jersey PIRG is a non-profit, non-partisan cor-

poration engaged in research, lobbying, and advocacy

for social change.* Composed of approximately 21,000

student members at eight New Jersey colleges, includ-

1. The record indicates that all of the plaintiffs were graduated

from Rutgers by May 1982.

2. Defendants concede the presence of state action. See 516 F.

Supp. at 1144 n.1.

3. New Jersey PIRG's Articles of Incorporation state that

The purposes for which this Corporation is organized are:

1. to engage in non-partisan analysis, study and research

of such issues as urban revitalization, consumer protection, re-

source planning, urban and rural occupational safety and labor

conditions, protection of natural areas and environmental qual-

ity, racial and sexual discrimination, landlord-tenant relations,

delivery of health care and similar matters of urgent or

long-range concern to the general welfare of the people of the

State of New Jersey.

“8a

ing RUCCAS,?* PIRG is controlled by a state-wide board

of student represeniatives, which determines PIRG's

programs and policies. Although PIRG has an educa-

tional function — involving students “in real-life learn-

ing experiences [by] exploring the possibilities and

difficulties of legal social change” — all the parties to

this litigation agree that PIRG also functions as a politi-

cal, ideological organization.°

4

NOTE — (Continued)

2. to make available to the public at all times a full and fair

exposition of the pertinent facts and results of such non-parti-

san analysis, study, and research so that ciuzens may form in-

dependent conclusions beneficial to the community.

Appendix at A227.

4. In a referendum held in November 1981, PIRG did not re-

ceive enough votes to permit continued funding at the RUCCAS

campus. See text infra. PIRG funding remains in effect at a number

of other New Jersey colleges, including other Rutgers schools and

campuses.

5. A brochure published by PIRG describes the following rep-

resentative accomplishments:

To serve consumers, PIRG. . .

@ testified before the Board of Public Utilities to oppose Jersey

Cenral Power and Light's request to charge consumers for

$113 million in costs resulting from the Three Mile Island acci-

dent. JCP&i. was granted only a $45 million increase.

@ published a 100 page Directory of Consumer and Social Ser-

vices, which lists all federal, state and private agencies that

handle consumer complaints.

@ lobbied extensively for the federal Middle-income Student

Assistance Act, which became law, making millions of addi-

tional dollars available to low- and middle-income students to

finance their education.

To protect the environment, PIRG. . .

@ has documented water pollution violations by major N.J. in-

dustries such as Gulf and Western, Owens-Corning Fiberglass.

and Republic Wire.

@ lobbied extensively for the law that declared the upper 114

miles of the Delaware River “wild and scenic,” thus preventing

the building of the ecologically threatening Tocks Island Dam.

49a

Because of PIRG's independent status, the organi-

zation is not eligible for student activity funds. In March

1972, however, Rutgers adopted a policy for funding

student-sponsored programs and organizations, such as

PIRG, that otherwise would not qualify for university fi-

nancial support. The policy provides that:

(1) Each organization is required to present its pro-

gram and plans for concept review to the University

Senate for recommendation to the President.

(2) If approved, the organization shall seek college

referenda on the issue of student funding support

for their program. At least fifty per cent of the stu-

dent body of each division of the University shall be

required to participate in such referenda and a ma-

jority of those voting must approve the project in or-

der for implementation within that division. As an

alternate, an affirmative vote of twenty-five per cent

®@ lobbied enunaiealy for the Pinelands Preservation Act of

1979, which became law, establishing an 18-month moratori-

um on construction in the Pine Barrens.

To work for women's rights, PIRG. . .

e lobbied for the extension of the dealdjline for states to ratify

the Equal Rights Amendment, and continues to work for the

passage of the amendment.

To work for safe, clean energy sources, PIRG. . .

@ published A New Jerseyan’s Consumer Guide to Solar Energy

Systems, a 219 page book about buying, building and financ-

ing solar energy systems.

@ drafted legisiation that mandated a study of the co-generation

of electricity for consumers and steam for industry, a process

with the potential to save New Jersevans millions of barrels of

oil and millions of dollars everv year.

@ published a 50 page critical examination of nuclear power.

entitled Everything You Wanted To Know About Nuclear Pow-

er, But Were Afraid To Find Out.

®@ helped establish New Jersey Solar Action. a coalition of con-

cerned ciuzer 24d organizations who promote solar and other

rencewabie c. ~~ » sources in New Jersey.

Appendix at A776.

50a

of the student body plus one shall be adequate to

meet this test.

(3) The organization shall then be listed on the

University term bill with payment of the indicated

fee mandatory. A post-card asking for a refund shall

be included along with the term bill which shall be

sent by the individual student to the organization

and which shall send the refund directly to the

student. -

(4) Each organization so funded shall be expected

to defray the University cost of administration of the

fee collection.

(5) Each organization shall be required every three

years to meet the tests defined under items #1 and

#2 above in order to continue to receive funds un-

der this policy and procedure.

Appendix at A871-72. PIRG first qualified for funding

under the university policy in 1972.

In practice, the PIRG funding system worked as fol-

lows: each semester, matriculating students were pro-

vided with a bill that included a charge of $2.50,° identi-

fied as the PIRG fee. The fee was described as

mandatory, although apparently there were no sanctions

for nonpayment. The bill was accompanied by a flyer de-

scribing PIRG; the back of the flyer contained a “Refund

Request” form, which could be completed by the stu-

dent and submitted to PIRG.’ After receiving a refund

request, PIRG verified that the individual was enrolled at

Rutgers and had paid the fee. PIRG then issued a check

directly to the student, but it took “several months” be-

fore the refunds were actually made.

6. Unul 1978, the PIRG fee was $1.50.

7. As the district court noted, this procedure vanes from that

mandated by the Rutgers funding policy, which specifies that a

“post-card asking for a refund” must accompany the term bill. 516

F Supp. at 1145 n.6. Our analysis of the case does not depend on

the particular means by which the student requests a refund.

Sila

Plaintiffs, who oppose many of the ideological posi-

tions taken by New Jersey PIRG, filed this action on be-

half of themselves and as purported representatives of a

class of all students in good stancing at RUCCAS at any

time between September 1, 1977 and April 1, 1980. Es-

sentially, the plaintiffs allege “[t]hat the disbursement of

funds derived from mandatory student fees to and for

the benefit of [PIRG] has required and shall require the

Plaintiffs herein to support financially views which they

do not advocate” and that such disbursement violates

the plaintiffs’ first and fourteenth amendment rights.

Appendix at A461 (Amended Complaint). Plaintiffs

seek: (1) a declaration that the PIRG funding scheme is

unconstitutional; (2) an injunction against further dis-

bursement of the mandatory PIRG fees; (3) an account-

ing and (4) restitution of sums previously collected.

. On September 16, 1980, the district court denied

plaintiffs’ motion for class certification. Shortly there-

after, the defendants moved for summary judgment.

The district court granted this motion, and the plaintiffs

have appealed. We have jurisdiction pursuant to 28

U.S.C. §1291.

Ii

Initially we must address the question whether this

case is now moot, inasmuch as the three plaintiffs have

been graduated and the PIRG funding scheme was de-

feated in the most recent RUCCAS student referendum.

See notes 1 & 4 supra. In letter briefs filed with the

Court shortly before oral argument, both PIRG and the

plaintiffs asserted that the case is not moot. We agree.

In Finberg v. Sullivan, 658 F.2d 93 (3d Cir. 1980)

(in banc), we held that “[a] case may become moot if (1)

the alleged violation has ceased, and there is no reason-

able expectation that it will recur, and (2) interim relief

or events have ‘completely and irrevocably eradicated

the effects of the alleged violation.’ ” 658 F.2d at 97-98

52a

(footnote omitted) (quoting County of Los Angeles v. Da-

vis, 440 U.S. 625, 631 (1979)). Under this standard, it is

apparent that the present litigation has retained its vital-

ity as a “case or controversy” for Article III purposes.

While the three plaintiffs have been graduated and thus

need not fear any future exactions of the PIRG fee, the

past exactions of the fee have not been remedied and the

relief sought has never been obtained. The fact that the

plaintiffs have never sought a refund of their PIRG fees

from the university does not compel a contrary conclu-

sion; plaintiffs assert — and we agree — that under the

circumstances alleged they constitutionally cannot be

required to shoulder even the modest burden of request-

ing a refund. Aside, then, from plaintiffs’ claim for in-

junctive relief — which, under present circumstances,

has been mooted® — the cause of action thus remains

unaffected by either the suspension of the PIRG fee or

the graduation of the plaintiffs.°

Il]

We turn, then, to the merits of the case before us.

