Opposition Brief — Carroll v. Blinken

Ocroser TERM, 1991

THOMAS W. CARROLL, ROBERT J. CARROLL,

MICHAEL E. McCHESNEY, EMANUEL J. PANOS,

EDWARD J. PRIOLA, CRAIG J. RUCKER, ROBERT T.

SCHMIDLIN, BETH TURKOVIC GARFUNKEL,

CHRISTINE McCLELLAN, CHRISTOPHER SANDOR

and SUSANNE ZIEGLER,

Petitioners,

VS.

DONALD M. BLINKEN, in his capacity as Chairman of the

Board of Trustees of the State University of New York,

Respondents.

(For Full Caption See Inside Cover)

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

RESPONDENT NEW YORK PUBLIC INTEREST

RESEARCH GROUP, INC.’S BRIEF IN

OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

ALEXANDER R. SusSMAN

Counsel of Record

Friep, FRANK, Harris, SHRIVER & JACOBSON

(A Partnership Including Professional

Corporations)

Attorneys for Respondent New York

Public Interest Research Group, Inc.

One New York Plaza

New York, New York 10004

(212) 820-8000

Of Counsel:

JocELYN LEE JACOBSON

No. 91-1831

IN THE

Supreme Court of the United States

Ocroser TERM, 1991

THOMAS W. CARROLL, ROBERT J. CARROLL,

MICHAEL E. McCHESNEY, EMANUEL J. PANOS,

EDWARD J. PRIOLA, CRAIG J. RUCKER, ROBERT

T. SCHMIDLIN, BETH TURKOVIC GARFUNKEL,

CHRISTINE McCLELLAN, CHRISTOPHER SANDOR

and SUSANNE ZIEGLER,

Petitioners,

vs.

DONALD M. BLINKEN, in his capacity as Chairman of the

Board of Trustees of the State University of New York,

GEORGE L. COLLINS, JR., D. CLINTON DOMINICK,

JUDITH LASHER DUKEN, ARNOLD B. GARDNER,

GURSTON D. GOLDIN, JOHN L.S. HOLLOMAN, JR.,

NAN JOHNSON, EVERETTE JOSEPH, JUDITH

DAVIDSON MOYERS, EDWARD V. MELE, VICTOR

MARRERO, ROSEMARY SALOMONE, EDGAR A.

SANDMAN, THOMAS VAN ARSDALE, and DARWIN

R. WALES in their respective capacities as trustees of the State

University of New York, JEROME KOMISAR, in his capacity

as Acting Chancellor of the State University of New York,

VINCENT O’LEARY, CLIFFORD D. CLARK, and

ALICE CHANDLER, in his or her capacity as President and

chief administrative officer of, respectively, the State University

of New York at Albany, the State University of New York at

Binghamton, and the State University of New York at New Paltz

and NEW YORK PUBLIC INTEREST

RESEARCH GROUP, INC.,

Respondents.

QUESTIONS PRESENTED

5. Does the State University of New York at

Albany ("SUNY Albany") violate the First Amendment to the

United States Constitution by applying a content-neutral,

student activity fee regulation to fund numerous and diverse

student groups, when one of the student groups, which is

funded because of its educational value, engages in speech with

which some students disagree?

2. Was the Court of Appeals correct in finding

that any minimal intrusion on First Amendment rights is more

than justified by SUNY Albany's interests in enriching

students’ educational opportunities and stimulating energetic

campus debate, provided that the student groups at SUNY

Albany use the student activity fees for the benefit of SUNY

Albany students?

iets aaa

li

PARTIES TO THE PROCEEDING

The petitioners, who were plaintiffs in the district court

and appellants in the Court of Appeals are: Thomas W.

Carroll, Robert J. Carroll, Michael E. McChesney, Emanuel J.

Panos, Edward J. Priola, Craig J. Rucker, Robert T.

Schmidlin, Beth Turkovic Garfunkel, Christine McClellan,

Christopher Sandor and Susanne Ziegler. !

The respondents, who were defendants in the district

court and appellees in the Court of Appeals are: Donald M.

Blinken, in his capacity as Chairman of the Board of Trustees

of the State University of New York, George L. Collins, Jr.,

D. Clinton Dominick, Judith Lasher Duken, Arnold B.

Gardner, Gurston D. Goldin, John L.S. Holloman, Jr., Nan

Johnson, Everette Joseph, Judith Davidson Moyers, Edward V.

Mele, Victor Marrero, Rosemary Salomone, Edgar A.

Sandman, Thomas Van Arsdale, and Darwin R. Wales, in their

respective capacities as trustees of the State University of New

York, Jerome Komisar, in his capacity as Acting Chancellor of

the State University of New York, Vincent O'Leary,

Clifford D. Clark, and Alice Chandler, in his or her capacity

as President and chief administrative officer of, respectively,

the State University of New York at Albany, the State

University of New York at Binghamton, and the State

1. This Court does not have jurisdiction over the claims of any of the

petitioners, except Thomas W. Carroll ("Carroll"), because the Notice

of Appeal (the “Notice”) only named Carroll in either the caption or the

text of the Notice. Carroll's injunctive relief claims had been dismissed.

earlier in the case by the district court as moot, which dismissal was

never appealed. Thus, the Notice is defective av to all other petitioners,

including the only plaintiffs with injunctive relief claims, because it fails

to comply with the jurisdictional requirements of Fed. R. App. P. 3(c).

See, e.g., Torres v. Oakland Scavengers Cu., 487 U.S. 312, 318

(1988).

University of New York at New Paltz, and New York Public

Interest Research Group, Inc.2

2. New York Public Interest Research Group, Inc. has no parent company

ae

and no subsidiaries.

