# Petition for Writ of Certiorari — Hollingsworth v. Lane Community College

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 941

## Text

Suprens Cont, U8 .
FILED

00 745 Nov - 7200
INO. ore OF THE CLERK

In the
Supreme Court of the United States

+

WILLIAM G. HOLLINGSWORTH; LISA R.
HOLLINGSWORTH; and JEFFREY D. FERNANDES,

Petitioners,

Vv.

LANE COMMUNITY COLLEGE; LANE COMMUNITY
COLLEGE BOARD OF EDUCATION; JERRY MOSKUS in his
official capacity as President of Lane Community College; and
LINDA P. FOSSEN in her official capacity as Vice President
for Student Services of Lane Community College,

- Respondents.

7 ™
a.

On Petition for Writ of Certiorari to the United States Court
of Appeals for the Ninth Circuit

-s
J

PETITION FOR WRIT OF CERTIORARI

7
a

RUSSELL C. BROOKS ANTHONY T. CASO

'* Of Counsel Counsel of Record

TIMOTHY M. HARRIS SHARON L. BROWNE
Pacific Legal Foundation Pacific Legal Foundation
10940 NE 33rd Place, Suite 109 10360 Old Placerville Road, Suite 100
Bellevue, Washington 98004 Sacramento, California 95827
Telephone: (425) 576-0484 Telephone: (916) 362-2833
Facsimile: (425) 576-9565 Facsimile: (916) 362-2932

Counsel for Petitioners

140 pe

i
QUESTION PRESENTED

Is the rule of viewpoint neutrality that this Court
formulated in Board of Regents of the University of Wisconsin
System v. Southworth, 120 S. Ct. 1346 (2000), violated when
the funding of individua: political and ideological student
groups depends upon the majority determinations of student
referenda?

il
PARTIES TO THE PROCEEDING

At the time they filed this action, William G. and Lisa R.
Hollingsworth and Jeffery D. Fernandes were students at Lane
Community College. Lane Community College included in the
fees that it required these students to pay as a condition of
attending class a special assessment to fund the political and
ideological advocacy of the Oregon Student Public Interest
Research Group (OSPIRG). This special assessment was
imposed on all students as a result of student referenda in 1990,
1993, and 1996.

Lane Community College (the College) is a public
community college established pursuant to the laws of the State
of Oregon. The College’s Board of Education (the Board of
Education) is established pursuant to the laws of the State of
Oregon. The Board of Education is responsible for the general
supervision and control of the College, including ultimate
responsibility for determining the amount and purpose of and
for authorizing the collection of mandatory student fees. Jerry
Moskus is President of the College and has ultimate
responsibility for the administration of the College. Linda P.
Fossen is the Vice President for Student Services of the College
and is responsible for the student registration process, which
includes levying mandatory student fees. Ms. Fossen is also
responsible for overseeing the disbursement of fees to student
organizations at the College.

TABLE OF CONTENTS

Page

QUESTION PRESENTED .............................. i
PARTIES TO THE PROCEEDING ...................... ii
NT OE oo nods ope cecccccceccscun. v
oo, SSE l
on tee nll UCL OE PEP CE PERE re ee l
CONSTITUTIONAL PROVISIONS ATISSUE ............ 2
STATEMENT OF THECASE .......................... 2
A. The College’s Funding Process ................. 2

B. The District Court Decision.................... 7

C. The Ninth Circuit Decision .................... 7
REASONS FOR GRANTING THE WRIT ................. 9

I. THIS COURT SHOULD GRANT THE WRIT OF
CERTIORARI TO RESOLVE SIGNIFICANT
CONFLICT AND CONFUSION AMONG THE
wpe cnn anh CELE EES Eee POUT CT 9

A. The Order of the Ninth Circuit Refusing to
Remand the Referendum Issue Conflicts with a
Recent Remand of the Same Issue by the
Seventh Circuit Court of Appeals and with an
Opinion of the Third Circuit Court of Appeals sece

B. The Ninth Circuit’s New Ripeness Requirement
in This Case Also Significantly Conflicts with
the Seventh and Third Circuit Courts of Appeals vs Os

ll. THIS COURT SHOULD GRANT REVIEW
BECAUSE THE NINTH CIRCUIT DECISION
REGARDING AN IMPORTANT FEDERAL
QUESTION CONFLICTS WITH A RELEVANT
DECISION OF THIS COURT .................... 14

iv

TABLE OF CONTENTS—Continued

A. The College’s Use of Student Referenda to
Allocate Fees to Political and Ideological
Student Organizations Is Not Consistent with the
Principle of Viewpoint Neutrality Announced by
This Court in Southworth IT ..........0. 0000 0es 16

B. The Funding Decision in This Case Was Made
by a Student Referendum Suggested as Likely
Unconstitutional by This Court in Southworth II .. 18

C. The College’s Use of Student Referenda
to Determine Funding for OSPIRG Is
Unconstitutional Because It Is Not
PR EEN 69:6 bas badicdiacdeavesiunce 21

CONCLUSION .......ccccccccccecs DRAG OE Aree 24

Vv

TABLE OF AUTHORITIES
Page
Cases
Abood v. Detroit Board of Education,
CUR POT Mice 11-12, 16
Berner v. Delahanty, 129 F.3d 20 (Ist Cir. 1997) ......, 11

Board of Regents of the University of Wisconsin System v.
Southworth, 529 U.S. 217, 120S.
Ct. 1346 (2000) ...... 1, 8-9, 11-13, 15-18, 20-21, 23-24

Galda v. Rutgers, 772 F.2d 1060 (3d Cir. 1985) 12-14, 21-23

Grossbaum v. Indianapolis-Marion County Building
Authority, 100 F.3d 1287 (7th Cir. 1996) ........... 11

Hollingsworth v. Lane Community College, No. 97-3545] ‘
1999 U.S. App. LEXIS 5391 (9th Cir. Mar. 24, 1999) .. |

Keller v. State Bar of California,
RE sabes 8, 11-12, 16-17

Southworth v. Board of Regents of University of
Wisconsin System, Nos. 97-3510 and 97-3548,
2000 U.S. App. LEXIS 15470 (7th Cir.

suc eiiases. one: MEE Ee Te Pere 10-13
Southworth v. Grebe, 151 F.3d 717, reh’g denied,
157 F.3d 1124 (7th Cir. eo Ee ea EE 8
United States Constitution
egastps esis: sna EET OLE OT 2

vi

TABLE OF AUTHORITIES—Continued

Page

Statutes
BULL. 41D wccviscitianidneeee 2
SON visdanddnkcbedecdackers eee
6 SOGIAII 6. App. F-62-64, Declaration of Mark T. Gallagher in Support of
Plaintiffs’ Motion for Summary Judgment.

* App. F-63.
5 Id.

® App. F-62-64. Mandatory funding for OSPIRG was approved by
student referenda in 1990, 1993, and 1996. App. E-4, Findings and
Recommendation. In 1990, the majority of the College students
voted to increase the mandatory student fee by $2 per student, per
term with the additional $2 to be used solely to fund OSPIRG. /d.
In 1993, the mandatory funding of OSPIRG was reaffirmed by a
student referendum. /d. In 1996, a majority of the students voted to

(continued...)

4

allocated to OSPIRG, the mandatory fee includes a $5
assessment for child care: $6 for student health; $5 for
recreation; and, finally, $5 for cultural activities and other
expenses.’ With the exception of OSPIRG, which is segregated
as a separate “service,” all other student groups compete for
funding from the $5 allocated to cultural activities and other
expenses.* This $5 mandatory fee finances groups such as the
Native American Student Association, the Black Student
Union, the Lane Computer Society, Students of Multi-Cultural
Ethnicity, the Nursing Club, the Alumni Association, the Lane
Writers Club, the Latino Club, and the Islamic Club.’ For
example, the Native American Student Association receives 5%
of that $5, or a total of twenty-five cents per student per term.'°
The funds collected from this $5 portion of the fee are
deposited in the ASLCC Mandatory Fee Account."' Student
groups then receive reimbursement for approved expenditures. '”
Unlike the procedure followed for other student groups, the
special assessment for OSPIRG is disbursed directly to

® (...continued)
increase funding for OSPIRG from $2 to $2.25 per student, per term,
for a total mandatory student activity fee of $23.25. Id.