Plaintiffs maintain that the PIRG funding system vio-

lates their right, established in Abood v. Detroit Board of

Education, 431 U.S. 209, 235 (1977), not “to contribute

8. We note that, should the district court conclude on remand

that plainuffs’ motion for class certification should be granted, see

note 16, infra, the presence of current RUCCAS students within

the class arguably may revive the claim for injunctive relief. This

could occur if the University reinstates the PIRG fee or if it is deter-

mined that the exaction of the fee is “capable of repetition, vet evad-

ing review.” See United States Parole Commission v. Geraghty, 445

U.S. 388, 398-99 (1980).

9. See Abood v. Detroit Board of Education, 431 U.S. 209,

216-17 n.9 (1977) (tact that collective bargaining agreement con-

taining agency shop clause had expired did not render case moot.

because some of the plaintiffs had either refused to pay service

charge or had paid it undex protest).

53a

to the support of an ideological cause [they] may oppose

as a condition of {attending the state university].”" The

mere fact that the PIRG fee is refundable does not, ac-

cording to plaintiffs, cure the initial constitutional infir-

mity. Moreover, plaintiffs contend that tne refund

scheme itself is constitutionally deficient because it

forces a dissenter to disclose his or her identity prior to

receiving a refund. Finally, plaintiffs take issue with the

district court’s attempt to balance the free speech rights

of the PIRG majority against the minority’s right to dis-

sent. Because we agree with plaintiffs’ first two argu-

ments — namely, that, at least for summary judgment

purposes, the PIRG fee arrangement as described in the

complaint offends the principles enunciated in Abood,

and that the refundability feature of the funding scheme

does not suffice to remedy the constitutional defect —

we need not reach the other contentions presented by

plaintiffs.

A

Our analysis begins with Abood. In that case, the

Supreme Court considered the validity of a Michigan

statute that permitted unions and local government em-

ployers to enter into “agency shop” arrangements under

which even those employees who were not union mem-

bers were required to pay the union a service fee equal to

union dues. The Court held that such an assessment

was constitutionally permissible only insofar as it was

“used to finance expenditures by the Union for the pur-

poses of collective bargaining, contract administration,

and grievance adjustment.” 431 U.S. at 225-26. Observ-

ing that the first amendment is implicated in such cir-

cumstances — “An employee may very well have ideo-

logical objections to a wide variety of activities

undertaken by the union in its role as exclusive repre-

sentative,” id. at 222 — the Court concluded that any in-

terference with the employees’ associauonal nghts was

S4a

“constitutionally justificd by the legislative assessment

of the important contribution of the union shop to the

system of labor relations established by Congress.” Id. at

222.

The Justices, however, applied a different analysis

to thai portion of the union service fee used for political

or ideological purposes unrelated to collective bargain-

ing. Reasoning that compulsory political contributions

“work[] no less an infringement of [the objecting em-

ployees’] constitutional rights” than do prohibitions

against such contributions, id. at 234; see Buckley v.

Valeo, 424 U.S. 1 (1976), and citing Thomas Jefferson's

Statement that “to compel a man to furnish contribu-

tions of money for the propagation of opinions which he

disbelieves, is sinful and tyrannical,” 431 U.S. at 235

n.31, the Court held that to the extent the service fee

was used for purely political purposes, it could be ex-

tracted only from those employees “who do not object to

advancing those ideas and who are not coerced into do-

ing so against their will by the threat of loss of govern-

mental employment.” Id. at 236.

Implicit in Justice Stewart's opinion in Abyod is the

recognition that, when the government impinges on an

individual’s associational rights — either by prohibiting

or compelling association — such action cannot be sus-

tained unless it is jusufied by a compelling governmen-

tal interest. As the plurality stated in Elrod v. Burns, 427

U.S. 347 (1976) (opinion of Brennan, J.), “{E]ncroach-

ment [upon first amendment rights] ‘cannot be justified

upon a mere showing of a legitimate state interest.’. .

The interest advanced must be paramount, one of vital

importance, and the burden is on the government to

show the existence of such an interest.”!° Id. at 362

10. Justice Powell, concurring in the judgment in Abvod,

maintained that, by requiring the dissenter to step forward and de-

clare his opposition to union activities, the Court had reversed this

traditional first amendment principle. 43] U.S. at 263-64. While

there may be considerable merit to Justice Powell's observation, we

55a

(quoting Kusper v. Pontikes, 414 U.S. 51, 58 (1973)).

See also Buckley v. Valeo, 424 U.S. 1, 44 (1976) (“[T]he

constitutionality of [the statute] turns on whether the

governmental interests advanced in its support satisfy

the exacting scrutiny applicable to limitations on core

First Amendment rights of political expression”). In

Abood itself, the national interest in labor peace, fostered

by the collective bargaining process, was deemed suffi-

ciently compelling to justify some intrusion on the em-

ployees’ rights to associate. Extraneous activity in the

political sphere, however, could not be so justified; thus,

any political expenditures “not germane to [the union's]

duties as collective-bargaining representative” could not

be financed from fees paid by those who affirmatively

objected to the union's ideological viewpoint. 431 U.S. at

235.

In the case at hand, the district court found it un-

necessary toeexamine in any detail the university's prof-

fered justification for its assessment of the mandatory

PIRG fee. Rather, the court determined that the

refundability feature of the financing arrangement was

adequate to cure any constitutional defect that might

otherwise exist. Because we conclude that the refund

provision is not adequate in this regard, see infra, we are

obliged to examine more closely the constitutional

underpinnings of the PIRG funding scheme.

The university insists that, even without the refund

mechanism, the mandatory fee at issue here is constitu-

tionally justified because PIRG “makes a legislatively

recognized educational contribution to the University

and its students.” Brief for Appellees at 24. We do not

dispute the assertion that PIRG may enhance the educa-

tion of some Rutgers students. Nonetheless, for pur-

poses of the summary judgment motion here, we must

do not read the Abood majority opinion as requiring any less than an

initial showing, by the government, of the compelling reason why it

has chosen to exact the compulsory fee in the first place.

56a

assume that at least one of PIRG’s functions is purely po-

litical, and noneducational, in nature. Indeed, plaintiffs

allege that “(PIRG] is an organization founded for the

primary purpose of advocating specific ideological and

political positions before the Congress of the United

States, the legislature of New Jersey, and the citizens of

the state.” Appendix at A991. While the district court

stated that.“PIRG is, in large measure, a student organi-

zation and . . . performs legitimate educational func-

tions,” 516 F. Supp. at 1147, it concluded, correctly, that

“at least for purposes of the [summary judgment] mo-

tion, we must conclude that not all of PIRG'’s activities

are truly educational or adequately linked to the Univer-

sity to survive the Abood standard.” Id. at 1148.!!

In holding, as we do, that — at least on the record

before us — there is a genuine issue of material fact as to

whether the exaction of the PIRG fee infringes upon the

constitutional rights of plaintiffs, we do not mean to im-

ply that all mandatory student fees can be invalidated on

first amendment grounds. Indeed, a number of courts

have held that a university’s use of a mandatory (and

nonrefundable) student fee to support politically active

student organizations does not violate the first amend-

ment. See e.g., Arrington v. Taylor, 380 F. Supp. 1348

(M.D.N.C. 1974), affd mem., 526 F.2d 587 (4th Cir.

1975), cert. denied, 424 U.S. 913 (1976); Veed uv.

Schwartzkopf, 353 F. Supp. 149 (D. Neb.), affd mem.

478 F.2d 1407 (8th Cir. 1973), cert. denied, 414 U-S.

1135 (1974). Admittedly, these cases antedate Abood,

and thus their analysis may be challenged. That aside,

however, we note that significant differences exist be-

11. The district court also found that “PIRG has two basic

goals. One is to effect social and political change in the areas of its

concern. PIRG’s second goal is to involve university students in

public affairs so as to broaden their educational experiences and

help develop a more sophisticated and active electorate.” 516 F.

Supp. at 1146.

57a

tween those situations in which mandatory student fees

were upheld, and the case presently betore this Court.

In Arrington, for instance, the plaintiffs, students at

the University of North Carolina, complained that their

first amendment rights had been abridged because they

were required to pay a “Student Activities Fee,” a portion

of which was used to support the university's daily news-

paper. Plaintiffs disagreed with many of the editorial po-

sitions taken by the paper. The court found that the

newspaper provided “a forum whereby differing views

on controversial subjects are presented” and that “its

most important function is to complement classroom

education by exposing the student body to various points

of view on significant issues.” 380 F. Supp. at 1362-63.

The paper “does not speak on behalf of a group with

which the plaintiffs are identified... . There is no

group, and plaintiffs have available an additional forum

to express themselves in opposition to views set forth

therein.” Id. at 1362.

The Arrington court relied upon the reasoning em-

ployed in a similar case, Veed v. Schwartzkopf, supra.