iv

TABLE OF CONTENTS

Page

ee RAINED WITS ID s sscdescesesececssessasecrsnanssmstsauneds i

PAIRED BU) EOE PROIRIOUIING, coccccscccesscsscnce sesncccsens ii

Se I achive ssintsssininsnasinscasccasieceseseuss . Iv

RE GET Eis sncnsiessxasentcaccasdocnecastssenaes .V

POUR GE CINE Ce cic cescesnsnccscatcccsswenasesonncesas l

REASONS FOR DENYING THE WRIT...................00000008 7

I. The Court of Appeals Applied Settled Principles of

Academic Freedom in Upholding the State

University's Content-Neutral Student Activity

Pa enti Laciaudeunebeediguaiecdackokianncss 7

II. The Court of Appeals’ Decision is Consistent with

this Court's Precedents and with the Decisions of

Re I ina sini sisiicricanucecniaceiucs 11

SIN ig ished andes sdlstba ii sisa Shuennatasadhonxedcatacee 16

SCENT sch ius uhh cnbaakschuaubvasencacesseathacseseiabcons seowoneek D1

Appendix D - Opinion and Order of the United States

District Court, Southern District of

New York, dated July 30, 1991............ D1

Vv

TABLE OF AUTHORITIES

CASES Page

Abood v. Detroit Board of Education,

Pe NT thie hi vcdcnceeinsnssdicdactotsieae 11, 12, 14

Associated Press v. United States,

es sekusdusaususnaubavaeecios 10

Board of Education v. Pico,

Cees even Gan loa 9

Burson v. Freeman,

__ U.S. _, 60 U.S.L.W. 4393 (U.S. May 26, 1992)......... 12

Clark v. Community for Creative. Non-Violence,

Re ai Te oak ccs scecenanebendancenadewn 12, 13

Chicago Teachers Union v. Hudson,

nce a chndonkchachscudnrindubensabescucsnns 11

Ellis v. Brotherhood of Railway, Airline &

Steamship Clerks, 466 U.S. 435 (1984) ...........cc cece eee ee ees 11

Galda v. Bloustein, 686 F.2d 159 (3d Cir. 1982) ...... ....... 10

Galda v. Rutgers, 772 F.2d 1060 (3d Cir. 1985),

cert. denied, 475 U.S. 1065 (1986) ................ccceeeee ee 14, 15

Healy v. James, 408 U.S. 169 (1972) 20... ... ccc cece eee eee 9, 10

Keller v. State Bar of California,

i ee icihinilanianeticncenuniuininnaccdaieetolas 11, 12, 14

Keyishian v. Board of Regents, 385 U.S. 589 (1967)............ 9

CASES Page

Lehnert v. Ferris Faculty Ass'n., __ U.S. _,

eee is ele INNES vininacinebasndacnecsensunsinnneinnnen 11, 12, 14

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)........ 10

Perry Educ. Ass'n. v. Perry Local Educators' Ass'n.,

Re le OF ED cnchtisncechecnunsnbinanecnsscattdbcssaceresoencses 10

Regents of the Univ. of Cal. v. Bakke,

Se a Me TE cntinadpinsttnnsatenconestnnaascnnsnsensansitenes 8,9

Regents of the Univ. of Michigan v. Ewing,

Fe is Se EE Wi Gisiinesecbnbdacaendskssinnkdcsncnieaneenes 8, 10

Simon & Schuster, Inc. v. Members of the N.Y. State Crime

Victims Board, __ U.S. __, 112 §.Ct. 501 (1991).............. 12

Torres v. Oakland Scavengers Co., 487 U.S. 312 (1988) ...... ii

United States v. Albertini, 472 U.S. 675 (1985)................ 12

Veed v. Schwartzkopf, 353 F. Supp. 149 (D. Neb. 1973),

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

Say ITED AnsinthdedssAcpenlaniandntioeaaaadcnubenanndbaineadatinkeene :

Ward v. Rock Against Racism, 491 U.S. 781 (1989) .......... 12

Widmar v. Vincent, 454 U.S. 263 (1981) .................0005 9, 10

CONSTITUTIONAL PROVISIONS

is SIE Tid pana cicshannnsunauneccsandabusicoasnents passim

RULES AND REGULATIONS

ee es te ia ons 5s conaumauunceuscnsuntasianncaaans 2

No. 91-1831

In The

Supreme Court of the United States

October Term, 1991

THOMAS W. CARROLL, et al.,

Petitioners,

v.

DONALD M. BLINKEN, in his capacity as Chairman

of the Board of Trustees of the State University of

New York, et al. and NEW YORK PUBLIC

INTEREST RESEARCH GROUP, INC..,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

RESPONDENT NEW YORK PUBLIC

INTEREST RESEARCH GROUP, INC.'S

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

This is an action by eleven former and current students

("plaintiffs" or “petitioners") who challenge as unconstitutional

the allocation to New York Public Interest Research Group,

— Inc. ("NYPIRG") of a portion of the mandatory student activity

fees paid by all students at three campuses of the State

University of New York ("SUNY" or the "University").3

rina that the allocation to NYPIRG violates their

Fi ment rights because they disagree with some of

NYPIRG's views and activities.

Pursuant to New York State Education Law, Section

355, the SUNY Board of Trustees adopted a regulation as

amended in 1976, 8 N.Y.C.R.R. § 302.14 (the “Regulation"),

which governs the imposition, collection and allocation of the

student activity fee at SUNY, including the SUNY Albany

campus. The Regulation establishes a mechanism through

which a broad range of extracurricular activities enhancing the

educational, cultural, social and recreational experiences of the

SUNY student population can be funded (App. 5D).4 Under

the Regulation, all allocations which are included in the student

activity fee budget must benefit the campus community and be

consistent with one of eleven criteria (App. 5C).

The Regulation is content-neuirai (App. 18A), and

plaintiffs do not claim otherwise. The student activity fee at

SUNY Albany is used to fund approximately 100 student

groups on a non-discriminatory basis. Through this funding

SUNY Albany has created a diverse forum for “uninhibited and

vigorous discussion on matters of campus and public concern"

3. The complaint sought a permanent injunction, declaratory judgment and

damages. Prior to trial, the district court dismissed the injunctive relief

claims of all plaintiffs who had graduated from SUNY for lack of

standing and bifurcated the trial so that the remaining injunctive relief

claims, those as to SUNY Albany, would be tried first.

4. The decision of the district court is reproduced in Appendix D. Page

references are to the Appendix.

ee

(App. 21A). The creation of a forum on campus is part of the

University's educational mission (App. 21A-22A, 10D).

Any student group is eligible for funding if the SUNY

Albany Student Association determines, with required approval

by SUNY Albany's President, that the student group meets the

criteria set forth in the Regulation (App. 5A). SUNY Albany's

funding of NYPIRG complies with the Regulation because

NYPIRG provides substantial educational benefits to students

at SUNY Albany (App. 20A-21A, 9D), and thus satisfies the

sixth criterion of the Regulation as a recognized student

organization whose “purpose and activities . . . are of [an]

educational, cultural, recreational or social nature" (App. 5A).

Among other things, NYPIRG's educational value includes

teaching students concrete skills, such as research, public

speaking, writing, negotiation, organization and advocacy and

providing a “hands-on civics exercise" (App. 20A-21A; see

8D). In addition, SUNY Albany awards academic credit for

students who participate in internships with NYPIRG

(App. 8A).

NYPIRG is a student run, not-for-profit organization,

whose board of directors (the "Board") is composed solely of

students elected annually by all of the students at each of the 17

schools in New York State with a NYPIRG chapter

(App. 6A, 6D). Each of those schools has at least one

representative on the Board. The Board approves project

proposals and annually selects the projects and issues on which

NYPIRG will work both statewide and on local campus

chapters (App. 7D). Any student may submit a proposal to

NYPIRG's Board and, thus, it is the students who choose the

projects and issues NYPIRG works on (App. 7D).