’ App. F-62-64, Declaration of Mark T. Gallagher in Support of
Plaintiffs’ Motion for Summary Judgment.

® App. E-4-5, Findings and Recommendation.
° App. E-5.

0 App. F-62, Declaration of Mark T. Gallagher in Support of
Plaintiffs’ Motion for Summary Judgment.

'"! App. E-7.

2 App. F-58, Declaration of Mark T. Gallagher in Support of
Plaintiffs’ Motion for Summary Judgment.

5

OSPIRG by the College’s finance department.'? The College
has no procedure for tracking how OSPIRG spends this
money. '4

In order to receive funding via this separate assessment
method, OSPIRG filed an application with the Director of
Student Activities at the College.'® OSPIRG then had to seek
funding approval from the College’s Board of Education."
More importantly, even though approved by the Board of
Education, the funding process required OSPIRG to
subsequently secure funding approval from the students at the
College via a student referendum.’ This step is important
because it insulates OSPIRG’s fee from competition by other
Student groups. By using this process, OSPIRG’s special
assessment is imposed for the sole benefit of OSPIRG.
Although no further action of the student government can
reduce the amount that OSPIRG will receive from mandatory
fees, funding approvals are not permanent.’* Instead, funding
must be approved every three years by a majority of the
Students, and existing funding can be cancelled by a majority
student vote.'? At this election, the political and ideological

'S App. E-7, F indings and Recommendation.

Td.

'* App. G-4, Second Affidavit of Barbara Delansky.
~

7 App. G-4-5,

'* App. E-3-4, Findings and Recommendation.

'? App. E-4.

6

activities of OSPIRG are touted explicitly as a basis on which
students should vote to continue funding.”

Students at the College first approved the special
assessment for OSPIRG in the form of a $2 per student, per
term, increase in the fee during the 1990 student elections.”!
The College used this increase in the mandatory fee solely to
fund OSPIRG through the special assessment.”* Students
reaffirmed mandatory OSPIRG funding in the 1993 and 1996
student referenda. In the 1996 student referendum, the
students approved an increase in the special assessment set
aside specifically for OSPIRG from $2 to $2.25.% Funding for
OSPIRG as a result of student referenda now accounts for
almost 10% of the total mandatory student activity fee of
$23.25.25 Indeed, during the period of February, 1991, to
January, 1996, OSPIRG received $262,598 from its special
assessment at Lane Community College.”*

OSPIRG uses its special assessment to engage in its own
unique political and ideological speech and activities. OSPIRG
is an advocacy group actively engaged in promoting the social
and political changes it believes are necessary. For example,
OSPIRG began a grassroots lobbying campaign by soliciting
postcards urging United States Representative Peter DeFazio to

20 App. E-4, Findings and Recommendation.

= @.

= id.

2 App. G-2, Second Affidavit of Barbara Delansky.
* App. E-4.

23 App. C 4.
26 App. E-7, Findings and Recommendation.

7 “

Support the Clean Water Enforcement and Compliance
Improvement Amendment Act of 1991.27 OSPIRG directed its
energy toward blocking corporate sponsorship of events
occurring during the 25th anniversary of Earth Day.” OSPIRG
also informed Congress that students would not support the
Republican Party’s “Contract with America.”

B. The District Court Decision

The district court decided this case on cross motions for
summary judgment. The court recognized the burden on the
students’ First Amendment rights:

Students cannot pay the ASLCC student activity fee

without a portion being allocated by LCC to

OSPIRG, and individuals cannot participate as

students at LCC without paying the full fee, except

under certain conditions.” Z

The district court applied intermediate scrutiny to find
that OSPIRG furthered the College’s “substantial interest in

education.” Thus, the court held that the College could compel
Petitioners to fund all of OSPIRG’s activities.;!

C. The Ninth Circuit Decision

On March 24, 1999, the Ninth Circuit issued its decision
affirming the judgment of the lower court. In the course of that
opinion, the court recognized that a majority vote of the student

27 App. E-6.

8 App. F-36, Declaration of Mark T. Gallagher in Support of
Plaintiffs’ Motion for Summary Judgment.

° App. E-6, Findings and Recommendation.
3° App. E-3.

31 App. E-12-13.

8

body determines funding allocations at the College.*? However,
the court concluded that because the College articulated
substantial government interests supporting the mandatory
funding scheme, and because the funding scheme was germane
to the College’s mission within the meaning of Keller v. State
Bar of California, 496 U.S. 1, 13 (1990), the College’s scheme
complied with the requirements of the First Amendment. App.
A at 5.

As the parties litigated this case in the Ninth Circuit, the
Seventh Circuit Court of Appeals also considered the issue of
whether a college may use mandatory student fees to fund the
political and ideological speech of student groups. Southworth
v. Grebe (Southworth I), 151 F.3d 717, reh’g denied, 157 F.3d
1124 (7th Cir. 1998), rev'd sub nom. Board of Regents of the
University of Wisconsin System v. Southworth (Southworth II),
529 U.S. 217, 120 S. Ct. 1346 (2000), involved a challenge to
the University of Wisconsin’s funding of various political
groups, including the Wisconsin Student Public Interest
Research Group (WISPIRG). The Seventh Circuit concluded
that even if the funding of private political and ideological
organizations is germane to the university’s mission, the
corresponding burden on students’ free speech rights
outweighed the governmental benefit. As a result, that court
concluded that the university could not use mandatory student
fees to fund the political and ideological activities, speech, and
advocacy of groups such as WISPIRG. Southworth I, 151 F.3d
at 732-33.

On March 29, 1999, this Court granted a petition for writ
of certiorari in Southworth I. On April 5, 1999, Petitioners in
this case filed a Petition for Rehearing and Suggestion for
Rehearing En Banc pending the resolution of Southworth II.
On March 22, 2000, this Court issued its opinion in Southworth

2 App. A-4, Memorandum.

9

Hl, holding that “the principal standard of protection for
objecting students . . . is the requirement of viewpoint neutrality
in the allocation of funding support.” Southworth IT, 120 S. Ct.
at 1356. The Ninth Circuit then directed each party to this
action to file a supplemental brief regarding the correct
disposition of this case upon further consideration in light of
Southworth II. After reviewing this Court’s ruling in
Southworth II, the Ninth Circuit concluded that, since the
students did not establish that any referendum seeking funding
for a political or ideological student group had ever failed, the
referendum process at the College protected viewpoint
neutrality.** Based on this determination, the Ninth Circuit
denied the Petition for Rehearing and Suggestion for Rehearing
En Banc on August 18, 2000. This Petition for Writ of
Certiorari follows.

REASONS FOR GRANTING THE WRIT
I

THIS COURT SHOULD GRANT THE
WRIT OF CERTIORARI TO RESOLVE
SIGNIFICANT CONFLICT AND
CONFUSION AMONG THE CIRCUITS

The Ninth Circuit expressly recognized that the fee
allocation at the College is made by vote of the student body.
See App. A-4. Yet, the Ninth Circuit upheld the College’s
funding procedure because the scheme was “germane” to the
College’s substantial governmental interests in education. App.

3 See App. B, Order Denying Petition for Rehearing and Rejecting
Suggestion for Rehearing En Banc (“[W]e conclude that remand is
not required to determine whether the referendum process at Lane
Community College protected viewpoint neutrality because it is
undisputed that no request was ever denied.”). App. B-2.

10

A-5. Moreover, the Ninth Circuit went so far as to create a new
ripeness requirement for First Amendment claims which
requires students to subject their speech to majority approval
before bringing a legal challenge to the funding process.™ In so
holding, the Ninth Circuit stands in conflict with decisions of
both the Seventh and Third Circuit Courts of Appeals.