There, the court held that the use of mandatory student

fees to subsidize the school newspaper, a student gov-

ernment association, and a guest speaker program, did

not violate the first amendment. Stressing the judicial

deference traditionally accorded university officials

charged with the responsibility of devising educational

programs, Healy v. James, 408 U.S. 169, 180 (1972);

Tinker v. Des Moines Independent Community School

District, 393 U.S. 503, 506 (1969), the court concluded

that sponsoring programs that provide a forum for the

expression of “widely divergent opinions on a number of

topics” was well within the discreticn of the university

Board of Regents. That body “obviously has embraced

an educational philosophy that the education of students

extends bevond that which takes place in the classroom

under the tutelage of instructors and professors.” 353 F.

Supp. at 152.

58a

In contrast with the programs upheid in Veed and

Arrington, PIRG does not provide a “forum” for the ex-

pression of differing views. Rather, PIRG’s political

stance is determined by its student Board of Directors,

and students working for PIRG are foreclosed from sup-

porting contrary positions unless such support is

“okayed by the state board.” Deposition of Edward

Lloyd, Executive Director of New Jersey PIRG, Appen-

dix at A621.!2 More important, PIRG — unlike the

school newspaper under consideration in Arrington — is

a “group”; the students who pay the PIRG fee are re-

ferred to in PIRG’s literature as “constituents,” Appen-

dix at A699, and “members,” Appendix at A754, A756.

We note here that PIRG’s ineligibility for student activity

funds — precisely because of its independent status —

distinguishes PIRG from the other groups on campus,

which are funded by a standard “student activity fee.”

This fee, a lump sum used to subsidize a variety of stu-

dent groups, can be perceived broadly as providing a “fo-

rum” for a diverse range of opinion. The PIRG fee, in

contrast, was segregated from the other charges listed

on the students’ term bills, and provides support for only

one organization.

To be sure, one by-product of PIRG is the education

of its participants. But that end might also have been se-

cured if the student-participants had worked for a politi-

cal action group totally unconnected with RUCCAS, and

yet it could not be seriously contended that student fees

could be funneled to such a group. Put simply, the edu-

cational component of PIRG cannot serve to obscure the

12. See also Appendix at A310 (deposition of plaintiff Joseph P.

Galda):

Q: Have you ever submitted a project proposal to vour lo-

cal board or to the State board or to any staff members of PIRG?

A: I asked at the State headquarters one of the staff people

if they would take a project by a pro-life group, and they said

given the organization's feelings about abortion, they would

not.

59a

underlying substance of plaintiffs’ complaint: that all

RUCCAS students were obliged to finance what alleged-

ly amounted not to a “classroom” to foster the effective

presentation of the students’ views, but rather to fund a

political entity devoted to the attainment of certain fixed

ideological objectives.

Although many student-related groups have ideo-

logical overtones, to the extent that the university deter-

mines that an organization is an appropriate participant

in the total university forum, considerable deference

should be accorded that judgment. This deference

stems from the long-standing recognition that the uni-

versity as a whole functions as a forum for the exchange

of diverse views. As the Supreme Court has observed,

“lt}he college classroom with its surrounding environs is

peculiarly ‘the marketplace of ideas.’ Healy v. James,

408 U.S. 169, 180 (1972); Widmar v. Vincent, 102 S. Ct.

269, 273 n.5 (1981).'* The holdings in Veed and

Arrington thus correctly indicate that the university has

vroad latitude in providing an opportunity for students to

participate in — and to oppose — the expression of a

broad spectrum of ideology.

To overcome the presumptive validity of the univer-

sity’s judgment that an organization contributes to the

university Community, and to make out a prima facie

case that exaction of the fee conflicts with the mandates

of the first amendment, persons objecting to the fee.

must establish that the challenged group functions es-

sentially as a political action group with only an inciden-

tal educational component. At that point the burden of

13. See also Good v. Associated Students of the University of

Washington, 8G Wash. 2d 94, 542 P.2d 762, 769 (1975) (“The cases

which the university relies upon to sustain mandatory student fees

recognize the delicate balance between the nights of the dissenters

who must finance controversial programs and the desirability of the

university providing a forum for wide-ranging ideas. Yet these cases

are premised on the proposition that there must be in fact a spec-

trum presented, not a single track philosophy.”).

60a

producing evidence to counter the plaintiffs’ showing or

to otherwise demonstrate a compelling state interest

shifts to the university. We do not rule out the possibility

that, even in the face of an unrebutted prima facie show-

ing, the university might demonstrate a compelling state

interest by establishing the importance of the chal-

lenged group's contribution to the university forum.

In the present situation we must order a remand be-

cause the district judge did not have an opportunity to

evaluate the plaintiffs’ showing against the standards we

have enunciated nor did the university have the opportu-

nity to counter the plaintiffs’ showing or otherwise set

forth a compelling state interest.'? And because differ-

ing inferences can be drawn from the existing record,

there exists a genuine issue of materia! fact on the ques-

tion whether the exaction of the PIRG fee infringes upon

the first amendment rights of the plaintiffs. Given our

conclusion in this regard, it is also necessary to consider

whether PIRG’s refund mechanism “cures” whatever

infirmity might exist as the result of the compulsory

exaction.

B

On appeal, plaintiffs argue that, under Abood, a re-

fund arrangement does not suffice to remedy a constitu-

tionally defective funding scheme; it simply serves to

create “a perpetual system of violations and possible re-

payments, paid in again, establishing new violations.”

Brief for Appellants at 15-16.

14. The funding mechanism for PIRG differs from the funding

of groups supported in part by the general student activity fee which

are more directly under the university's umbrella. We need not de-

cide the significance of the difference in funding ‘mechanism, at

least in first amendment terms. it may be, however, that an explora-

tion of university funding policy will demonstrate that funding by

the standard university student acuvity fee justifies greater insula-

tion from scrutiny.

~*~,

—

6la

Abood explicitly refrained trom addressing the ques-

tion whether a refund mechanism is sufficient to render

constitutional a fee-collection arrangement such as the

one at issue here. '> Stating that, in fashioning a remedy.

“the objective must be to devise a way of preventing

compulsory subsidization of ideological activity by em-

ployees who object: thereto without restricting the

Union's ability to require every employee to contribute to

the cost of collective-bargaining activities,” 431 U.S. at

237, the Court pointed with approval to the remedies dis-

cussed in two prior cases, International Association of

Machinists v. Street, 367 U.S.740 (1961), and Brother-

hood of Railway Clerks v. Allen, 373 U.S. 113 (1963). In

Street, which established that “only employees who

have affirmatively made known to the union their oppo-

sition to political uses of their funds are entitled to re-

lief,” 431 U.S. at 238, the Court outlined two possible

remedies:

first, “an injunction against expenditure for political

causes opposed by each complaining employee of a

sum, from those moneys to be spent by the union

for political purposes, which is so much of the mon-

eys exacted from him as is. the proportion of the

union's total expenditures made for such political

15. In Abood, the union had adopted an internal union remedy

subsequent to the onset of litigation. The plan, which provided that

a dissenting employee may protest at the beginning of each school

vear the expenditure of any part of his agency-shop fee for political

purposes, and then receive a pro rata refund, was not scrutinized by

the court for constitutional infirmity:

We express no view as to the constituuonal sufficiency of the

internal remedy described by the appellees. If the appellants

initially resort to that remedy and ultimately conclude that it is

constituuonally deficient in some respect, they would of course

be entitled to judicial considerauon of the adequacy of the

remedy.

431 U.S. at 242 n.45.

62a

activities to the union's total budget”; and second.

restitution of a fraction of unio: dues paid equal to

the fraction of total union exsenditures that were

made for political purposes opposed by the employ-

ee.

Id. (quoting Street, 367 U.S. at 774-75). Allen, in con-

trast, intimated strongly that while a refund could cure

past improper exactions of a fee, future exactions should

be reduced, pro rata, prior to collection. There, the Court

described a “practical decree” that could properly be en-

tered, providing for: (1) the refund of a portion of the ex-

acted funds in the proportion that union political expen-

ditures bear to total union expenditures, and (2) the

reduction of future exactions by the same preportion.

Abood, then, provides somewhat ine: clusive au-

thority in support of plaintiffs’ position. Justice Stevens

appears to have recognized as much; he concurred in

the opinion of the Court but stressed that a refund very

well might not be adequate: “the Court's opinion does

not foreclose the argument that the Union should not be

permitted to exact a service fee from nonmembers with-

out first establishing a procedure which will avoid the

risk that their funds will be used, even temporarily, to

finance ideological activities unrelated to collective bar-

gaining.” 431 U.S. at 244 (emphasis added).