NYPIRG's paid staff, which is under the control of the

student Board, provides students with experienced supervision

and direct skills training, such as workshops on writing and

public speaking. Contrary to plaintiffs’ assertions, most of the

paid staff of approximately 65 individuals statewide are

involved in supervising and teaching students who are active in

NYPIRG either on campus or in NYPIRG's legislative

internship program or are involved in administering NYPIRG's

New York office in order to ensure that the NYPIRG campus

chapters receive the benefits of being part of a statewide

organization? (App. 8D, 14D). The testimony at trial was

uncontradicted that NYPIRG employs no full-time paid

lobbyists and that only a small number of staff members ever

lobby, and then only rarely. NYPIRG hires a full-time

project coordinator at each campus chapter, including SUNY

Albany, to assist students in developing research, writing, and

public speaking skills. NYPIRG hires executive staff

responsible for the supervision and training of the full-time

project coordinators.

NYPIRG's focus is, and always has been, the campuses

and most of NYPIRG's activities take place there. NYPIRG's

activities are non-partisan and NYPIRG does not endorse or

support campaigns for elective office (App. 6D). The campus

chapter at SUNY Albany organizes numerous speeches,

debates, public forums and film/discussion events on a host of

public issues. The work of NYPIRG's campus chapter at

SUNY Albany has contributed to the diversity and breadth of

views aired on the SUNY Albany campus.

5. Although plaintiffs state that NYPIRG is the only funded student group

which has its principal office off-campus, at least one other funded

student group, Amnesty International, has its principal office off the

SUNY Albany campus.

6. In any event, whether staff members lobby is irrelevant because to the

extent NYPIRG expends funds on activities which do not involve SUNY

Albany students, the Court of Appeals ruled in plaintiffs’ favor that

these funds may not come from SUNY Albany student fees (App. 24A-

26A).

Despite plaintiffs’ attempts to portray it otherwise,

NYPIRG is not unique among funded organizations at SUNY

Albany. First, NYPIRG is funded, as are all other student

groups, only after both the SUNY Albany Student Association

and the SUNY Albany President determine that it meets the

criteria set forth in the Regulation. Further, NYPIRG is not

the only group which is funded on a per capita basis, whose

budget is not itemized or whose funding is subject to a separate

advisory referendum.

During the relevant period, 1986-1989, the SUNY

Albany Student Association approved an average allocation to

NYPIRG of approximately $57,000 per year, out of a student

activity fee budget of approximately one million dollars per

year. This money is spent on the training students involved

with NYPIRG at SUNY Albany receive and on the many

activities and projects on which the students participate and

work. ?

Student activity fees make up 30 percent of NYPIRG's

budget (App. 8D-9D). Thus, NYPIRG extensively

supplements this funding from other sources and expends more

on behalf of students enrolled at the campuses on which

NYPIRG is located, including SUNY Albany, than the amount

of NYPIRG's budget allocation from those campuses.

After a bench trial, the district court rejected plaintiffs’

claims holding that plaintiffs had not established that their First

Amendment rights had been infringed (App. 15D). The

7. Petitioners attempt to portray NYPIRG as having limited participation by

students at SUNY Albany (Petition for Writ of Certiorari ("petition") at

5 n.5). However, the testimony was undisputed that, in addition to the

40 students who run the campus chapter, many more, up to a couple of

hundred, attend each NYPIRG meeting and each forum, debate and

movie NYPIRG sponsors.

district court found as a fact that NYPIRG's activities do

provide a substantial educational benefit to students at SUNY

Albany and concluded that SUNY Albany's exercise of

academic freedom was itself protected by the First Amendment

(App. 8D-10D). The district court found that “the activity fee

funds a forum created for the purpose of fostering the

expression of diverse views through a wide range of groups”

and “is being used by SUNY Albany precisely to further the

University's core educational purpose of maintaining a broad

extracurricular program and an open forum for discussion and

debate” (App. 13D-14D). Further, the district court held that,

because plaintiffs do not pay any fee directly to NYPIRG and

because the fee they do pay is used to fund a large number of

diverse groups, plaintiffs had not established their claims of

compelled speech or association (App. 12D).

The Court of Appeals held that plaintiffs’ First

Amendment right against compelled speech suffers when

NYPIRG uses student funds (App. 15A), but that the

infringement is justified by various educational interests of the

University (App. 23A). Specifically, the court noted SUNY

Albany's substantial interest in promoting “a rich

extracurricular life for its students," in teaching “specific,

concrete skills - research, speaking, writing, organization and

advocacy,” and in stimulating “uninhibited and vigorous

discussion on matters of campus and public concern"

(App. 19A-21A). Moreover, the court found that “these

interests would be served less effectively absent the activity fee

distribution regulation" (App. 23A).

However, the Court of Appeals further ruled that

SUNY Albany's interests would not justify the use of SUNY -

Albany students’ money for any NYPIRG expenditures that

were unrelated to benefiting SUNY Albany students®

(App. 24A-26A). Consequently, the court remanded the case

to the district court to fashion procedures “requiring NYPIRG

to confirm in the Albany Student Association budgetary

process that it spends at SUNY Albany the equivalent of

Albany students’ activity fee contribution" (App. 26A). The

district court has not yet determined what procedures are

required.

REASONS FOR DENYING THE WRIT

I.

THE COURT OF APPEALS APPLIED

SETTLED PRINCIPLES OF ACADEMIC

FREEDOM IN UPHOLDING THE STATE

UNIVERSITY'S CONTENT-NEUTRAL

STUDENT ACTIVITY FUNDING REGULATION

The petition's finespun arguments unwind because they

misconceive one bedrock principle of First Amendment

jurisprudence: academic freedom. Plaintiffs disagree with the

factual findings of the courts below that NYPIRG has

educational value to students and that SUNY Albany has

educational policy reasons for permitting NYPIRG to be

funded along with other groups. However, those findings,

8. The Court of Appeals also held that the automatic membership provision

of NYPIRG's by-laws, pursuant to which all students who paid the

student activity fee were members of NYPIRG, served no substantial

SUNY Albany interest and impermissibly infringed the students’ right to

be free from compelled association. Because this issue was decided by

the Court of Appeals in plaintiffs’ favor, it is not before this Court.

Additionally, on April 11, 1992, in response to the Court of Appeals’

decision, NYPIRG amended its by-laws to eliminate the automatic

membership provision.

which are not challenged as clearly erroneous, significantly

deflate plaintiffs’ arguments that this case warrants this Court's

granting of the petition.