A. The Order of the Ninth Circuit Refusing to
Remand the Referendum Issue Conflicts with a
Recent Remand of the Same Issue by the Seventh
Circuit Court of Appeals and with an Opinion of
the Third Circuit Court of Appeals

Applying this Court’s viewpoint neutrality standard
announced in Southworth II, the Seventh Circuit noted that a
referendum method of distributing student activities fees likely
violates the First Amendment rights of students. Southworth v.
Board of Regents of University of Wisconsin System
(Southworth III), Nos. 97-3510 and 97-3548, 2000 U.S. App.
LEXIS 15470, at *8 (7th Cir. June 23, 2000). Because the
record was not clear on the referendum process in that case, the
Seventh Circuit remanded the issue to the district court for
further development and examination. /d. at *9. The Ninth
Circuit departed from the Seventh Circuit in this case by
utilizing the “germaneness” test that this Court held was
unworkable when applied to compelled student fees. Thus, the
Ninth Circuit’s opinion in this case conflicts with the opinion
of the Seventh Circuit applying the proper viewpoint neutrality
standard.

_ Rather than rely upon viewpoint neutrality as a guiding
principle, the Ninth Circuit applied a test that considered
whether substantial interests supported the College’s funding
scheme and whether the funding was “germane” to the

* Id.

11

College’s substantial interests.** App. A at 5. However, upon
remand from this Court, the Seventh Circuit stated in
Southworth III, “the Supreme Court made clear that to properly
protect a student’s First Amendment rights, the mandatory
student activity fees must be allocated on a viewpoint-neutral
basis.” Southworth III, 2000 U.S. App. LEXIS 15470, at *6.
Thus, the Ninth Circuit failed to apply the appropriate test.

The Seventh Circuit on remand properly directed the
district court to consider the following pertinent principles
regarding the First Amendment and the referendum process.
First, “[v]iewpoint neutrality requires that no viewpoint be
preferred, and that no one viewpoint is disadvantaged relative
to other viewpoints.” /d. (quoting Grossbaum v. Indianapolis-
Marion County Building Authority, 100 F.3d 1287, 1298 (7th
Cir. 1996)). Second,

in determining who has access to the public
forum--in this case the forum of money--those
allocating the funds cannot “pick and choose among
similarly situated speakers in order to advance or
suppress a particular ideology or outlook.”
Id. at *7 (quoting Berner v. Delahanty, 129 F.3d 20, 28 (ist Cir.
1997)).
In formulating the appropriate test for compelled student
fee cases, this Court stated:
In Abood and Keller the constitutional rule took the
form of limiting the required subsidy to speech

** The Ninth Circuit relied in part upon decisions of this Court in
Abood v. Detroit Board of Education, 431 U.S. 209 (1977), and
Keller v. State Bar of California, 496 U.S. 1. However, this Court
has held that the means of implementing First Amendment
protections adopted in those decisions are neither applicable nor
workable in the context of student speech at a university. Southworth
I, 120 S. Ct. at 1354.

12

germane to the purposes of the union or bar
association. The standard of germane speech as
applied to student speech at a university is
unworkable, however, and gives insufficient
protection both to the objecting students and to the
University program itself.

Southworth IT, 120 S. Ct. at 1355. This Court concluded “that
the University of Wisconsin may sustain the extracurricular
dimensions of its programs by using mandatory student fees
with viewpoint neutrality as the operational principle.” Jd. at
1356. The decision of the Seventh Circuit in Southworth III
correctly relied upon the viewpoint neutrality test and directed
the district court to apply the test upon remand. The Ninth
Circuit’s decision conflicts with the proper Seventh Circuit
decision by incorrectly applying the rule of Abood and Keller.

Moreover, the Ninth Circuit’s order refusing remand also
contradicts the Third Circuit Court of Appeals’ opinion in
Galda v. Rutgers, 772 F.2d 1069 (3d Cir. 1985). In Galda, the
Third Circuit concluded that the funding of the New Jersey
Public Interest Research Group (NJPIRG), which involved a
student referendum, violated viewpoint neutrality. Jd. at 1067
(“In that situation a university’s ability to insure a balance in
access is infringed, if not prevented. . . .”). Accordingly, in
contrast to the Ninth Circuit, the Third Circuit vacated the
lower court’s opinion and remanded the case to the district
court for entry of an order enjoining the assessment of
mandatory fees payable to the NJPIRG. /d. at 1068.

B. The Ninth Circuit’s New Ripeness Requirement in
This Case Also Significantly Conflicts with the
Seventh and Third Circuit Courts of Appeals

The Ninth Circuit’s decision conflicts with the Seventh
Circuit and Third Circuit by applying the wrong test. Conflict
also exists in that the Ninth Circuit created a new ripeness
requirement for First Amendment claims involving compelled

13

student fees. The Ninth Circuit refused to remand the case and
allow the district court to apply the correct viewpoint neutrality
test because “it is undisputed that no request [for funding] was
ever denied.” App. B-2, Order. No such ripeness requirement
exists in this Court’s jurisprudence.

This Court has stated:

Viewpoint neutrality is the justification for requiring
the student to pay the fee in the first instance and for
ensuring the integrity of the program’s operation
once the funds have been collected.

Southworth IT, 120 S. Ct. at 1356. A “majority rules” funding
process in itself inherently violates viewpoint neutrality
because:

[B]y voting-here via a referendum-the students
appear to make funding decisions based on the
speech of the various student groups; their votes for
funding will advance certain viewpoints, while their
votes against funding will suppress others.

Southworth III, 2000 U.S. App. LEXIS 15470, at *8-*9.
Indeed,

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.

Galda, 772 F.2d at 1067. The Ninth Circuit seems to conclude,
as did Rutgers University in Galda, that the funding process is
open to all groups and students may not complain about

14

viewpoint discrimination until a group has been denied funding.
See Galda, 772 F.2d at 1067. However,

[I]t is no answer to say that opponents may utilize
the “neutral funding” policy to support a vehicle of
their own. For example, the opponents may be small
in number . . . 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.

Id.

Thus, the Ninth Circuit’s new ripeness requirement
announced in this case conflicts with previous decisions of the
Third and Seventh Circuits. Accordingly, Petitioners
respectfully urge this Court to grant their writ of certiorari in
order to eliminate the confusion in the Ninth Circuit regarding
the question of whether viewpoint neutrality is violated by the
funding of student groups based upon majority determination.

THIS COURT SHOULD GRANT REVIEW
BECAUSE THE NINTH CIRCUIT DECISION
REGARDING AN IMPORTANT FEDERAL
QUESTION CONFLICTS WITH A RELEVANT
DECISION OF THIS COURT ;

This case raises an important question of fundamental
rights involving majority determinations made by a student
referendum in which an individual student group receives
compelled funding through the use of mandatory student fees.
The issue in this case concerns mandatory student fees imposed
by viewpoint discriminatory student referenda that the College
allocates to student political and ideological groups.

This Court has recognized that the use of mandatory
student fees to fund the political and ideological speech of

15

student groups infringes on the speech and beliefs of individual
students who object to the political and ideological aims of
those groups. Southworth II, 120 S. Ct. at 1355. Given this
infringement, this Court has concluded that students may insist
upon certain safeguards with respect to such use of their

determine which groups receive mandatory student fees violates

the principle of viewpoint neutrality.
To the extent the referendum substitutes majori ity
determinations for viewpoint neutrality it would
undermine the constitutional protection the program
requires. The whole theory of viewpoint neutrality
is that minority views are treated with the same
respect as are majority views. Access to a public
forum, for instance, does not depend upon
majoritarian consent. That principle is controlling
here.

Id. at 1357.

The College’s decision to use student referenda to
determine which groups receive mandatory student fees
substitutes majority determinations for the First Amendment
principle of viewpoint neutrality. Accordingly, this Court
should review the decision of the Ninth Circuit which upholds
the College’s funding process.

16

A. The College’s Use of Student Referenda to
Allocate Fees to Political and Ideological Student
Organizations Is Not Consistent with the Principle
of Viewpoint Neutrality Announced by This Court
in Southworth II

In Keller v. State Bar of California, 496 U.S. 1, this Court
explained that “compelled . . . contributions for political
purposes works no less an infringement of . . . constitutional
rights” than prohibitions on making contributions to
organizations for political purposes. 496 U.S. at 10 (quoting
Abood v. Detroit Board of Education, 431 U.S. at 234). This
Court’s opinion in Southworth II makes clear that these same
First Amendment rights are implicated when a public college
uses compelled student fees to fund political and ideological
groups on campus.