A number of courts and commentators appear to

agree with the observations by Justice Stevens that a

funding system requiring continual payments and sub-

sequent refunds to dissenters may not satisfy the re-

quirements of the first amendment. In KEPAC v. Ken-

tucky Registry of Election Finance, 110 L.R.R.M. 2398

(6th Cir. May 13, 1982), for example, the court approved

a “reverse check-olf” system in which employees, mem-

bers of the Kentucky Education Association (KEA). had

contributions to KEPAC, the political arm of KEA. de-

ducted from their paychecks unless they affirmatively

“checked off” that they declined to support KEPAC. If

63a

an employee failed to check off, but subsequently decid-

ed not to participate in KEPAC, he could stop future de-

ductions and receive a refund of past contributions. The

fact that the employees could “check off" and thereby

refuse to make donations to KEPAC in the first place

was one factor that persuaded the court that the KEPAC

funding scheme did not violate the rights of the dissent-

ing members. 110 L.R.R.M. at 2404-05.

The KEPAC court compared the scheme at issue be-

fore it to that invalidated on statutory grounds in Federal

Election Commission v. National Education Association

(NEA), 457 F. Supp. 1102 (D.D.C. 1978), in which a

$1.00 annual political contribution was automatically

deducted from each NEA member's paycheck; if the

member did not wish to contribute, he was required te

“submit a separate written request for a refund rather

than being able to disallow its deduction in the first

place.” Jd. at 1103-04. This system, declared the District

Court, placed an undue burden on the dissenting em-

ployees. Unlike Abood — in which “it was reasonable to

put the burden on the dissenter to come forward” be-

cause the fee at issue was a lump sum payment used to

cover both collective bargaining and political activities

— in NEA, the $1.00 political payment was segregated

from dues, and thus “there is no comparable justifica-

tion for placing the burden on the dissenter.” /d. at 1107

(footnote omitted). '®

16. Cf. The Supreme Court, 1976 Term, 91 Harv. L. Rev. 1,

198 (1977) (commentary on Abood) (footnotes omitted) (emphasis

in original).

The method proposed by the majonty for preventing impermis-

sible infringements of individuals’ nghts is fair to both the

union and the employees. Since a dissenter need merely mani-

fest his objection to nonbargaining expenditures of any kind,

he is required to object only once in order to preserve his associ-

ational nights. He thus does not have to monitor every expendi-

ture made during any given period, and need not express

against his will his position on any particular cause that the

1

;

64a

We need not decide today whether, in a situation

identical to that in Abood, a refund mechanism would be

sufficient to cure an otherwise unconstitutional fee as-

sessment. For, like the $1.00 fee invalidated in NEA, the

fee collection arrangement at issue here would appear to

provide little justification for a refund procedure (as op-

posed to permitting.dissenters to withhold payment from

the start) than did the scheme in Abood. In that case, at

least a portion of the compulsory union dues could be

justified “by the legislative assessment of the important

contribution of the union shop to the system of labor re-

lations established by Congress.” 431 U.S. at 222. Thus,

it might be argued that a refund was the only adminis-

tratively practicable method by which the dissenter’s

rights in Abood could be recognized. Here, however, for

purposes of summary judgment, we are required to as-

sume that no compelling governmental interest can be

shown that justifies the assessment of any portion of the

PIRG fee.” In the absence of such a demonstrated inter-

NOTE —(Continued)

union advocates. In order to efiectuate fully the goals

underlying Abood, a court also should require the union to pre-

pare a schedule of estimated yearly disbursements before col-,

lecting fees from nonunion members in the future and to make)

this schedule available tor inspection by ali emplovees. Such a

requirement will allow disputes concerning the permissibility

of any given expenditure to be resolved before an emplovee has

parted with his money but will not impose any undue hardship

upon the union. There will thus be more assurance that inertia

will not persuade a dissenter to relinquish his constitutionally

protected right to freedom of association.

17. The dissenters object to the entire fee; and under the Uni-

versity’s refund system, the entire fee would have been returned to

the dissenter upon request. We have been presented with no con-

vincing reason — besides the obvious motive to procure additional

funding from those students who do not wish to join PIRG but who

are indifferent enough to forego seeking a refund — why PIRG

could not obtain its financial support through purely voluntary con-

tribuuons. In this regard, we perceive no constituuonilly significant

65a

est, a fee used to finance political activity cannot be ex-

acted — even temporarily — from those unwilling to

pay.'®

IV

We hold, therefore, that the plaintiffs’ allegations

state a claim for relief under the first and fourteenth

amendments. The judgment of the distict court grant-

ing summary judgment for the defey:dants will be re-

versed and the case remanded for pruceedings consist-

ent with this opinion.'®

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

distinction between a “check-off’ system, in which the student

states that he or she wishes to support PIRG, and a “reverse

cleck-off” system, in which the student states that he or she de-

clines to support PIRG.

18. The district court concluded that any constitutional

difficulties arising from the PIRG assessment were “redeemed” by

Rutger’s “adequate” refund arrangement. Apparently, a requested

refund was not forthcoming until the end of the semester in which

the fee was paid; as a result, the fees collected in the fall semester

allegedly were not returned until after the fees had been paid for the

spring term. Thus, according to the plaintiffs, PIRG had the use of

every student's money for virtually the entire school year. While this

contention may have considerable merit, we of course need not con-

sider it, given that we have concluded that even a temporary exac-

tion of the PIRG fee from Rutgers’ students cannot be justified on

the present record.

19. On remand the district court may wish to reconsider plain-

tuts’ motion to compel discovery, as well as the district court's order

denying plaintiffs motion for class certification See Herbert B.

Newberg, Class Actions, Ch. 3, §1120h (1977).

|

67a

RECEIVED AND FILED

8-28-85

SALLY MRVOS

Clerk

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 84-5498

JOSEPH P. GALDA, PAUL EWERT, KRISTINA FARROW

CYPEL, THOMAS H. ODOM, JOSEPH RANDALL COR-

MAN, LORI KEELEY, LESLIE BEEBE, LEONARD SCOTT

KELTER, EDWARD D. WICKHAM, and CHRISTOPHER

LEPRE, Individually, and upon behalf of all others similarly

situated,

Appellants

V.

RUTGERS, The State University of New Jersey, DR. EDWARD

J. BLOUSTEIN, Individually, and as President of Rutgers, The

State University of New Jersey, DR. NORMAN REITMAN, In-

dividually, and as Chairman of the Board of Governors of

Rutgers, The State University of New Jersey, DONALD S. MAC-

NAUGHTON, DAVID A. WERBLIN, KATHERINE ELKUS

WHITE, DONALD M. DICKERSON, SANFORD M. JAFFE,

ROBERT KAPLAN, EDWARD KRAMER, LINDA

STAMATO, ROBERT J. TORRICELLI, MARY WHITE BELL,

as members of the Board of Governors of Rutgers, The State

University of New Jersey, and WALTER K. GORDON, In-

dividually and as Dean of Rutgers Camden College of Arts and

Sciences

The New Jersey Puolic Interest Research Group, Inc.,

Intervenor

68a

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(D.C. Civil No. 79-2811)

Before: ADAMS, WEIS, and WISDOM,* Circuit Judges

JUDGMENT

This cause came on to be heard on the record from the United

States District Court for the District of New Jersey and was

argued by counsel February 26, 1985.

On consideration whereof, it is now here ordered and adjudged

by this Court that the judgment of the said District Court entered

June 20, 1984, be, and the same is hereby vacated and the cause

remanded to the said District Court for entry of an order enjoin-

ing mandatory assessment of the mandatory fee payable to PIRG.

ATTEST:

/s/ Sally Mrvos

Clerk

August 28, 1985

* The Honorable John Minor Wisdom, Circuit Judge, United

States Court of Appeals for the Fifth Circuit, sitting by designation.

69a

UNITED STATES COURT JF APPEALS

FOR THE THIRD CIRCUIT

[Entered:

October 11, 1985]

No. 84-5498

JOSEPH P. GALDA, et al.

Appellants

Vv.

RUTGERS, THE STATE UNIVERSITY

OF NEW JERSEY, et al.,

Appellees

NEW JERSEY PUBLIC INTEREST

RESEARCH GROUP, INC.,

Intervenor-Appellees

(D.C. Civil No. 79-2811)

SUR PETITION FOR REHEARING

Present! HUNTER, WEIS, HIGGINBOTHAM, SLOVITER,

STAPLETON, MANSMANN, and WISDOM*, Circuit Judges.

The petition for rehearing filed by appellees and intervenor-

appellees in the above entitled case having been submitted to the

judges who participated in the decision of this court and to all the

other available circuit judges of the circuit in regular active

service, and no judge who concurred in the decision having asked

for rehearing, and a majority of the circuit judges of the circuit in

regular active service not having voted for rehearing by the court

in banc, the petition for rehearing is denied.