Indeed, the petition is little more than a garden-variety

objection to a student activity regulation. Plaintiffs’ objection

to NYPIRG's funding is indistinguishable from objections that

each and every SUNY Albany student may have to one or

another student group. Moreover, plaintiffs’ theory invites the

federal courts, rather than college administrators, to determine

which student groups and activities are entitled to funding and

which are not. Thus, plaintiffs seek relief which would

threaten both to chill the free speech rights of students

participating in student activities and to undermine the

University's right to structure a diverse extracurricular

program and an open forum for robust debate.

The unanimous opinion of the Court of Appeals

upholds the Regulation by applying basic First Amendment

principles that are not in doubt, while giving due deference to

the educational judgments of SUNY Albany's administrators.

Further, while the Court of Appeals eschewed intermeddling in

university affairs, it did accord plaintiffs the narrowly

circumscribed right to challenge the allocation of student

activity fees to the extent the fees are alleged to be used for a

purpose unrelated to benefiting students at SUNY Albany.

SUNY Albany exercised its educational judgment in

deciding to permit funding of NYPIRG out of student activity

fees. Accordingly, the Court of Appeals properly considered

the long line of this Court's precedents which recognize the

academic freedom of a university and the wide latitude that

must be accorded to a university in pursuing its educational

mission (App. 18A-19A). See Regents of the Univ. of

Michigan v. Ewing, 474 U.S. 214, 225-26 (1985) (deference to

university required because of responsibility under First

Amendment to safeguard academic freedom); Regents of the

Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978) (First

Amendment guarantee of academic freedom leaves university

free to make its own judgments as to education); Keyishian v.

Board of Regents, 385 U.S. 589, 603 (1967) (academic

freedom is a special concern of the First Amendment).

As the Court of Appeals also recognized, SUNY

Albany's determination to foster extracurricular activities as

part of its educational program is entitled to broad deference.?

See App. 20A, citing Veed v. Schwartzkopf, 353 F. Supp. 149,

152 (D. Neb. 1973), aff'd, 478 F.2d 1407 (8th Cir. 1973),

cert. denied, 414 U.S. 1135 (1974). Academic freedom clearly

extends to fro moting education outside the confines of the

classroom! (App. 20A). See Widmar v. Vincent, 454 U.S.

263, 279 n.2 (1981) (Stevens, J., concurring) ("it is clear that

the ‘atmosphere’ of a university includes such a critical aspect

of campus life" as extracurricular activities).

Furthermore, college campuses are peculiarly the

“marketplace of ideas." Healy v. James, 408 U.S. 169, 180

9. Plaintiffs’ educational claims are anachronistic and based on the narrow

notion that the proper function of public education begins at the

blackboard and ends at the classroom door. They reject the idea that a

state university has any interest in promoting educational activities that

are not listed in the course catalog. In fact, because the result of the

activity funding is that plaintiffs pay for one group with which they

disagree, they are willing to eliminate the funding of all student groups.

See Petition at 20, 24.

10. While petitioners rely on Board of Education v. Pico, 457 U.S. 853

(1982) for the proposition that extracurricular activities are not within

the same discretion of educators as are classroom activities, they ignore

that in Pico the plaintiffs had conceded that if the decision to remove

books from the school library was solely educational, instead of content

based, the decision would have been permissible. /d. at 870-72.

10

(1972). The student activity fee creates a forum at SUNY

Albany by funding nearly 100 diverse groups! ! (App. 21A,

10D). Determining which groups should be part of this forum

and which provide educational benefits to the students are

decisions "best left to administrators and trustees with expertise

in designing college and university curriculum and extra-

curricular activities" (App. 10D). See Ewing, 474 U.S. at 226;

Galda v. Bloustein, 686 F.2d 159, 166 (3d Cir. 1982) ("Galda

I") (noting that "[a]lthough many student-related groups have

ideological overtones, to the extent that the university

determines that an organization is an appropriate participant in

the total university forum, considerable deference should be

accorded that judgment").

Finally, the establishment of the forum, which is.

accessible to any student group without governmental review of

the content of the group's functions and activities, is itself

subject to First Amendment protection (App. 18A, 10D). See

also Widmar, 454 U.S. at 267-68, 277. Once a university

creates an open forum, the Constitution forbids the university

from enforcing discriminatory, content based exclusions.

Perry Educ. Ass'n v. Perry Local Educators’ Ass'n, 460 U.S.

37, 45 (1983); Widmar, 454 U.S. at 267-68. To deny funding

to NYPIRG because certain students disagree with its views

would effectively exclude NYPIRG from the forum and would

stand the First Amendment on its head.

For all these reasons, the Court of Appeals properly

weighed plaintiffs’ right to be free from compelled speech

11. The core purpose of the First Amendment is to foster the robust and

unfettered exchange of ideas. New York Times Co. v. Sullivan, 376

U.S. 254, 270 (1964); Associated Press v. United States, 326 U.S. 1, 20

(1945). This purpose is furthered by the creation of a forum at SUNY

Albany through the funding of these diverse groups (App. 9D-10D).

11

against the First Amendment rights of SUNY Albany in

academic freedom and of NYPIRG in non-discriminatory

access to the University forum, and correctly concluded that

the Regulation permitting the funding of NYPIRG at SUNY

Albany is constitutional.

THE COURT OF APPEALS' DECISION

IS CONSISTENT WITH THIS COURT'S

PRECEDENTS AND WITH THE DECISIONS

OF OTHER COURTS OF APPEALS

In reviewing whether the allocation to NYPIRG of a

portion of the mandatory student activity fees collected at

SUNY Albany intruded on petitioners’ First Amendment

rights, the Court of Appeals applied Abood v. Detroit Board of

Education, 431 U.S. 209 (1977), and its progeny, Ellis v.

Brotherhood of Railway, Airline & Steamship Clerks, 466 U.S.

435 (1984), Chicago Teachers Union v. Hudson, 475 U.S. 292

(1986), Keller v. State Bar of California, 496 U.S. 1 (1990)

and Lehnert v. Ferris Faculty Ass'n, _ U.S. _, 111 S. Ct. 1950

(1991).!2 The Court of Appeals found a First Amendment

intrusion, but determined that it was justified by SUNY

12. Respondent NYPIRG does not agree that Abood and its progeny should

apply to this case both for the reasons stated in Point I above and

because those precedents on their face do not apply where a university

compels the payment of a student activity fee which it allocates to nearly

100 diverse student groups cn a content-neutral basis in order to create a

forum.

12

Albany's interests in enhancing the educational quality of the

University. 13

Plaintiffs suggest that in Abood and its progeny this

Court required that the state demonstrate a compelling state

interest in the regulations at issue, but that suggestion is

mistaken. See, e.g., Lehnert, 111 S. Ct. at 1959; Keller, 496

U.S. at 13-14; Abood, 431 U.S. at 225, 232. This Court has

not applied the compelling state interest standard to forced

funding cases.