If the University conditions the opportunity to
receive a college education, an opportunity
comparable in importance to joining a labor union or
bar association, on an agreement to support
objectionable, extracurricular expression by other
students, the rights acknowledged in Abood and
Keller become implicated.

Southworth IT, 120 S. Ct. at 1355. The students in Southworth,
like the union members in Abood and state bar members in
Keller, were forced to fund political and ideological speech
which they found abhorrent. “We must begin by recognizing
that the complaining students are being required to pay fees
which are subsidies for speech they find objectionable, even
offensive.” /d. at 1354.

Given the importance of the First Amendment rights at
stake, certain safeguards must protect students before a college
can compel them to fund political and ideological speech with
which they disagree. “We conclude the objecting students may
insist upon certain safeguards with respect to the expressive

17

activities which they are required to support.” Jd. Specifically,
this Court held that a public college could only use mandatory
student activity fees to fund political and ideological groups if
the college allocated the funds in a viewpoint neutral manner.

The University must provide some protection to its
students’ First Amendment interests, however. The
proper measure, and the principal standard of
protection for objecting students, we conclude, is the
requirement of viewpoint neutrality in the allocation
of funding support. ... We conclude that the
University of Wisconsin may sustain the
extracurricular dimensions of its programs by using
mandatory student fees with viewpoint neutrality as
the operational principle.

Id. at 1356.*°

In Southworth II, this Court repeatedly noted that student
referenda, whereby funding for student groups depends solely
on majority determinations, was inconsistent with the principle
of viewpoint neutrality. “The student referendum aspect of the
program for funding speech and expressive activities, however,
appears to be inconsistent with the viewpoint neutrality
requirement.” Jd. at 1354. In addition, “[w]e do not sustain,
however, the student referendum mechanism of the University’s
program, which appears to permit the exaction of fees in
violation of the viewpoint neutrality principle.” Jd. at 1350.
Moreover,

It remains to discuss the referendum aspect of the
University’s program. While the record is not well
developed on the point, it appears that by majority

© Justice Souter, joined by Justice Stevens and Justice Breyer,
concurred in the judgment. Justice Souter characterized the standard
imposed by the majority on the university as a “cast-iron viewpoint
neutrality requirement.” Southworth II, 120 S. Ct. at 1357.

18

vote of the student body a given RSO [Registered
Student Organization] may be funded or defunded.
It is unclear to us what protection, if any, there is for
viewpoint neutrality in this part of the process. To
the extent the referendum substitutes majority
determinations for viewpoint neutrality it would
undermine the constitutional protection the program
requires. The whole theory of viewpoint neutrality
is that minority views are treated with the same
respect as are majority views. Access to a public
forum, for instance, does not depend upon
majoritarian consent. That principle is controlling
here.

Id. at 1357.

Although this Court remanded Southworth IT because the
record with respect to the student referendum was not well
developed, Southworth Ii makes clear that the use ofa referenda
process to base funding decisions solely on majoritarian
determinations violates the guiding principle of viewpoint
neutrality. In fact, this method of making funding decisions
conflicts with “(t]he whole theory of viewpoint neutrality,”
which ensures that “minority views are treated with the same
respect as are majority views.” Jd. Because the decision to
fund the political and ideological advocacy of OSPIRG is made
via student referendum, a referendum that explicitly considers
the political and ideological activities of OSPIRG, the College’s
funding scheme violates the principle of viewpoint neutrality.

B. The Funding Decision in This Case Was Made by
a Student Referendum Suggested as Likely
Unconstitutional by This Court in Southworth II

In this case, the record makes clear that the College
ultimately provides compelled funding to OSPIRG only upon
approval by a student referendum of the fee and OSPIRG’s

19

political and ideological activities. As the district court below
explained:

The student fee becomes mandatory only after it is
voted on and approved by the LCC student body.
On June 13, 1990, the Board approved an increase in
the activity fee from $5.00 per student per term to
$7.00 per student per term, designating the
additional $2.00 to fund OSPIRG at LCC. The LCC
student body holds a_ periodic campus-wide
referendum on the activity fee paid by students.
Prior to each of the three votes which have been held
on the issue, in 1990, 1993, and 1996, there was
publication of OSPIRG’s activities on the campus,
and there was debate among the students regarding
funding of OSPIRG.2’

Thus, in 1990, the student body at the College made the
initial decision to finance OSPIRG by a student referendum.
Students voted to increase mandatory student fees with the -
additional amount going solely to OSPIRG, a single political
and ideological group representing a single political and
ideological point of view, after debating OSPIRG’s political
and ideological activities. As a result of the 1990 election, the
College increased the mandatory student activity fee by $2.00
for the sole purpose of funding one, and only one, political and
ideological group—OSPIRG. Thereafter, the College, through
subsequent student body votes, continued using mandatory fees
to fund the political and ideological speech and activities of
OSPIRG, and also approved an increase in the funding of
OSPIRG by student vote.

By contrast, other student groups receive their funds from
a general $5 fee for cultural activities and other expenses. In
contrast to other student groups, only OSPIRG is listed as a

*7 App. E-4, Findings and Recommendation.

20

separately funded service.*® Thus, while other groups must
compete for a portion of the cultural activities fee, OSPIRG
stands alone in receiving the whole of its own segregated
portion by special assessment.

The College’s use of student referenda to determine which
groups receive mandatory fees suffers from the same
constitutional defects identified by this Court in Southworth
11° Using the College’s scheme, access to the public forum
depends entirely upon the consent of the student majority.
Under this structure, the danger exists that students do not treat
minority views with the same respect and, perhaps more
importantly, with the same financial support as majority views.
As noted by the Third Circuit:

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

38 App. F-63, Declaration of Mark T. Gallagher in Support of
Plaintiffs’ Motion for Summary Judgment.

3° In Southworth, the student referendum allowed a majority of
students to compel funding of the Wisconsin Student Public Interest
Research Group. The money flowed to the university, which then
handed the money directly over to WISPIRG. Southworth IT, 120 S.
Ct. at 1351-52. Moreover, Southworth demonstrates the danger
inherent in the student referenda process in that the Wisconsin
students also voted to defund a student organization. Jd. at 1351.
That process has been invoked by students at other Oregon schools.
Students voted to discontinue funding of OSPIRG at Portland State
University. App. H-3, Second Affidavit of Maureen Kirk.

ee

21

balance and afford adequate opportunity for offering
Opposing viewpoints.
Galda, 772 F.2d at 1067.

Because the College makes its funding decisions by the
referendum process, the College does not allocate fees among
student groups in a viewpoint neutral manner and thereby
violates the constitutional rights of its students. “When a
university requires its students to pay fees to support the
extracurricular speech of other students . . . it may not prefer
some viewpoints to others.” Southworth II, 120 S. Ct. at 1356.
Thus, this case is identical to Southworth II in that “(t]he
student referendum aspect of the program for funding speech
and expressive activities . . . appears to be inconsistent with the
viewpoint neutrality requirement.” Jd. at 1354.

C. The College’s Use of Student Referenda
to Determine Funding for OSPIRG Is
Unconstitutional Because It Is Not
Viewpoint Neutral

In 1990, students voted to increase the student activity fee
by $2.00, devoting the additional funds solely to OSPIRG.”
This initial increase, and the subsequent increases, amounted to
$262,598 in funding from 1990 to 1996." The money flows
from the students’ hands to OSPIRG’s account and is not
available to any other on-campus group. Hence, the College
favors OSPIRG, and the unique political and ideological
viewpoint it espouses, to the exclusion of other on-campus
groups which may identify with different political and
ideological viewpoints.

It is simply undeniable that OSFIRG uses the compelled
Student fees to engage in its own unique political and

“ App. E-4, Findings and Recommendation.

*' App. E-7.

22

ideological speech and activities. OSPIRG is an advocacy
group actively engaged in promoting and lobbying for ‘he
social and political changes it feels are necessary.