Judges Adams and Becker would grant rehearing.

* Honorable John Minor Wisdom, Circuit Judge. United States

Court of Appeals for the Fifth Circuit, sitting by designation.

70a

Chief Judge Aldisert and Judges Seitz, Gibbons and Garth did

not participate in the consideration of this matter.

BY THE COURT,

/s/Weis

Circuit Judge

DATED: October 11, 1985

iii ers

Tila

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

4

JOSEPH P. GALDA, et al., : Civil Action No. 79-2811

Plaintiffs, :

Vv.

RUTGERS, THE STATE . ORIGINAL FILED

UNIVERSITY OF NEW JERSEY, : JUN 20, 1984

et al., ; ALLYN Z. LITE, CLERK

Defendants, :

NEW JERSEY PUBLIC

INTEREST RESEARCH : FINDINGS OF FACT

GROUP, INC., : AND

Defendant-Intervenor. : CONCLUSIONS OF LAW

APPEARANCES:

Bradford S. Smith, Esquire

Senate Office Building

909-11 U.S. Highway 130

Cinnaminson, New Jersey 08077

and

Myrna P. Field, Esquire

Joseph W. Marshall, III, Esquire

Mid-Atlantic Legal Foundation

400 Market Street—3rd Floor

Philadelphia, Pennsylvania 19106

Attorneys for Joseph P. Galda, Paul Ewert,

Kristina Farrow Cypel, Thomas H. Odom,

Joseph Randall Corman, Lori Keeley, Leslie Beebe,

Leonard Scott Kelter, Edward D. Wickham and

Christopher Lepre

72a

Gregory B. Reilly, Esquire

Lowenstein, Sandler, Brochin, Kohl, Fisher,

Boylan & Meanor

65 Livingston Avenue

Roseland, New Jersey 07608

Attorneys for Defendants Rutgers, The State University of

New Jersey, Dr. Edward J. Bloustein, Individually, and as

President of Rutgers, The State University, Dr. Norman

Reitman, Individually, and as Chairman of the Board of

Governors of Rutgers, The State University, Donald S.

McNaughton, David A. Werblin, Katherine Elkus White,

Donald M. Dickerson, Sanford M. Jaffe, Robert Kaplan,

Edward Kramer, Linda Stamato, Robert J. Torricelli,

Mary White Bell, as members of the Board of Governors

of Rutgers, The State University of New Jersey, and

Walter K. Gordon, Individually and as Dean of Rutgers

Camden College of Arts and Sciences

James Lanard, Esquire

204 West State Street

Trenton, New Jersey 08608

and

John Cary Sims, Esquire

David C. Vladeck, Esquire

Suite 700

2000 P Street, N.W.

Washington, D.C. 20036

Attorneys for Defendant-Intervenor New Jersey Public

Interest Research Group, Inc.

—

73a

BROTMAN, District Judge

This action is brought by nine students at Rutgers, The State

University of New Jersey (“Rutgers”), challenging the constitu-

tionality of the current funding system at Rutgers of the New

Jersey Public Interest Research Group, Inc. (“PIRG”). Plaintiffs

aliege that their First and Fourteenth Amendment rights are

violated by the exaction of a refundable fee by the University to

support PIRG. After conducting an extensive nonjury trial the

court finds that plaintiffs have failed to rebut the presumptive

validity of the University’s judgment that PIRG contributes

educationally to the university community. The court therefore

finds that plaintiffs have failed to make out a prima facie case

that the exaction of the fee conflicts with the mandates of the

First Amendment.

BACKGROUND

This action was originally instituted in September 1979 by

three students enrolled at Rutgers Camden College of Arts and

Sciences. The plaintiffs filed suit against Rutgers under 42 U.S.C.

§ 1983, alleging that university officers and administrators were

violating plaintiffs’ rights under the First Amendment! by exact-

ing with each semester’s bill a refundable fee to support PIRG, a

non-profit, non-partisan, student-run corporation engaged in

research, lobbying and advocacy for social change.

In 1981, this court granted defendants’ motion for summary

judgment. Galda v. Bloustein, 516 F.Supp. 1142 (D.N.J.1981). It

found, inter alia, that the presence of a refund procedure for

students not wishing to support PIRG preserved the constitutionali-

ty of the funding policy. The plaintiffs appealed this decision.

On appeal, the Third Circuit Court of Appeals reversed this

court’s grant of summary judgment and remanded the case for a

' The First Amendment is applicable to state action by way of its incorporation

through the Fourteenth Amendment. See Gitlow v. New York, 268 U.S. 652, 45 S.Ct.

625, 69 L.Ed. 1138 (1925). For ease of discussion, the court will refer to the First

Amendment in this opinion with the understanding that it is applicable only through its

incorporation into the Fourteenth Amendment.

74a

trial. Galda v, Bloustein, 686 F.2d 159 (3rd Cir.1982). The Third

Circuit reasoned that on the record before it there existed a genu-

ine issue of material fact as to whether the exaction of the PIRG

fee infringed upon the plaintiffs’ constitutional rights. 686 F.2d at

165. The court initially noted that Rutgers had determined that

PIRG was educationally valuable and stressed that “considerable

deference” must be accorded to the University’s determination

that “an organization [such as PIRG] is an appropriate partici-

pant in the total university forum.” /d. at 166. The circuit court

held, however, that the University’s judgment about the educa-

tional value of PIRG to the university community was not ab-

solutely immune from judicial scrutiny. The court ruled that a

more complete factual record was needed as to the nature of

PIRG and its contribution to the university forum and outlined

the following test:

To overcome the presumptive validity of the university's

judgment that an organization contributes to the university

community, and to make out a prima facie case that exac-

tion of the fee conflicts with the mandates of the first

amendment, persons objecting to the fee must establish that

the challenged group functions essentially as a political ac-

tion group with only an incidental educational component.

* The court went on to state that

This deference stems from the long-standing recognition that the university as a

whole functions as a forum for the exchange of diverse views. As the Supreme

Court observed, “[T}he college classroom with its surrounding environs is

peculiarly the ‘marketplace of ideas’ Healy v. James, 408 U.S. 169, 180, 92

S.Ct. 2338, 2346, 33 L.Ed.2d 266 (1972); Widmar v. Vincent, 454 U.S. 263, 102

S.Ct. 269, 273 n. 5, 70 L.Bd.2d 440 (1981). The holdings in [Veed v. Schwartz-

kopf, 353 F.Supp. 149 (D.Neb.), aff'd mem., 478 F.2d 1407 (8th Circ.1 973),

cert. denied, 414 U.S. 1135, 94 S.Ct. 878, 38 L.Ed.2d 760 (1974)] and

[Arrington v. Taylor, 380 F.Supp. 1348 (M.D. N.C.1974), aff'd mem., 526 F.2d

587 (4th Cir. 1975) cert. denied, 424 U.S. 913, 96 S.Ct. 1111, 47 L.Bd.2d 317

(1976)] thus correctly indicate that the university has broad latitude in providing

an opportunity for students to participate in—and to oppose—expression of a

broad spectrum of ideology.

Galda, supra, 686 F.2d at 166 (footnote omitted). Accord, Kania v. Fordham, 702 F.2d

475 (4th Cir.1983) (courts should defer to the academic judgments of university ad-

ministrators).

75a

At that point the burden of producing evidence to counter

the plaintiff's showing or to otherwise demonstrate a com-

pelling state interest shifts to the university. We do not rule

out the possibility that, even in the face of an unrebutted

prima facie showing, the university might demonstrate a

compelling state interest by establishing the importance of

the challenged groups contribution to the university forum.

Id. at 166-67.3 The circuit court ordered a remand because this

court “did not have an opportunity to evaluate the plaintiffs’

showing against the standards we have enunciated nor did the

university have the opportunity to counter the plaintiffs’ showing

or otherwise set forth a compelling state interest.” /d. at 167.

Pursuant to the mandate on remand, this court conducted a

ten-day trial at which past and present members of the Rutgers

community appeared and testified about PIRG and its contribu-

tions to Rutgers. Dr. Edward Bloustein, President of Rutgers,

testified at length about the creating of the funding mechanism of

PIRG and his view of PIRG’s contribution to the university com-

munity. Eminent experts in political science, education and

university administration appeared and testified about PIRG at

Rutgers and about the PIRGs at other institutions of higher learn-

ing around the country.

The court's findings focus on the creation and nature of the

current funding mechanism for PIRG at Rutgers; the organiza-

tional structure of PIRG; the scope of PIRG’s activities; the ex-

periences of Rutgers faculty and students with PIRG; and the

opinions of experts about the educational value of PIRG and its

contribution to the university community. The court does nor at-

tempt to restate all of the information presented at trial, but in-

stead focuses on the framework discussed above to reach a

reasoned conclusion as to whether piaintiffs’ constitutional rights

have been violated by defendants’ actions.