The Court of Appeals correctly followed this Court's

prior decisions holding that where a regulation affecting speech

is content-neutral, the state must show a substantial state

interest which would be achieved less effectively absent the

regulation. !4 See, e.g., Ward v. Rock Against Racism, 491

U.S. 781, 798-99 & n.6 (1989); United States v. Albertini, 472

U.S. 675, 687-89 (1985). A regulation is "content neutral so

long as it is ‘justified without reference to the content of the

regulated speech.'" Ward, 491 U.S. at 791 (quoting Clark v.

13. The points as to which the Court of Appeals found insufficient

justification —- NYPIRG's spending which did not benefit SUNY Albany

students and its automatic membership by-law provision — were decided

in petitioners’ favor and are not before this Court.

14. The compelling state interest standard, urged on this Court by

petitioners, is applied by this Court only where it finds a regulation of

speech is content based, unlike the Regulation at issue here. See, ¢.g.,

Burson v. Freeman, _ U.S. _, 60 U.S.L.W. 4393, 4395 (U.S. May 26,

1992); Simon & Schuster, Inc. v. Members of the N.Y. State Crime

Victims Board, _ U.S. _, 112 S. Ct. 501, 508-09 (1991}. The least

restrictive means test is similarly inappropriate for content-neutral

regulations. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781,

798 n.6 (1989).

13

Community for Creative Non-Violence, 468 U.S. 288, 293

(1984)) (emphasis deleted). As the Court of Appeals found,

the Regulation is content-neutral because it "does not grant or

withhold funds based on the content of the recipient's speech"

(App. 18A). Thus, the Court of Appeals properly determined

that the funding of NYPIRG was constitutional if the state had

a substantial interest which would be achieved less effectively

absent the Regulation (App. 18A). This test is especially

appropriate here where the Regulation seeks to expand speech

and the University's own First Amendment interests are at

stake.

The Court of Appeals found three substantial state

interests which justified SUNY Albany's allocation of a portion

of the student activity fee to NYPIRG. The first interest is the

promotion of a rich extracurricular life for students at SUNY

Albany (App. 19A). The Regulation is consistent with a

"common vision of the university as more than the sum of

classes in its course catalog" (App. 20A).

The second interest is SUNY Albany's interest in

NYPIRG's educational value to SUNY Albany students who

choose to participate in NYPIRG (App. 20A). NYPIRG's

educational value includes both its teaching of specific concrete

skills and its transmitting a sense of civic duty to students

(App. 20A-21A).

The third, and in the Court of Appeals’ view, the most

important, interest advanced by SUNY Albany in funding

NYPIRG and other groups pursuant to the Regulation is to

"stimulate uninhibited and vigorous discussion on matters of

campus and public concern" (App. 21A). The Court of

Appeals found that SUNY Albany's interest in "creat[ing] a

forum for the expression of diverse views" is itself a concern

of the First Amendment and that the funding scheme was part

of the “university fulfilling its traditional mission in a free

14

society" (App. 21A-22A). These interests, especially when

combined, are clearly substantial. !5

The Court of Appeals then found that SUNY Albany's

substantial interests would be less effectively achieved absent

the Regulation (App. 23A-24A). The Court of Appeals found,

for example, that “an alternative funding scheme would seem

less likely to commit the university community to the goals of

enriching campus life and promoting debate" (App. 244A).

Thus, the allocation of a portion of the student activiry fee at

SUNY Albany to NYPIRG is constitutional.

Further, the Court of Appeals faithfully applied the

germaneness doctrine from the Lehnert-Keller-Abood l\ine of

cases to determine whether the petitioners could be charged for

all of NYPIRG's expenditures (App. 24A). It determined that

there was a sufficient nexus between the allocation of the fee to

NYPIRG and SUNY Albany's educational interests, except to

the extent that NYPIRG did not spend the allocation from

SUNY Albany to benefit the students at SUNY Albany. !6

Thus, the Court of Appeals applied the germaneness test in a

manner consistent with the prior decisions of this Court.

Finally, plaintiffs argue that the Court of Appeals

decision is inconsistent with the Third Circuit's decision in

Galda v. Rutgers, 772 F.2d 1060 (3d Cir. 1985), cert. denied,

475 U.S. 1065 (1986) ("Galda"). However, the facts in Galda

were entirely different. Most notably, New Jersey PIRG was

15. Indeed, these interests would satisfy the compelling state interest

standard, if it were applicable here. See supra, footnote 14.

16. Plaintiffs’ attack on the Court of Appeals’ method for ensuring

germaneness is premature, since the precise procedure will be

determined by the district court on remand (App. 25A-26A).

15

—

funded with a separate fee and not as part of the forum created

by Rutgers’ general student activity fee. In contrast, NYPIRG

is funded out of the general student activity fee as part of the

forum.!7 This distinction is critical as the Third Circuit

explicitly declined to address the question which faced the

Court of Appeals here - "whether an organization with [New

Jersey] PIRG's philosophic outlook may be funded through the

general activities fund as are other campus organizations

representing diverse views." Galda, 772 F.2d at 1064. In

fact, the Third Circuit acknowledged, as the Second Circuit

actually found here, that for groups funded by general activities

fees, the university's role of presenting a variety of ideas might

be a sufficient reason for some infringement of First

Amendment rights. Jd. at 1067. Thus, the factual differences

between the two cases, which resulted in different outcomes,

do not amount to a conflict in the circuits and do not provide a

reason for this Court to grant a writ of certiorari.

17. The plaintiffs try to blur the factual differences between Galda and this

case by arguing that NYPIRG's funding is different from the funding of

other student groups at SUNY Albany and, thus, more like the separate

fee in Galda. This argument fails because NYPIRG's funding is not

dissimilar to the funding of other student groups at SUNY Albany (see,

supra, p. 5).

ee

16

CONCLUSION

The allocation of a portion of the mandatory student

activity fees to NYPIRG at SUNY Albany is constitutional

because, as the Court of Appeals correctly found, the

Regulation is content-neutral and the funding serves substantial

State interests which would be achieved less effectively absent

the Regulation. For the reasons set forth above, it is

respectfully submitted that the petition for writ of certiorari

should be denied.

June 1.5, 1992

Respectfully submitted,

Alexander R. Sussman

Counsel of Record

Fried, Frank, Harris, Shriver

& Jacobson

(A Partnership Including

Professional Corporations)

‘ ne New York Plaza

New York, New York 10004

(212) 820-8000

Attorneys for Respondent

New York Public Interest

Research Group, Inc.

Of Counsel:

Jocelyn Lee Jacobson

APPENDIX

1D

APPENDIX D

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

x

THOMAS W. CARROLL, et. al.,

Plaintiffs, : OPINION AND

: ORDER

- against - : 83 Civ. 1272 (RO)

DONALD M. BLINKEN, et. al.,

Defendants.