More specifically, OSPIRG began a grassroots lobbying
campaign by soliciting postcards urging United States
Representative Peter DeFazio to support the Clean Water
Enforcement and Compliance Improvement Amendment Act of
1991. OSPIRG has directed its energy toward blocking
corporate sponsorship of events occurring during the 25th
anniversary of Earth Day.“ OSPIRG also informed Congress
that students would not support the Republican Party’s
“Contract with America.”™

Thus, here, as in Galda,

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.
Galda, 772 F.2d at 1067.*

“ App. E-6.

“ App. F-36, Declaration of Mark T. Gallagher in Support of
Plaintiffs’ Motion for Summary Judgment.

“ App. E-6, Findings and Recommendation.
‘S Similar to OSPIRG in this case, the New Jersey Public Interest

Research Group in Galda obtained funding through mandatory
student fees allocated by popular vote of the students. Jd. at 1062.

23

Indeed, here, as in Galda, the College does nothing to
ensure that OSPIRG represents anything more than its own
political and ideological viewpoint. Although the College
funds OSPIRG through the compelled fees of its students, the
College does nothing to oversee how the money js spent by
OSPIRG. For example, the College does not seek to facilitate
the representation of multiple viewpoints by requiring OSPIRG
to provide a budget or a description of its projects and
activities.“ Nor does the College require OSPIRG to provide
an annual report.*’ Finally, the College does not require
OSPIRG to report its activities or the expenditures made in
connection with those projects and activities.“

' In fact, the College simply does not hold OSPIRG
accountable for providing anything more than its own political
and ideological viewpoint to the students forced to bankroll
OSPIRG’s advocacy. The College does not require, and

- OSPIRG does not provide, an explanation of the basis of the
special assessment.” In sum, the College has given OSPIRG
carte blanche, through student majority determination, to spend
its special assessment for its own political and ideological
purpose to the exclusion of other viewpoints.

The standard set by this Court is not a difficult standard
for the College to meet. This Court requires only that the
College allocate funding support in a viewpoint neutral manner.
Southworth IT, 120 S. Ct. at 1356. The use of a student
referendum adhering to majority determination to approve an
increase of student fees of a specific dollar amount and the

“ App. E-7 Findings and Recommendation.
7 Id.

>

® App. E-7-8.

24

funneling of this increase directly to a single political and
ideological group such as OSPIRG, which espouses a single
viewpoint, completely fails to satisfy this standard.

CONCLUSION

Despite this Court’s ruling in Southworth, the decision
of the Ninth Circuit in this case demonstrates that confusion
still reigns in this area of the law. In Southworth, this Court
struck a balance between the educational interest of a college
and the First Amendment rights of students by requiring that
any funding of student political and ideological groups be
handled in a viewpoint neutral manner. Nonetheless, the court
below approved a political and ideological group funding
scheme that depends on securing majority approval for the
group’s point of view. A referendum, by definition, substitutes
majority view for viewpoint neutrality and, therefore, does not
protect the First Amendment rights of dissenting students. As
Petitioners have made clear throughout this litigation, the
College made the initial decision to fund OSPIRG, and
subsequent decisions to continue funding, via student referenda.
These referenda increased mandatory student fees and allocated
that special assessment to OSPIRG. Groups with opposing
viewpoints can not compete for these funds. Because this
process is not viewpoint neutral, it offends the First
Amendment. For these reasons this Court should grant
Petitioners’ Wnit of Certiorari and reverse the holding of the
Ninth Circuit.

25
The petition for Writ of Certiorari should be granted.
DATED: November, 2000.

Respectfully submitted,
RUSSELL C. BROOKS ANTHONY T. Caso
Of Counsel Counsel of Record
TIMOTHY M. HARRIS SHARON L. BROWNE
Pacific Legal Foundation Pacific Legal Foundation
10940 NE 33rd Place 10360 Old Placerville Road
Suite 109 Suite 100
Bellevue, Washington 98004 Sacramento, California 95827
Telephone: (425) 576-0484 Telephone: (916) 362-2833
Facsimile: (425) 576-9565 Facsimile: (916) 362-2932

Counsel for Petitioners

APPENDIX

Appendix A-1

of Lane Community College,

Filed 3/24/99
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

WILLIAM G. )
HOLLINGSWORTH; LISA R. )
HOLLINGSWORTH; and )
JEFFERY D. FERNANDES, ) No. 97-35451

)

Plaintiffs-Appellants, ) D.C.No.
) CV-95-6321-CO
v. )

)
LANE COMMUNITY COLLEGE; ) MEMORANDUM!
LANE COMMUNITY COLLEGE )
BOARD OF EDUCATION; )
JERRY MOSKUS in his official _ )
capacity as President of Lane )
Community College, and LINDA P. )
FOSSEN in her official capacity as_)
Vice President for Student Services )

)

)

Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding

' This disposition is not appropriate for publication and may not be
cited to or by the courts of this circuit except as provided by Ninth
Circuit Rule 36-3.

Appendix A-2

Argued and Submitted May 5, 1998
Portland, Oregon

Before: HAWKINS, THOMAS and SILVERMAN,
Circuit Judges.

William Hollingsworth, Lisa Hollingsworth, and Jeffery
Fernandes (collectively, the “Students”), former students at
Lane Community College (“Lane”), appeal the district court’s
decision denying their motion for summary judgment and
granting summary judgment to Lane, the Lane Community
College Board of Education (“Board of Education”), and the
president and vice-president of Lane, in this action for
monetary, declaratory, and injunctive relief under 42 U.S.C. §
1983 for violations of the First and Fourteenth Amendments of
the United States Constitution. We review the district court’s
decision de novo, see Everson v. United States, 108 F.3d 234,
236 (9th Cir. 1997), and affirm. Because the parties are
familiar with the procedural and factual history of this case, we
will not recount it here.

In challenging the distribution of mandatory student fees
to the Oregon Student Public Interest Research Group
Education Fund (“OSPIRG EF”), this action implicates the
same issues raised in Rounds v. Oregon State Board of Higher
Education, 166 F.3d 1032 (9th Cir. 1999).?

? In Rounds, we dismissed the University of Oregon and the Oregon
State Board of Higher Education from the lawsuit under the Eleventh
Amendment. See 166 F.3d at 1036. At oral argument, the Students
in this case abandoned their claim that the Eleventh Amendment did
not apply to Lane and the Board of Education, so we need not
address it here. Given our disposition on the merits, we also need not
address the potential Eleventh Amendment or qualified immunity of
the individual defendants.

Appendix A-3
I.

The district court did not err in declining to apply strict
scrutiny to the funding of OSPIRG EF through mandatory fees
imposed upon the students at Lane by the Board of Education.
As we held in Rounds, even if Abood v, Detroit Board of
Education, 431 U.S. 209 (1977), and its progeny are applicable,
they do not endorse the application of strict scrutiny. See
Rounds, 166 F.3d at 1038 n.4; Abood, 431 U.S. at 222, 225
(interpreting Supreme Court precedents to hold that interference
with First Amendment interests “is constitutionally justified by
the legislative assessment of the important contribution of the
union shop to the system of labor relations established by
Congress” and finding that “important government interests
recognized [in previous cases] presumptively support the
impingement upon associational freedom created by the agency
shop here at issue”) (emphasis added); Keller v. State Bar, 496
U.S. 1, 13 (1990) (holding that permissible expenditures of
mandatory bar association dues must be “necessarily or
reasonably incurred” for Purpose justifying compelled
association).

Second, Galda v. Rutgers, 772 F.2d 1060, 1068 (3d Cir.
1985), which admittedly did require a university to demonstrate
a compelling state interest to justify its First Amendment
infringement, is inapposite here. The Galda court specified that
this requirement was triggered only because the plaintiffs had
established that the New Jersey Public Interest Research Group
(“NJPIRG”) functioned “essentially as a political action group
with only an incidental educational component.” Jd. at 1065
(citation and internal quotation marks omitted). Such a
characterization has doubtful application to OSPIRG EF, which
is a separate organization from the more politically oriented
Oregon State Public Interest Research Group and instead is
oriented towards giving students the chance to adapt their
classroom skills to the real world, providing students with

Appendix A—4

leadership training, educating the campus community on public
policy issues, and serving as a non-partisan voice for students
on environmental, consumer, and democracy issues. Thus, as
in Rounds, an intermediate level of scrutiny is appropriate.

Il.