’ The court also ruled that a refund to dissenters would not in itself preserve the con-

stitutionality of the funding mechanism if the initial payment of the fee violated plain- |

tiffs’ constitutional rights. Galda, supra, 686 F.2d at 167-69.

—————

76a |

FINDINGS OF FACT

A. The Parties

1. The plaintiffs in this action are nine individual students at

the various constituent campuses at Rutgers, the State University

of New Jersey. The p’ ve stipulated that each plaintiff

finds positions taken t. . Objectionabie* (Joint Stipulation

(“Stipulation”) 3). Each plaintiff paid the refundable PIRG fee

for one or more semesters during which he or she was a student at

Rutgers (Stipulation 2).

2. This suit was filed naming as defendants officers and ad-

ministrators of Rutgers. For purposes of this action only, the par-

ties have agreed that action taken by Rutgers is state action

(Stipulation 5). Shortly after the lawsuit was filed, PIRG in-

tervened as a defendant and has since then actively participated

as a party in this case.

B. The Creation of the Special Funding System at Rut jers

3. The overwhelming majority of student organizations at

Rutgers are funded through a mandatory, non-refundable student

activities fee assessed against students each semester (Joint Ex-

hibit (“Exhibit”) 379; (Tr. VI, 30-33)). The apportionment of

this student activities fee for student organizations is determined

by a relatively small group of students on a student fee board (Tr.

VI, 46). Students in general have no opportunity to vote on the

specific apportionment of this mandatory fee among student

groups at Rutgers (Tr. VI, 45-47).

4. Many of the student organizations funded through the man-

datory, non-refundable student activities fee take positions on

political and social issues (Tr. VI, 32-33). Such groups include

the American Civil Liberties Union, the Jewish Awareness Club,

the National Association for the Advancement of Colored People

and the Gay Alliance, an organization which advocates the rights

* The court notes, however, that only two of the seven plaintiffs who appeared and

testified at tnal named positions taken by PIRG with which they disagroed (Tr. 1, 82,

122). One of the other five plaintiffs who appeared quite candidly testified that she

became a plaintiff in this action at the request of plaintiff Joseph Galda and does not

know any positions taken by PIRG (Tr. I, 86-87).

77a

of homosexuals (Tr. I, 48; Tr. V, 70-72; Tr. VI, 33-35; Exhibit

379). Also funded through the non-refundable student activities

fee is the Rutgers University Legislative Action Committee

(“RULAC”), a group which takes positions on issues of social

importance and lobbies to further its positions before legislators

in Trenton, New Jersey and Washington, D.C. (Tr. VI, 69-71).

Rutgers further allows student groups such as the College

Republicans to use the facilities of the University (Tr. 1, 148-49).

5. Dr. Edward Bloustein, the President of Rutgers and an ex-

pert in college level waucation and university administration,

strongly supports the presence of these groups of the campuses of

Rutgers because they create the “widest possible forum for the in-

terchange of views in the University community” (Tr. VI, 37).°

6. In 1971 a group of students approached Dr. Bloustein and

asked him to create a new funding mechanism to support a public

interest research group (a “PIRG”) at Rutgers (Tr. VI, 17; Ex-

hidits 6, 169, 170). The students had collected thousands of

signatures on petitions in support of their proposal (Tr. VI,

116-25). Under the students’ proposal, the University would

assess a refundable fee of $1.50 to support the proposed PIRG

with each semester's tuition bill (Exhibit 6). The PIRG proposed

by the students was ineligible for funding from the general stu-

dent activities fee because it was to be a student-run corporation

independent of the University (Tr. VI, 88).

7. Under the students’ proposal, PIRG was to be a non-

partisan, non-profit corporation which would research and lobby

for social change (Exhibit 6). Similar proposals for PIRGs were

introduced in the early 1970s in other universities around the

country (Tr. VI, 174 (University of Minnesota); Tr. VII, 89-93

* Dr. Bloustein further testified as follows:

| know of no university which doesn't have such a system of clubs and activities

and | know of none of my colleagues, and I meet them regularly, who would not

say that this is a very strong adjunct of the success of any university. Indeed, |

have been a student at [at] least four universities in my time, from Oxford

University to Cornell to N.Y.U. I've taught in one or two others. In every one

| have been near, student activities of this sort are considered valuable to the

edu. .onal expenence.

(Tr. VI, 37).

ieee iit iia eee

78a

(University of Massachusetts); Tr. X, 86 (Queens College); Tr. X,

94 (Bennington College)).

8. PIRGs were initially welcomed by university administra-

tors among other reasons because they were a vehicle for students

to develop and further their political and social beliefs in a social-

ly acceptable manner (Tr. VI, 23; Tr. VII, 92-93; Tr. X, 89).

PIRGs developed nationally shortly after the height of student

unrest stemming from American involvement in the Vietnam

war (Tr. VII. 92-93). The proposed structure of PIRGs was sug-

gested by Ralph Nader and Donald Ross in their book “Action

For a Change,” published in 1972 (Exhibit 165; Tr. ‘V!, 22-23).

9. As noted above (Finding No. 6), the students’ proposal to

Dr. Bloustein was for a specialized funding procedure which

would be unique for PIRG (see Exhibits 6, 169). The Rutgers ad-

ministration rejected the students’ proposal, reasoning (a) that the

University administration did not directly authorize funds for any

specific activity (Tr. VI, 18); and (b) because it believed that a

broad and neutral funding policy for groups outside the man-

datory student activities fee would better encourage a broad

forum for the expression of diverse student viewpoints (/d. ).

10. The Rutgers University Board of Governors ultimately

enacted such a neutral funding policy, which was originally pro-

posed by Dr. Bloustein (Tr. VI, 18) and is set forth in the margin

in its entirety as amended in 1973.° Two key eligibility re-

quirements were established by the University in its neutral fund-

ing policy.

® The funding policy provides as follows:

The following is a statement of University policy regarding the funding of student

sponsored programs and organizations which are nct legally eligible to receive funds

from student activity fee accounts.

(1) Each organization is required to present its program and plans for concept

review to the University Senate for recommendation to the President.

(2) If approved, the organization shall seek college referenda on the issue of student

funding support for their program. At least fifty per cent of the student body of each

division of the University shall be required to participate in such referenda and a ma-

jority of those voting must approve the project in order for implementation within that

division. As an alternate, an affirmative vote of twenty-five per cent of the student

body plus one shali Se adequate to meet this test.

a a NNT

2 er NUE unl

79a

a. The activity funded must have significant educational

value. The educational value of any proposed activity is

scrutinized by the University President and by the Universi-

ty Senate, an advisory body composed of administrators,

faculty and students (Tr. VI, 12). Any group hoping to be

funded through the neutral funding policy must present a

“concept plan” to the President and University Senate at the

time the proposal is initially made and every three years

thereafter, if funding is approved.

b. After the concept plan is approved for its educational

value, the organization seeking funding must demonstrate

widespread student support by attaining a minimum affir-

mative vote of 25% plus one of all students eligible to vote.

PIRG must also receive a majority of those actually voting.

Referenda must be held every three years after initial ap-

proval of funding is approved by the students. At each

referendum, students are free to campaign for and against

the groups sceking to participate in the special funding pro-

gram (ir. IX, 67-69). Twenty-five percent of the student

body was viewed as an extremely stringent requirement, as

the general turnout at student elections at Rutgers is only ten

to fifteen percent of the student body (Tr. VI, 24).

11. The Senate Education Policy Planning Committee en-

dorsed the neutral funding mechanism described above. It felt

that the funding system and its operation in practice would be a

valuable adjunct to the educational opportunities available at

Rutgers (Tr. VI, 20-21). Dr. Bloustein concurred with this judg-

ment at the time the policy was passed by the University and

reiterated his belief at trial that the funding mechanism in itself is

educational (Tr. VI, 22-24, 45-47).

(3) The organization shall then be listed on the University term bill with payment of

the indicated fee mandatory. A postcard asking for a refund shall be included along

with the term bill which shall be sent by the individual student to the organization and

which shal! send the refund directly to the student.

(4) Each organization so funded shall be expected to defray the University cost of

administration of the fee collection.

(5) Each organization shall be required every three years to meet the tests defined

under items #1 and #2 above in order to continuc to receive funds under this policy

and procedure.