2D

APPEARANCES

) for Plaintiff

Atlantic Legal Foundation, Inc.

205 East 42nd Street, 9th Floor

New York, New York 10017

Of Counsel: Martin S. Kaufman

Milbank, Tweed, Hadley & McCloy

One Chase Plaza

New York, New York 10005-1413

Of Counsel: Andrew Citron

Attorneys for State Defendants

Robert Abrams

Attorney General of the State of New York

120 Broadway

New York, New York 10271

Of Counsel: Andrea Green

State University of New York

Office of University Counsel

State University Plaza

Albany, New York 12246

Of Counsel: Gerianne Jordan

3D

Attorneys for Defendant NYPIRG

Fried, Frank, Harris, Shriver & Jacobson

One New York Plaza

New York, New York 10004

Of Counsel: Alexander R. Sussman

Karen L. Morris

Laurence E. Wiseman

New York Lawyers for the Public Interest

30 W. 21 Street

New York, New York 10010-6905

Of Counsel: Marla G. Simpson

4D

OWEN, District Jud

This action was tried before me without a jury

over six days in October and November 1989. Plaintiff, a

student at the New York State University at Albany,' attacks as

unconstitutional the allocation to the New York Public Interest

Research Group ("NYPIRG"), of $3 from his $53 mandatory

1 After the trial was concluded, but before an opinion had been

rendered, defendants moved to dismiss on the ground that the action had

become moot because plaintiff Michael McChesney, who at the time of trial

had been a student in good standing at SUNY Albany, had subsequently been

academically dismissed. According to SUNY Albany policy, a student who

has been dismissed for academic reasons can apply for reinstatement at any

time. Although McChesney has not yet applied for readmission, he may

choose to do so, and it is reasonable to expect that he would then again raise

the same claim which was fully litigated in the trial before me. Thus, I find

that this claim is “capable of repetition yet evading review,” Honig v. Doe,

484 U.S. 305, 318 (1988); Murphy v. Hunt, 455 U.S. 478, 482 (1982), and

is not moot.

In addition to McChesney, Thomas Carroll, Robert Carroll, Craig

Rucker, Emanuel Panos, Beth Turkovic, Edward Priola and Robert

Schmidlin, former students at SUNY Albany who graduated before trial, are

also named as plaintiffs and seck damages. The trial was bifurcated and only

the injunctive claims of McChesney were tried. Plaintiff now moves to add

three new plaintiffs, Christine McClellan, Christopher Sandor and Susanne

Zeigler, all of whom are currently undergraduates at SUNY Albany and all

of whom seek to raise the same core issue raised by McChesney and tried by

this Court. Because these parties assert a right to relief arising out of the

same transaction or occurrence out of which McChesney sues and involve

the same questions of law and fact, plaintiff's request is granted.

Fed.R.Civ.P. 20.

The named SUNY defendants are Donald Blinken in his capacity as

Chairman of the Board of Trustees of the State University of New York; the

individual members of the SUNY Board of Trustees in their capacity as

trustees; D. Bruce Johnstone in his capacity as Chancellor of SUNY; and

Vincent O'Leary in his capacity as President of SUNY Albany. Certain of

the original named defendants who were sued in their official capacities

ceased to hold office during the pendency of this action and have been

succeeded by the current incumbent trustees and administrative officers of

SUNY, pursuant to Fed.R.Civ.P. 25(d).

5D

student activity fee payable each semester.” The total $53 fee

funds a great number of student activities which, having first

met SUNY's criteria under regulations adopted pursuant to

New York's Education Law § 355,° are then voted on by the

Student Association and must thereafter be approved and

certified by the President of the University. Under the

foregoing, a wide array of student groups receive funding

including sporting clubs, language clubs, the Black Alliance,

the Revisionist Zionist Alternative, the Feminist Alliance, the

Pan-Carribean Association, Fuerza Latina, the Gay and

Lesbian Alliance, and the Student Association of the State

University.

2 If the students approve payment of the student activity fee on a

mandatory basis, every student is required to pay the fee for each term he or

she is registered; failure to pay the mandatory student activity fee may result

in denial of registration, unless it is determined that payment of the fee may

cause a particular student undue hardship. § 302.14(c). During the relevant

period, the SUNY Albany undergraduate student body voted to collect the

student activity fee on a mandatory basis.

3 The regulation, 8 N.Y.C.R.R. § 302.14, requires that the allocations

benefit the campus community and are consistent with the following criteria:

(i) programs of cultural and educational enrichment;

(ii) recreational and social activities;

(iii) tutorial programs

(iv) athletic programs, both intramural and intercollegiate;

(v) student publications and other media;

(vi) assistance to recognized student organizations, provided that

the purpose and activities of the organization are of

educational, cultural, recreationa! or social nature; ...

6D

NYPIRG,* which receives the questioned $3, is

a New York not-for-profit corporation in whose activities some

nineteen New York State University campuses participate and

from whose campuses its Board of Directors - all students —

come by student election. NYPIRG provides an opportunity

for students to gain experience in citizenship and advocacy

skills through research and active participation in public policy

issues. It endeavors to identify and evaluate issues involving

public decisions in New York State, conducts research on such

issues, makes recommendations for public action, provides

representation before governmental agencies, and seeks to

promote reform through legislative and legal action. NYPIRG

does not endorse or support campaigns for elective office. It

operates through local chapters on the campuses of those State

Universities which participate. NYPIRG's Board of Directors

and its officers are all students, elected from the campuses at

which a local NYPIRG chapter is a student organization and

receives activity fee funding. Any activity fee-paying student

at such a campus is eligible to run for election to the NYPIRG

Board of Directors. In recent years, one or more students from

SUNY Albany have been elected and served on the NYPIRG

Board. Some students, participating in NYPIRG's activities,

earn academic credit for their work; others participate in the

activities on a volunteer basis. In addition to those students

actively involved in organizing these various NYPIRG

programs, others serve the student body by promoting

speeches, debates, public forums, film shows, a used-book

exchange service, newspaper recycling centers, conservation

tips, and consumer service handbooks. SUNY Albany has had

students who participated in a small claims court assistance

clinic through which the students assisted community residents

in court. Students at SUNY Albany have conducted surveys

on the drinking age, proposed tuition hikes, comparative prices

4NYPIRG is unusual in one respect in that since it involves other

campuses, it is specifically voted upon by the student body at large of SUNY

Albany every four years. It has always been approved.

nat lat

Fe Ae mn A RN i a te Sk am RR cE TO EL LE TUG Bi Ee LT Seated _

eee

See,

of various products at area supermarkets, services available to

rape victims, local beverage stores’ compliance with the bottle

return law, and local drug stores’ compliance with generic drug

legislation. They have prepared and disseminated reports on

local bank practices and services, and local taxicab overcharge

problems. They formed a project to improve campus lighting

and other safety features. Other NYPIRG projects on which

students from SUNY Albany work include research on the

impact of toxic waste dumping, along with efforts to identify

and clean up local sites near the campuses; voter registration

drives; research and advocacy efforts concerning food

irradiation; and research and advocacy efforts directed at

government accountability and ethics. Students have

researched issues including the statute of limitations in toxic

exposure cases, the state's policy regarding its holdings in

banks or companies doing business in South Africa, the

transportation of nuclear waste, the rising costs of local

utilities, the shortage of high-quality child care, the pending

reauthorization of federal higher education costs, higher

education financial aid programs, and various proposals to

raise SUNY tuition, and the escalation of the arms race, all of

which issues became the subject of NYPIRG-sponsored

speeches, public forums and/or public debates on the public

SUNY campus.