The primary difference between the facts of this case
and Rounds is a difference in the funding mechanism. In
Rounds, the allocation to OSPIRG EF was made by the
Associated Students of the University of Oregon or by a vote of
the student body. See 166 F.3d at 1039. At Lane, the allocation
is made by vote of the student body. The results of the vote are
described in the college catalogue, which indicates the portion
of the mandatory fee that is allocated to OSPIRG EF as well as
the portions allocated to other student organization recipients.
The Students argue that this system is akin to the one at issue
in Galda. However, a closer examination belies this contention.
In Galda, a mandatory, earmarked, independently assessed fee
was paid directly to a non-campus organization, NJPIRG; here,
the fee is paid to Lane Community College and appropriated by
student vote. Although the results of that vote are described in
terms of a per-student fee allocation, the system is much
different from the one at issue in Galda.

In fact, the fee scheme here most closely resembles the
regime the Second Circuit approved in Carroll v. Blinken, in
which a contract between the New York Public Interest
Research Group (“NYPIRG”) and the State University of New
York at Albany Student Association allocated $3.00 to
NYPIRG from each student’s general activity fee payment per
semester. See 957 F.2d 991, 993 (2d Cir. 1992). Thus, the mere
fact that an identifiable amount is paid to OSPIRG EF out of
the assessed fees does not permit the plaintiffs to invoke the
strict scrutiny of Galda. See id. at 1003 (“In [Galda], NJPIRG
was financed with a separate assessment, and was not simply an

Appendix A-5

additional group taking from a larger activity fee as NYPIRG
is here.”’).

Despite the slight differences in funding structure, the
Rounds analysis applies here with equal force. As in Rounds
and Carroll, the funding statute is content-neutral and aimed at
expanding campus speech by funding programs “advantageous
to the cultural or physical development of students.” See Or.
Rev. Stat. § 351.070(3)(d) ( 1997). Lane Community College
can articulate substantial governmental interests supporting the
mandatory fee scheme: promoting extracurricular activities,
teaching specific skills and instilling civic activism, and
creating a forum for vigorous debate and free exchange of
ideas. The funding of OSPIRG EF is “germane” to those
purposes within the meaning of Keller, see 496 U.S. at 13, and
Abood, see 431 U.S. at 235-36.

We affirm the judgment of the district court.
AFFIRMED.

Filed 8/18/00

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

WILLIAM G. )
HOLLINGSWORTH; LISA R.
HOLLINGSWORTH; and

JEFFREY D. FERNANDES, No. 97-35451

Plaintiffs-Appellants, D.C. No. 95-6321-CO

¥:; =

)
)
)
)
)
)
LANE COMMUNITY ‘
COLLEGE; LANE
COMMUNITY COLLEGE ) ar
BOARD OF EDUCATION; )
JERRY MOSKUS in his official)
capacity as President of Lane )
Community College; and )
LINDA P. FOSSEN in her official )
capacity as Vice President for )
Student Services of Lane
)
)

Community College,
Defendants-Appellees.

Before: HAWKINS, THOMAS and SILVERMAN, Circuit
Judges.

Following issuance of Board of Regents v. Southworth,
120 S. Ct. 1346 (2000), we requested supplemental briefing as
to the impact of Southworth. Having received and reviewed the

protected viewpoint neutrality because it is undisputed that no
request was ever denied. Therefore, because no justiciable
issue remains, remand is unnecessary.

The panel has unanimously voted to deny the petition for
rehearing and to reject the suggestion for a rehearing en banc.
The full court has been advised of the suggestion for en banc
rehearing and no judge of the court has requested a vote on the
Suggestion for rehearing en banc.

The petition for rehearing is denied and the suggestion for
a rehearing en banc is rejected.

Appendix C-1

Filed 4/11/97
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

WILLIAM G. )
HOLLINGSWORTH, et al., Civil No. 95-6321-
Plaintiffs, co
v. )
LANE COMMUNITY ‘ ORDER
COLLEGE, et al., )
Defendants. )

Magistrate Judge John P. Cooney filed Findings and
Recommendation on February 11, 1997, in the above entitled
case. The matter is now before me pursuant to 28 U.S.C. §
636(b)\(1)(B) and Fed. R. Civ. P. 72(b). When either party
objects to any portion of a magistrate judge’s Findings and
Recommendation, the district court must make a de novo
determination of that portion of the magistrate judge’s report.
See 28 U.S.C. § 636(b)\(1); McDonnell Douglas Corp. v.
Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th
Cir. 1981), cert. denied, 455 U.S. 920 (1982).

Plaintiffs have timely filed objections. I have, therefore,
given de novo review of Magistrate Judge Cooney’s rulings.

I find no error. Accordingly, 1 ADOPT Magistrate Judge
Cooney’s Findings and Recommendation filed February 11,
1997, in its entirety. Defendants’ motion for summary
judgment is granted and plaintiffs’ motion for summary
judgment is denied.

Appendix C-2
IT IS SO ORDERED.
DATED this 7th day of April, 1997.

/s/ Michael R. Hogan
UNITED STATES DISTRICT JUDGE

Appendix C-3

Filed 4/11/97
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
WILLIAM G. ) Case Number
HOLLINGSWORTH, et al., ) 95-6321 -CO
Plaintiffs, :
v. ) JUDGMENT
LANE COMMUNITY
COLLEGE, et al., )
Defendants. )
Based on the record,

IT IS ORDERED AND ADJUDGED that defendants
prevail and this action is dismissed.

DATED this 11th day of April, 1997.

DONALD M. CINNAMOND
CLERK, U.S. DISTRICT COURT

/s/ Craig W. Meyer
by Craig W. Meyers, Deputy Clerk

Entered on Docket 4/11/97

Appendix C—4
PUBLIC NOTICE

By Order signed February 4, 1997, Judge Hogan has amended
LRII0-2(b) Special Admission - Pro Hac Vice. In all cases filed
on or after February 4, 1997 the rule requires submission of an
Application for Special Admission - Pro Hac Vice. A $100
admission fee is required when the application is submitted and
the amended rule requires proof of liability insurance. Copies
of the amendment and application form can be obtained from
the Clerk’s Office.

Mark T Gallagher, Esq.
Pacific Legal Foundation
2151 River Plaza Drive
Suite 305

Sacramento, CA 95833

Appendix D-1

Filed 4/12/00
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

WILLIAM G. )
HOLLINGSWORTH; LISAR. )
HOLLINGSWORTH; and
JEFFREY D. FERNANDES,

No. 97-35451
D.C. No. 95-6321-CO

Plaintiffs-Appellants,

v. ORDER

)
)
)
)
)
LANE COMMUNITY )
COLLEGE; LANE )
COMMUNITY COLLEGE )
BOARD OF EDUCATION; _—?
JERRY MOSKUS in his official
capacity as President of Lane )
Community College; and )
LINDA P. FOSSEN in her official
capacity as Vice President for
Student Services of Lane )
Community College,
)

Defendants-Appellees.

Before: HAWKINS, THOMAS and SILVERMAN, Circuit
Judges.

Each party is directed to file a brief, not to exceed fifteen

pages or 7,050 words, by May 5, 2000, on the correct

disposition of the case upon further consideration in light of

Appendix D-2 :

Board of Regents v. Southworth, _ U.S. _, 2000 WL 293217
(March 22, 2000).

Appendix E-1

Filed 2/11/97
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
WILLIAM G. ) Civil No.
HOLLINGSWORTH; et al ) 95-6321-CO
7 )
Plaintiffs, ) FINDINGS AND
v. ) RECOMMEN-
LANE COMMUNITY ) DATION
COLLEGE; et al. )
Defendants. )
Anthony T. Caso
Sharon L. Browne
Deborah J. La Fetra
Mark T. Gallagher
Attorneys at Law

2151 River Plaza Drive, Suite 305
Sacramento, California 95833

John M. Groen

Attorney at Law

P.O. Box 793

Bellevue, Washington 98009
ATTORNEYS FOR PLAINTIFFS

Thomas S. Moore
Drake A. Hood
Attorneys at Law

4512 S.W. Kelly Ave.
Portland, Oregon 97201

Appendix E-2
ATTORNEYS FOR DEFENDANTS

Plaintiff brought this 42 U.S.C. § 1983 action seeking a
declaration that their rights of speech and association were and
are being violated by defendants’ requirement that they pay a
mandatory student body fee to fund a student group, Oregon
Student Public Interest Research Group (OSPIRG); an
injunction directing defendant Lane Community College (LCC)
to institute a voluntary system to fund OSPIRG; and damages.
This court has jurisdiction pursuant to 28 U.S.C. § 1331.
Defendant OSPIRG was dismissed pursuant to stipulation of
the parties and order of the court. Before the court are motions
for summary judgment filed by plaintiffs and defendants LCC,
Jerry Moskus, and Linda Fossen.