80a

12. The University’s position about the educational value of

the neutral funding system is based on several considerations:

a. The funding procedure requires the funded group to

regularly “meet its constituency” to seek their approval

through the periodic referenda (Tr. VI, 23). Dr. Bloustein

believes there is “great educational value” in the process of

having students publicly campaign to win the support of

fellow students whom they purport to represent (Tr. VI,

23-24). The experience of advocating one’s position in the

referendum process forces proponents of PIRG to learn their

Opponents’ arguments in order to rebut them, in itself an

educational introduction to the political process (Tr. VI, 45,

57).

b. The referendum procedure encourages diversity at

Rugers, since it provides a freer forum for a wider expres-

sion of student opinion than the student fee boards used to

disperse the mandatory student activities fee (Tr. VI, 46).

The process is more “democratic” than the existing funding

of student activities (Tr. VI, 47), in that it broadens the

range of organizations funded with student fees (Tr. VI,

46-47). Moreover, the funding procedure is controlled by

the general student population and is therefore independent

of the sometimes acrimonious disputes of the student fee

board as to the appropriate disbursement of student fees (Tr.

VI, 49).

13. Following the enactment of the neutral funding mecha-

nism by the Rutgers Board of Governors, PIRG campaigned for

and won student referenda at several Rutgers campuses (Exhibit

17). PIRG has operated continuously at Rutgers since 1972,

essentially supported by the refundable student fee (Stipulation 8;

Tr. III, 170). Rutgers has facilitated the collection and transfer to

PIRG of a total of over $800,000 over the past twelve years (Tr.

II, 109).

14. The PIRG fee was originally $1.50 per semester per stu-

dent. The fee approved in the most recent student referenda is

$3.50 per semester (Stipulation 12). PIRG has complied with the

requirements of the University’s funding policy by submitting a

8la

“concept plan” and winning the approval of the university ad-

ministration every three years since 1972 (Tr. VI, 54; Exhibit

171 (1975); Exhibit 178 (1978); Exhibit 184 (1981)). Rutgers

President Bloustein firmly believes that PIRG has a valuable

educational purpose and functions only incidentally as a political

group (Tr. VI, 54-55, 66-68).

15. The special funding policy is neutral and is not limited to

the funding of PIRG. The Daily Targum, the undergraduate

newspaper at Rutgers’ New Brunswick campus, has obtained stu-

dent fees pursuant to the funding policy since 1980 (Stipulation

11; Tr. IX, 71). The Targum takes editorial positions on political

issues (Tr. VI, 48-49) and endorses candidates running for elec-

tive public office (Tr. VI, 49-52).

16. PIRG generally wins. overwhelming margins in the fund-

ing referenda, sometimes as much as 90% of the votes cast (Tr.

1X, 67); Exhibit 393 (referenda results collected)). At the time of

trial, PIRG fees were being collected from students at the follow-

ing constituent campuses of Rutgers: Cook College, Douglass

College, Rutgers Law School/Camden, Rutgers Law

School/Newark, and Rutgers College at New Brunswick (Tr. IX,

94). PIRG fee referenda have recently failed to attain the

minimum vote required for funding at Rutgers’ other two cam-

puses, Livingston College and the Rutgers Camden College of

Arts and Sciences (Tr. 1X, 64-65). The defendants have informed

the court that after the trial in this action a PIRG referendum

passed in the Spring of 1984 at Livingston College, leaving

Rutgers-Camden as the only Rutgers campus where students have

not approved the funding mechanism for PIRG (Galligan Af-

fidavit, {{ 4-5).

17. The refundable student fee for PIRG is named as a

separate line item on students’ bills each semester (Exhibits 1, 2

and 3). Rutgers describes the fee as mandatory (Stipulation 6),

but does not sanction students who refuse to pay the fee (Tr. VI,

27: Tr. IX, 77). Approximately three to five percent of the

students who have paid the PIRG fee request a refund from the

University of their PIRG fee (Tr. IX, 81).

18. A leaflet that describes PIRG, its activities and the refund

82a

procedure is enclosed with each term bill (Stipulation 13; Exhibit

4). The back of that leaflet contains a form which those students

desiring a refund must complete and submit to PIRG (Stipulation

14). PIRG staff members keep confidential the names of those

students seeking refunds of their PIRG fees (Tr. IX, 85). The re-

fund form does not ask for any explanation or statement or

reasons for the refund request (Stipulation 15). No plaintiff is

aware of any incident in which any Rutgers student has been

discouraged by Rutgers, by PIRG, or by any other person or

organization, from requesting a refund of the PIRG fee (Stipula-

tion 16). No plaintiff is aware of any incident in which any

Rutgers student has been subjected to any type of reprisal or

punishment for requesting or receiving a refund of the PIRG fee

(Supplemental Stipulation).

19. When PIRG receives the refund forms, it contacts Rutgers

to determine whether the students seeking refunds have in fact

paid the PIRG fee (Tr. IX, 76). After PIRG receives this verifica-

tion from Rutgers, it sends out refund checks to the students who

have requested them (Tr. IX, 78). Refunds are generally sent out

in the latter part of the semester in which students have paid the

fee (Tr. IX, 76-80).

20. At the beginning of each semester, Rutgers pays an ad-

vance to PIRG up to ninety percent of the funds collected for

PIRG from students upon registration (Tr. IX, 79). The Universi-

ty deducts from the amount sent to PIRG its expenses in ad-

ministering the funding system, which ranges from

$2,000-—$3,000 per semester (Tr. IX, 80). At the end of each

semester, Rutgers pays PIRG the balance of the PIRG fees col-

lected for which no refunds were given (Tr. IX, 79). Students who

have requested and received refunds of their PIRG fees are still

free to participate in the activities of PIRG (Tr. IX, 75).

C. The Organizational Structure of PIRG

21. PIRG is governed by students elected by their peers to

serve as members of PIRG boards of directors at the local (cam-

pus) and state levels (Tr. V, 167; Exhibit 94 (organizational

flowchart of PIRG)). The loca! boards of directors are responsible

83a

for PIRG activities on each constituent campus of Rutgers (/d.;

Tr. IX, 12-13). Local board members elect the members of the

state board of PIRG which ultimately governs the organization,

sets policy and chooses the projects and activities in which PIRG

becomes involved (Tr. V, 167; Tr. VIII, 61-68). The representa-

tion of each Rutgers campus on the PIRG state Board of Directors

is proportionate to the relative sizes of the constituent campuses

(Tr. V, 167-68).

22. The PIRG state Board of Directors, composed entirely of

students, elects one of its members to serve as the state chairper-

son of PIRG (Tr. VIII, 61). The chairperson, among other duties,

runs monthly meetings, oversees the PIRG support staff, proposes

agendas, and supervises numerous PIRG committees, which in-

clude a hiring committee, a projects committee and a finance

committee (Tr. VIII, 63). He or she acts as the liaison from PIRG

to other groups and organizations within the University and as a

general spokesperson for PIRG (Tr. VIII, 81).

23. The state Board of Direc.ors is solely responsible for the

selection of PIRG’s activities (Tr. VIII, 64, 68). Any student at

Rutgers, whether or not active in PIRG, may submit suggested

projects for PIRG to the consideration of PIRG’s board of direc-

tors (Tr. VIII, 63). Among the factors relied upon by the students

in selecting projects for PIRG are (a) whether there is adequate

student interest in the proposed project; (b) whether the resources

of PIRG could support the project; (c) whether PIRG staff

members or students had expertise in the area; (d) what sort of

end result would arise from the project (e.g., a pamphlet or

publication); (e) the amount of time a project would consume;

and (f) the need in the community for the project (Tr. VIII, 64).

The projects and positions of PIRG are selected annually by the

students governing the organization (Tr. VI, 113: “We are not

bound by what was done in previous years nor do we bind the

next State Board” (Angela Dileo, former PIRG chairperson)).

24. The PIRG board of directors has the responsibility of hir-

ing and firing the executive director of PIRG (Tr. V, 177). The

executive director is selected by the state Board of Directors after

84a

applicants are interviewed and screened by a Hiring Committee

composed of members of the board (Tr. V, 17% 4).

25. The executive director of PIRG is the salz .ed supervisor

of the PIRG staff who oversees PIRG’s activities on a day-to-day

basis (Tr. V, 177-78). In addition to the executive director, who is

a full-time employee of PIRG, there are six other full-time

empioyees and one part-time employee of the organization who

work with Rutgers students to implement PIRG policies and

supervise PIRG internships (Tr. V, 183). These other employees

include coordinators of PIRG activities on the constituent cam-

puses, an administrative director, a part-time attorney and an

outreach director who coordinates PIRG’s relations with citizens

in the community (Tr. V, 183-84). PIRG’s organizational struc-

ture is detailed in Exhibit 94 (see also Tr. IX, 19-20).

26. Students active in the governance of PIRG testified that

their governance activities and responsibilities have in themselves

been educational, in that they learn leadership and organizational

skills, group dynamics and communications skills, technical

writing and public speaking (Tr. V, 186; Tr. VIII, 68-69; Tr. IX,

14). One former PIRG leader emphasized that PIRG activities

helped her develop feelings about the importance of citizenship

and an individual’s responsibility to contribute to society. (Tr. V,

187).