Each of these projects is selected annually by the

NYPIRG Board of Directors, which, as observed earlier,

consists wholly of students from the many local chapters

throughout the state. Continuing projects are subject to annual

reauthorization. In addition, any fee-paying student at a

campus may advocate a proposal for a new project and submit

it to the student Board of Directors for approval at any time.

Each year the NYPIRG board specifically reviews and adopts a

legislative program for the up-coming legislative session. The

local and statewide projects and activities approved by the

NYPIRG board involve students in numerous research,

advocacy and public service matters of concern at the Albany

8D

campus. Participating students in each area learn about their

chosen project; prepare reports, memoranda and press releases;

practice public survey techniques; involve themselves in

community service efforts; obtain experience in public

speaking; sponsor debates; and communicate with their

legislative representatives.

It is clear from the testimony at the trial,

whether the witness was the college president or a NYPIRG

board member, that this experiential opportunity is regarded as

a substantial educational benefit to students at SUNY Albany,

and indeed, such would appear to be self-evident. On each

campus, NYPIRG employs a legislative director. The

director's responsibility at SUNY Albany, for example, is to

train students in speaking, writing, research, organization and

advocacy skills as well as exploring and advocating new

project areas. Instruction in these projects is not only

supervised by the campus directors, but also by NYPIRG's

executive director, its student Board of Directors and its

executive committee. The project creativity staff overseeing

this operation is located in two statewide support offices, one

in New York City and one in Albany. These offices and the

campuses have some 60 paid full-time non-student staff,5 who

receive approximately 54% of NYPIRG's annual budget of

around $2.7 million. Approximately 30% of this money comes

SNYPIRG's publication “Agenda for Citizen Involvement” states their

purpose as follows:

NYPIRG's professional staff works to shape public policy and develop

citizenship skills in the areas of consumer protection, government and

corporate accountability, and economic and social justice. Some 15 of

these are registered lobbyists who, among other things, lobby state

legislators and governmental officials sometimes in company with and

sometimes not, but only on behalf of positions taken by NYPIRG's

student Board of Directors. NYPIRG's Board of Directors annually

fashions a “Legislative Program.”

from student activity fees, 45% from door-to-door canvassing,

15% from commissions on NYPIRG's fuel buyers groups, and

10% from grants.

Through the student activity fee, SUNY Albany,

as has been pointed out, funds a wide array of student groups

and has created a diverse forum for public discussion and

debate on issues that affect our country. College campuses

should, can and do play a vital role in promoting such debate

_ and training undergraduates to become concerned, involved

* public citizens. By allocating a portion of the student activity

fee to NYPIRG, SUNY Albany creates an opportunity for

those students who so choose,® to enhance their civic

awareness and skills. Simultaneously, by allocating funds to

other student organizations, SUNY Albany encourages those

students who do not choose to join NYPIRG to develop other

skills or engage in activities which focus on other issues. The

SUNY Albany administrators have determined that NYPIRG

provides substantial educational opportunities for students,

consistent with the criteria laid out in the State regulations, and

that conclusion is well supported by the record.

Plaintiff argues that NYPIRG is a political action

group’ with only an incidental educational component and that

the decision by the SUNY Albany trustees and administrators

to permit funding of NYPIRG from the mandatory student

6At SUNY Albany alone, some 60 students are regularly active at all

times and some have been involved as legislative interns and directors. As

observed, SUNY-Albany is but one of nineteen participating universities in

New York State.

7 Plaintiff obviously disagrees with some of the positions taken by his

fellow undergraduates, but he is at liberty to participate in the annual

decision-making (see below) and urge positions he wishes to espouse for an

upcoming year. Thus, NYPIRG should be viewed not for the positions it in

fact takes but — as the administration sees it — for the opportunity it gives

students to take positions and then gain experience in pressing for them.

10D

activity fee is not primarily or genuinely an academic decision.

Testimony at trial belies plaintiff's claim. The fact that some

of NYPIRG's activities involve issues of public policy does not

diminish its educational value. The educational value lies in

the participatory civics training obtained by the students who

take advantage of this opportunity. The SUNY Albany

administrators, having determined that a valuable part of an

undergraduate education is gained through direct “hands on"

involvement in civic activities, that determination is entitled to

deference. See Regents of the University of Michigan v.

Ewing, 474 U.S. 214, 226 (1985); Regents of the Univ. of Cal.

v. Bakke, 438 U.S. 265, 312 (1978); Keyishian v. Board of

Regents, 385 U.S. 589, 603 (1967); Sweezy v. New Hampshire,

354 U.S. 234, 250, 263 (1957). This determination is the type

of academic decision that is best left to administrators and

trustees with expertise in designing college and university

curriculum and extra-curricular activities.

Moreover, the freedom of the University to

determine its educational mission, consistent with the

professional judgment of those who guide it, is itself an interest

which the First Amendment protects, particularly when that

determination fosters debate on public issues. See New York

Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). College

campuses play a central role in providing an open forum for

debate. See, Widmar v. Vincent, 454 U.S. 263, 267-68 n.5

(1981); Healy v. James, 408 U.S. 169, 180 (1972) ("The

college classroom with its surrounding environs is peculiarly

the ‘marketplace of ideas'"). By. funding over 100 diverse

student organizations, SUNY has established such a forum.

In analyzing plaintiff's First Amendment claim,

plaintiff's individual interest in wishing not to contribute a

portion of his mandatory fee to NYPIRG must be balanced

against the University's interest in providing all students with

the opportunity to engage in a wide range of activities and

creating a forum for discussion. In addition to plaintiff's

interests, One must consider the rights of the large number of

students who voted for, participate in, and support NYPIRG,

as well as the right of the student body as a whole to receive

information through the exchange of ideas. Where the State

spends money to expand public debate, and does so on a

content neutral basis,® the Constitution does not provide those

individuals contributing to State funds contre! over the

allocation of their contribution. Buckley v. Valeo, 424 U.S. 1,

92-93 (1979). Plaintiff's payment of the student activity fee,

just like taxpayers’ contributions to the government's general

funds, may permissibly be used to fund political action and

speech, despite some individuals’ opposition to the views

espoused through such action. See Buckley at 92-93; Regan v.