I. FACTS
The court makes the following findings of fact:'

Plaintiffs are former students of LCC. Plaintiffs
Hollingsworth and Fernandes plan to take classes at LCC
during the Spring and Summer 1997 terms. LCC is a public
community college duly established pursuant to the laws of the
State of Oregon. LCC Board of Education (Board) is a local
board of education duly established pursuant to the laws of the

' Defendants have filed a motion to strike certain evidence relied
upon by plaintiffs. The court is considering all evidence submitted by
plaintiffs, with the exception of exhibits 1 and 2 to the complaint
which are not authenticated by plaintiffs, Hal Roach Studios, Inc. v.
Richard Feiner and Co., 896 F.2d 1542, 1550-51 (9th Cir. 1990);
Canada v. Blain’s Helicopters, Inc., 831 F.2d 920, 925 (9th
Cir.1987). The court grants plaintiffs’ request for judicial notice of
the newspaper article, Gallagher Decl. Ex. E. The court’s position
is supported by the evidence objected to by defendants and
considered by the court even with its inclusion.

Appendix E-3

State of Oregon. The Board is responsible for the general
supervision and control of LCC. Defendant Moskus is the
president of LCC. Defendant Fossen is the vice president for
student services at LCC. OSPIRG is a_ nonprofit,
student-directed, student-funded organization with chapters at
four college campuses in Oregon, including LCC. OSPIRG is
exempt from federal income taxation under the provisions of
Internal Revenue Code § 501(c)(3).

Students enrolled in LCC for credit classes or who audit
classes, and who are not holding elective office in student
government, are required to pay an Associated Students of Lane
Community College (ASLCC) student activity fee (activity fee)
each term they are so enrolled. The activity fee is the only
registration fee at LCC which provides funding for student
organizations. Students cannot pay the ASLCC student activity
fee without a portion being allocated by LCC and ASLCC to
OSPIRG, and individuals cannot participate as students at LCC
without paying the full fee, except under certain conditions.
OSPIRG does not provide to students at the LCC main campus
an explanation of the basis of the fee to be assessed. OSPIRG
does not have written procedures available to students at the
main campus on how to request a refund or an exemption of
any portion of the mandatory student activity fee providing
funding support to OSPIRG. OSPIRG does not have written
procedures providing for an escrow account to place the funds
received from objecting students. There are no written policies
of the Board allowing students refunds or exemptions to the
payment of the fee including the OSPIRG fee. The activity fee
is refundable if a student withdraws from all credit classes or if
the credit classes for which a student is enrolled are dropped by
LCC. To object to a specific use of the student activity fee,
students may discuss any objections to the use of the student
fees with an ASLCC officer, the Director of Student Activities,
the Vice President for Student Services, and the President.

Students may also work with ombudspersons on campus to try

;
4
7
i aaa

Appendix E-4

to resolve any objections to the use of student fees.
Alternatively, the students may initiate a referendum to
eliminate any portion of the fee they no longer feel is necessary.
Students may also file a complaint through the grievance
procedure, address the Board during public comment period, or
write letters to the editor of the school newspaper, Torch. The
Director of Student Activities may waive the activity fee if a
student is auditing only one credit class.

LCC is authorized to set tuition and fees for students
pursuant to ORS 341.290(7)(8). Board policy requires it to
approve in advance all proposed changes to student fees
including student initiated programs. The student fee becomes
mandatory only after it is voted on and approved by the LCC
student body. On June 13, 1990, the Board approved an
increase in the activity fee from $5.00 per student per term to
$7.00 per student per term, designating the additional $2.00 to
fund OSPIRG at LCC. The LCC student body holds a periodic
campus-wide referendum on the activity fee paid by students.
Prior to each of the three votes which have been held on the
issue, in 1990, 1993, and 1996, there was publication of
OSPIRG’s activities on the campus, and there was debate
among the students regarding funding of OSPIRG. Plaintiffs
paid the mandatory ASLCC student activity fee each term, of
which $2.00 was directed to fund OSPIRG. In 1996 at ASLCC
elections, the OSPIRG mandatory fee was increased from $2.00
to $2.25 per student. The activity fee appeared as a
nonitemized amount on student registration forms and in the
LCC catalogue prior to Winter 1995. For Winter 1995, LCC
itemized the activity fee and indicates that $2.00 of the activity
fee goes to OSPIRG. The support of the OSPIRG chapter at
LCC by means of mandatory student fees continues at the

present time.

LCC in its ordinary operations offers its students
educational opportunities and experiences to its students

Appendix E-S

regarding civic participation, communication, and debate. LCC
promotes student education through extracurricular activities.
LCC sponsors extracurricular activities like student groups by
funding various student organizations, in whole or in part, with
funds from the student activity fee. Besides funding OSPIRG,
other student groups supported by funds from the activity fee
include the Native American Student Association, the Black
Student Union Club, the Lane Computer Society, Students of
Multicultural Ethnicity, the Nursing Club & Alumni
Association, the Lane Writers Club, the Latino Club, and the
Islamic Club.

OSPIRG promotes policies that preserve the environment,
protect consumers, and encourage citizens to be involved in
public issues. The Articles of Incorporation of OSPIRG state
that the purposes for which it was organized are:

1. to engage in no[n]-partisan analysis, study or research
of such issues of general public interest as environmental
preservation and consumer protection;

2. to make available to the public a full and fair exposition
of the pertinent facts and results of non-partisan analysis,
study and research so that citizens may form independent
conclusions beneficial to the community.

Student fee moneys have enabled OSPIRG to hire professional
organizers and researchers to help students find effective
solutions to problems facing society. OSPIRG does not
regularly employ or contract lobbyists to promote or advocate
any of its activities. OSPIRG hired a lobbyist in 1995 to
oppose an amendment to a bill in the Oregon House of
Representatives which would have eliminated the ability of
student governments to fund student groups, such as OSPIRG.
This is the only time the present Executive Director of OSPIRG
knows that OSPIRG has used a lobbyist. OSPIRG has not
employed or contracted with lobbyists to promote or advocate

Appendix E-6

any of its substantive issues. OSPIRG does not engage in
door-to-door fund raising activities or participate in a fuel oil or
any other cooperative, nor does it incur administrative costs
associated with such programs.

OSPIRG works with students at LCC on a variety of
public interest issues ranging from research and writing
projects, educational forums and presentations, debates,
publication of newsletters, fact sheets, and other materials,
internship and community service projects in the areas of
environmental education, consumer protection, good
government, renters’ rights, recycling, transportation, energy
policy, hunger and homelessness relief, clean air, clean water,
child care, toxins, pesticides, and stream walks. OSPIRG has
worked to educate students about the need to protect
endangered species and improve air quality. Other activities
and programs include a local banking practices survey, a
renter’s rights handbook, guides to recycling, a guide to toy
safety, a campus cleanup, a cleanup of Armitage Park, helping
to feed and find shelter for the homeless, a “streamwalk”
cleanup of the McKenzie River, and a cleanup of a teenage
shelter. OSPIRG urged students to write postcards requesting
local Congressman DeFazio to support the passage of the 1991
Clean Water Act Amendments. OSPIRG urged students to
inform Congress that they would not support the erosion of
environmental standards in the “Contract with America.”
OSPIRG also provides opportunities for students to participate
as interns earning academic credit through which the interns
develop essential skills such as effective communication,
organizational techniques, and research and problem solving.
OSPIRG sponsors from five to ten student interns each term
and, in the six years that OSPIRG has existed at the college,
approximately 150 students have taken advantage of the
opportunity to work as interns at OSPIRG. In addition to these
students, approximately 200-300 students have participated in
various OSPIRG projects as volunteers. Many of the projects

Appendix E-7

and activities of the LCC chapter of OSPIRG take place off the
immediate grounds of LCC’s main campus, including in the
surrounding community and on other campuses in Oregon.
OSPIRG is the largest and most active student organization at
Lax.