27. The paid staff of PIRG advise the students and assist in the

development and execution of PIRG projects, but exercise no vote

on the PRG boards of directors (Tr. V, 168-74; Tr. IX, 18, 25).

28. For several years of its existence, ending in July 1981,

PIRG employed a legislative director to lobby in support of posi-

tions taken by the PIRG state Board of Directors (Tr. IX, 21, 44).

PIRG does not currently employ a legislative director (Tr. IX, 21 ).

29. PIRG’s activities are predominantly undertaken by student

interns at the constitutent campuses of Rutgers (Tr. IX, 23).

Many students choose to intern at PIRG for academic credit or in

conjunction with their classwork (Tr. IX, 23-24: see also infra

Finding No. 36). Other students volunteer their time to assist with

PIRG projects (Tr. IX, 25). Hundreds of students at Rutgers have

participated in PIRG’s activities (Tr. VIII, 11; Tr. IX, 23-24; Ex-

hibit 182 at pp. 22-27).

aad

85a

30. Those students interning with PIRG for academic credit

can arrange for such credit by designing a research, project and

asking a member of the Rutgers faculty to approve and supervise

their activities. (Tr. IX, 24). Individual faculty members decide

what individua! work is to be required of PIRG interns, and facul-

ty members award grades to the students at the conclusions of

their internships (Tr. VII, 157-59; Tr. VIII, 44). PIRG staff

members communicate with the supervising faculty members in

order to inform the faculty of the activities of their students who

are working with PIRG (Tr. VII, 162-63). PIRG staff members

meet with PIRG interns on at least a weekly basis and provide

faculty members with evaluations of the students’ work at PIRG

(Tr. TX, 24).

D. The Scope of PIRG’s Activities

31. PIRG’s Goals are as follows:

a. to engage in non-partisan analysis, study and research

of such issues as urban revitalization, consumer protection,

resource planning, urban and rural occupational safety and

labor conditions, protection of natural areas and en-

vironmental quality, racial and sexual discrimination,

landlord-tenant relations, delivery of health care and similar

matters of urgent or long-range concern to the general

welfare of the people of the State of New Jersey.

b. to make available to the public at all times a full and

fair exposition of the pertinent facts and results of such non-

partisan analysis, study and research so that citizens may

form independent conclusions beneficial to the community.

Exhibit 91 (PIRG’s Articles of Incorporation).

32. As noted above (Finding No. 23), the activities under-

taken by PIRG are individually selected by the PIRG state Board

of Directors, consisting entirely of students from the constituent

campuses of Rutgers. Copious evidence in the form of exhibits

and testimony was introduced at trial about the scope of PIRG’s

activities.

33. The following Findings describe PIRG’s activities at

Rutgers. This is not by any means an exhaustive statement of

86a

those activities, but is an accurate reflection of the breadth of the

projects undertaken by PIRG in recent years.

a. PIRG sponsors debates, lectures and public fora on

matters of public interest and concern (Tr. V, 57; Tr. IX,

25). The subjects of these functions have included such

issues as education and tuition policy (Tr. [X, 27), decision

making in the energy field (Tr. IX, 26), and the Equal Rights

Amendment (Tr. V, 160).

b. Students and staff at PIRG have written, published and

disseminated informational pamphlets and consumer guides

on a wide variety of topics (Tr. IX, 27). These have included

publications on the competency and honesty of local service

stations (Exhibit 399), financial aid (Exhibit 402), tenants’

rights (Exhibit 403), the transportation system at the New

Brunswick campus of Rutgers (Exhibit 404), the Federal

Water Pollution Control Act (Exhibit 409), banking services

in New Brunswick (Exhibit 410), hospital emergency rooms

and squads (Exhibit 412), general consumer guides (Exhibits

413 and 415), solar energy (Exhibit 414) and fuel costs (Ex-

hibit 419). These exhibits represent only those PIRG

research projects that have ultimately resulted in formal

published pamphlets and guides. Other research papers done

by students working with PIRG include reports on such

topics as higher education, water conservation and New

Jersey’s oil spi!! program (Tr. IX, 40-41).

c. PIRG’s single largest project at Rutgers has been the

Clean Water Action Project, which constitutes approx-

imately forty percent of PIRG’s work at Rutgers (Tr. [X,

30-31). There exists a strong interest at PIRG in en-

vironmental matters partly because Cook College, one of

Rutgers’ constituent campuses, emphasizes environmental

studies, and also because New Jersey itself often faces

serious environmental problems (Tr. IX, 31 ). A major com-

ponent of the Clean Water Action Project is “streamwalk-

ing,” a program wherein PIRG students wade in boots

through streams attempting through scientific testing to

discover hidden illegal sources of pollution into New

87a

Jersey’s fresh water systems (Tr. V, 152-53; Tr. VII, 63-64;

Exhibits 327-31). PIRG students frequently find such illicit

pollution discharge points (Tr. VII, 64), mark the spot on a

regional map, and notify the United States Environmental

Protection Agency of the violations (Tr. VII, 63).

d. Another major area of involvement for PIRG is con-

sumer protection (Tr. IX, 31; e.g, Exhibit 413). PIRG has

published many consumer informational pamphlets, ran a

consumer hotline and published a directory of social ser-

vices (Tr. IX, 31-32).

e. Some other major areas of PIRG’s work include

energy conservation (Tr. IX, 33-34; Exhibits 417-18), tui-

tion policy and financial aid (Tr. IX, 34), tenant's rights

(Tr. IX, 35) and women’s rights (/d.).

f. PIRG staff and students sometimes publicly lobby to

further the positions taken by the PIRG board of directors

(Tr. Il, 162-63; VI, 110-11; Tr. IX, 27-28, 49). PIRG staff

and students have lobbied individual state legislators and

appeared and testified before legislative committees in

Trenton, New Jersey (Tr. 1X, 49-50). Edward Lloyd, the ex-

ecutive director of PIRG from 1978 through 1983 estimates

that he spent at most about fifteen percent of his time in

legislative activities (Tr. IX, 45-46).’ PIRG’s campus coor-

dinators also occasionally lobby“to further the positions

taken by PIRG (Tr. IX, 48). PIRG’s staff attorney has

sometimes represented PIRG in litigation assistéd by

Rutgers law students in clinical programs or internships

(Tr. IX, 28).

7? The court notes the testimony of Harold Bozarth, a chemical industry lobbyist who

testified that Mr. Lloyd attends legislative sessions nearly every day when the

legislature is in session (Tr. II, 16). Lloyd was asked about Bozarth’s testimony (Tr. IX,

46). He explained that PIRG and the chemical industry took adverse positions on a

recently enacted “right to know” bill affecting the chemical industry (/d). Lloyd

speculated that since he and Bozarth frequented the same legislative committee

meetings for that bill, Bozarth was under the mistaken impression that Lloyd was con-

stantly in attendance at the state legislature (/d. ).

88a

g. PIRG has sometimes lobbied in coalition with other

student groups on issues of common interest (Tr. IX, 50-52).

The other groups include the Rutgers University Legislative

Action Committee and the New Jersey Student's Associa-

tion, groups funded by Rutgers students through the man-

datory, non-refundable student activities fee (Tr. IX, 52).

PIRG sometimes takes positions opposed to the positions

taken by Rutgers (Tr. IX, 53).

34. The plaintiffs in this action retained Irving B. Ross, a cer-

tified public accountant, to analyze PIRG’s financial records (Tr.

II, 71-179). After reviewing those records in detail, he was

unable to quantify the expenditures of PIRG in terms of

“political” expenditures and “educational” expenditures (Tr. II,

80). He could not do so because PIRG’s financial documents did

not break down its activities into these categories, and the

underlying records of the organization did not contain data ade-

quate for him to make such a distinction (Tr. II, 79-109). The

court's independent review of PIRG’s financial documents con-

firms that it is impossible from these records to numerically

quantify “political” and “educational” components of PIRG (e.2.,

Exhibits 100-161).

E. The Experiences with PIRG of Rutgers Faculty and

Students

35. At trial past and present Rutgers faculty and students ap-

peared to testify about their experiences with PIRG, and about

whether they believe that PIRG contributes educationally to the

university community and whether it specifically contributed to

their educational experiences at Rutgers. All of these witnesses,

whose testimony is briefly summarized below, were called by the

defendants. The plaintiffs called no Rutgers faculty or students to

rebut the testimony of these witnesses that PIRG’s presence at

Rutgers significantly enhances the educational opportunities

available to faculty and students at the University.

36. The past and present Rutgers students who testified inc

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