Taxation with Representation, 461 U.S. 540, 548 (1983).

In order to establish a First Amendment claim of

compelled speech or association, plaintiff must demonstrate a

close association between himself and the political speech with

which he disagrees. See West Virginia State Board of

Education v. Barnette, 319 U.S. 624 (1943); Wooley v.

Maynard, 430 U.S. 705 (1977); Pacific Gas & Electric Co. v.

Public Utilities Commission, 475 U.S. 1 (1986). Absent a

close identification, no First Amendment interest is implicated.

Pruneyard Shopping Center v. Robins, 447 U.S. 74, 87 (1980);

Widmar v. Vincent, 454 U.S. 263, 274 (1981). In Barnette,

the Court struck down a school requirement compelling

students to stand up and recite the pledge of allegiance. In

Wooley, the Court found unconstitutional a state statute

requiring an individual to publicly display a license plate motto

that offended his religious beliefs. In Pacific Gas & Electric,

the Court prohibited a requirement that the utility company

8 The University funds a wide range of organizations without

considering what the groups’ positions are on particular issues. NYPIRG,

itself, exists to afford student the opportunity to take positions, whatever they

may be. NYPIRG does not present students with fixed positions that the

students must accept.

12D

include political messages with which it disagreed in its billing

envelopes. In each of these cases the objecting party was

required to personally speak or carry a banner with which he

disagreed. The connection between the objecting party and the

objectionable speech was extremely close. In contrast, the

SUNY Albany student who disagrees with a NYPIRG position

is not himself compelled to speak out and voice NYPIRG's

views, rather he is required only to contribute a fee to a

general fund, out of which NYPIRG is but one group that is

funded.? The connection between plaintiff and any one view or

organization funded by the activity fee is attenuated. The fee

supports over 100 diverse groups, and the contributions of the

fee are paid by several thousand students. Thus, no close

association exists between plaintiff and NYPIRG, and

plaintiff's First Amendment rights are not infringed.!°

In addition to the concern that an individual may

be forced to utter an opinion with which he disagrees,

compelled speech cases also raise the concern that an individual

who wishes to remain silent may be forced to speak in order to

counter a view with which he is unwillingly associated. For

example, in Pacific Gas & Electric, the Court held that the

obligation to include within its envelope a message with which

the company disagreed constituted such a high degree of

identification that the utility company might feel obliged to

respond to the positions with which it disagreed in order to

distance itself from those views. In contrast, because the

activity fee is paid by thousands of students and supports over

one hundred diverse groups, no risk arises that plaintiff will

feel compelled to respond to the views of NYPIRG by

9 The fact that NYPIRG erroneously states in certain of its materials

that it represents all students on its participating campuses, is not

determinative on this issue.

100n plaintiff's theory, a student could unilaterally reduce his

contribution to the student activity fund by a pro-rata deduction after

determining all the organizations with whose goals he or she disagrees.

13D

presenting counter viewpoints. If plaintiff is truly troubled he

may obtain on demand a writing from NYPIRG making explicit

his disassociation. Indeed, counter viewpoints are already

present in the forum, espoused by those groups which do not

share NYPIRG's positions. Plaintiff is free to remain silent

and let others speak on the various sides of an issue or,

alternatively, plaintiff may choose to join one of these other

organizations. Yet another option available to plaintiff is to

join NYPIRG himself and vote for it to take a stand on an issue

which satisfies him.

This case is also distinguishable from Abood v.

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

progeny, including Ellis v. Brotherhood of Railway, Airline &

Steamship Clerks, 466 U.S. 435 (1984), Chicago Teachers

Union v. Hudson, 475 U.S. 292 (1986), and the recent

Lechnert v. Ferris Faculty Association, __ U.S. __ , 111 S.Ct.

1950, 59 USLW 4544 (1991), upon which plaintiff relies.

These cases address compulsory payments to unions where the

funds are used in part to support political speech or action with

which the objectors disagree. In the Abood line of cases, the

Supreme Court permits mandatory payments to unions so long

as those payments go toward activities related to the collective

bargaining process - even if objectors disagree with those

activities. However, the Court disallows the use of mandatory

fees to support activities that are unrelated to the union's

collective bargaining functions. The union cases are

distinguishable from the present case for two principal reasons.

First, in the union context, fees are paid to only one source -

the union - which claims to speak in behalf of all the

employees; a dissenting employee has no other mouthpiece

through which he may make his opinion heard. In contrast, as

stated above, on the SUNY Albany campus, the activity fee

funds a forum created for the purpose of fostering the

expression of diverse views through a wide range of groups,

and plaintiff is not directly associated with NYPIRG or any

other single group with which he disagrees. Secondly, in the

14D

union cases, dues may permissibly be used only to fund

activities which form the core purpose of the union, namely

collective bargaining. Here, the student activity fee is being

used by SUNY Albany precisely to further the University's

core educational purpose of maintaining a broad extracurricular

program and an open forum for discussion and debate. See

Kania v. Fordham, 702 F.2d 475, 480 (4th Cir. 1983).

Plaintiffs also cite Galda v. Rutgers, 772 F.2d

1060 (3d Cir. 1985), cert. denied, 475 U.S. 1065 (1986), in

which the Third Circuit struck down Rutgers’ separate

mandatory fee used to support the New Jersey Public Interest

Research Group (NJPIRG). However, in Galda, the Court

limited its analysis, stating, "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."

772 F.2d at 1064. This, slender though it is, distinguishes that

case from the one before me, and I feel more applicable here is

Judge Adams’ dissent, in which he states that "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." 772 F.2d at 1073 n.7.

Plaintiff, arguing the “least intrusive means" position, contends

that the same civic training could be obtained by a student from

fora and community activities operating locally and separately

on each of the campuses involved. But obviously, none of

these efforts could be as effective if NYPIRG worked only as a

single-campus organization rather than, as currently

constituted, with branches on several different campuses.

Further, the experience gained by the students could not

possibly be as meaningful, if the students merely engaged in

play-acting, rather than becoming involved in actual research

and advocacy efforts on real issues of public concern.

15D

Accordingly, for the reasons stated above, I find

that SUNY Albany's funding of NYPIRG through the

allocation to it of $3 from plaintiff's mandatory student activity

fee does not impermissibly infringe upon plaintiff's First

Amendment rights. Plaintiff's claim for injunctive relief is

accordingly denied and the action is dismissed. The foregoing

constitutes the Court's findings of fact and conclusions of law

and is so ordered.

July 30, 1991