Plaintiffs oppose OSPIRG’s objectives and disagree with
its ideology. Plaintiffs have not participated in OSPIRG in any
manner.

OSPIRG receives funds from LCC after moneys from the
activity fee are deposited in the ASLCC Mandatory Fee account
and disbursed by LCC’s finance department. OSPIRG does not
segregatr ~evenue received into separate accounts. No OSPIRG
money is commingled with the Oregon State Public Interest
Research Group Citizen’s Lobby, Inc. (Citizen’s Lobby), which
is an organization separate from OSPIRG. No OSPIRG money
is used to support or pay for activities of Citizens Lobby or any
other organization. OSPIRG does not track expenditures
specific to project and activity. A portion of the moneys
received from the student activity fee is expended to cover the
costs of OSPIRG’s administrative staff. All “statewide
administrative expenses” incurred by OSPIRG relate directly to
activities and operations of OSPIRG, including the chapter at
LCC. LCC does not require OSPIRG to spend as much at
LCC’s main campus as it receives in funding support from the
mandatory ASLCC student activity fee. Between 1990 and
1996, OSPIRG collected $262,598 from LCC students.

OSPIRG is not required by LCC to provide a report
describing its projects and activities or an annual budget for
review. The Board does not have written policies or procedures
requiring OSPIRG to submit an annual budget for review. The
president of LCC does not review an annual report or other
reporting mechanism submitted by OSPIRG setting forth
OSPIRG’s projects and activities at LCC’s main campus, and
the expenditures of OSPIRG in connection with those projects

Appendix E-8

and activities. The president of LCC does not review and
approve OSPIRG’s annual budget. The president of LCC does
not review documents to ensure that OSPIRG spends as much
at Lane’s main campus as it receives as funding support from
the mandatory student activity fee at LCC’s main campus.
LCC relies on upon certain factors to ensure that activity fee
monies used to fund OSPIRG are used only for educational
purposes: OSPIRG’s status as a § 501(c)(3) corporation as
defined by the Internal Revenue Code; annual meetings where
LCC administrators and staff and OSPIRG representatives
discuss OSPIRG’s proposed goals and activities for the coming
year; periodic meetings between LCC Director of Student
Activities and the faculty advisor for OSPIRG; and monitoring
of OSPIRG’s activities by its faculty advisor.

Il. LEGAL STANDARDS

Pursuant to Rule 56(c) of the Federal Rules of Civil
Procedure, a moving party is entitled to summary judgment as
a matter of law “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact.” Fed. R. Civ. P. 56(c); Bhan v. NME Hosps.,
Inc., 929 F.2d 1404, 1409 (9th Cir.), cert. denied, 502 U.S. 994
(1991). The moving party must carry the initial burden of
proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986).
The moving party meets this burden by identifying for the court
portions of the record on file which demonstrate the absence of
any genuine issue of material fact. Celotex Corp., 477 U.S. at
322-24; Bhan, 929 F.2d at 1409. In assessing whether a party
has met its burden, the court must view the evidence in the light
most favorable to the non-moving party. Allen v. City of Los
Angeles, 66 F.3d 1052 (9th Cir. 1995). All reasonable doubts
musi be resolved in the non-movant’s favor. Intel Corp. v.
Hartford Accident and Indem. Co., 952 F.2d 1551, 1558 (9th
Cir. 1991).

Appendix E~9

If the moving party meets its burden with a properly
supported motion, the burden then shifts to the opposing party
to present specific facts which show there is a genuine issue for
trial. Fed. R. Civ. P. 56(e); Intel Corp., 952 F.2d at 1558; Auvil
v. CBS “60 Minutes”, 67 F.3d 816 (9th Cir. 1995), cert. denied,
_ US. _, 116 S. Ct. 1567 (1996); see Anderson v. Liberty
Lobby. Inc., 477 U.S. 242, 250 & n.4 (1986). If the moving
party presents evidence which, taken by itself, would establish
the right to a directed verdict at trial, the motion for summary
judgment must be granted, in the absence of any significant
probative evidence tending to support the opposing party’s
theory of the case. THI-Hawaii, Inc. v. First Commerce Fin.
Corp., 627 F.2d 991, 993-94 (9th Cir. 1980); First Nat'l Bank
v. Cities Serv. Co., 391 U.S. 253, 290, reh'g denied, 393 U.S.
901 (1968). Conclusory allegations, unsupported by factual
material, are insufficient to defeat a motion for summary
judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
Instead, the opposing party must, by affidavit or as otherwise
provided by Rule 56, designate specific facts which show there
is a genuine issue for trial. Leonard v. Clark, 12 F.3d 885, 888
(9th Cir. 1994).

Ill. DISCUSSION

Plaintiffs argue that LCC may not force them by way of a
mandatory student activity fee to support OSPIRG’s political
and ideological speech, to which they object. They claim that
OSPIRG’s on campus and off campus activities and the
exaction of a mandatory fee violates their First Amendment
rights of speech and association. They claim that LCC cannot
show acompelling interest which justifies overriding their First
Amendment rights, and assert that LCC can achieve its goals
through less restrictive means by instituting a voluntary
program to fund OSPIRG. Defendants argue that they are
constitutionally permitted to fund student organizations with
mandatory student fees because such use of funds is germane to

Appendix E-10

LCC’s educational goal. They contend that they cannot refuse
to fund ideological student groups on the basis of the group’s
ideology. Defendants assert that plaintiffs have not sustained
their burden of showing that any student fee monies transferred
to OSPIRG were used to support or promote political or
ideological speech or, if there was, that such speech was not
germane to its broad educational mission. Plaintiffs concede
defendants’ argument that the individual defendants cannot be
held liable for damages, since they are sued in their official

capacity only.

It is clear that a college or university may compel student
funding of student programs--where the funding is germane to
carrying out the goals of the funding organization. Carroll v.
Blinken, 957 F.2d 991, 996-999, 1002 (2d Cir.), cert. denied,
- 506 U.S. 906 (1992) (Carroll 1); Carroll v. Blinken, 42 F.3d
122, 125 (2d Cir. 1994) (Carroll Il); Kania v. Fordham, 702
F.2d 475, 479-80 & n.8 (4th Cir. 1983); Hays County Guardian
v. Supple, 969 F.2d 111,123-24 (Sth Cir. 1992), cert. denied,
506 U.S. 1087 (1993); (see Abood v. Detroit Bd. of Educ., 431
U.S. 209, 235-36, reh’z denied, 433 U.S. 915 (1977); Keller v.
State Bar, 496 U.S. 1, 14-17 (1990).

In Carroll I and Carroll II, the Second Circuit court found
that the interests of the university in “the promotion of
extracurricular life, the transmission of skills and civic duty,
and the stimulation of energetic campus debate” together were
substantial enough interests to justify any infringement of
dissenting students’ First Amendment right against compelled
speech, and that these interests would be served less effectively
absent the mandatory activity fee, a part of which was allocated
to an ideological group, the student New York Public Interest
Research Group (NYPIRG). The court held that the
university’s interest in providing educational opportunities did
not end at the campus gate and that NYPIRG’s activities could
take place off campus as long as the educational nexus existed.

Appendix E-11

However, the Third Circuit in Galda v. Bloustein, 686 F.2d 159
(3d Cir. 1982) (Galda I) and Galda v. Rutgers, 772 F.2d 1060
(3d Cir. 1985), cert. denied, 475 U.S. 1065 (1986) (Galda IN),
held that the university there did not show any compelling state
interest which would justify overriding students’ First
Amendment rights, and the university could not compel
payment of a student fee to fund a political and ideological
group, the New Jersey Public Interest Research Group
(NJPIRG).’

Pursuant to ORS 341.290(8), the Board may, “Prescribe
and collect fees and expend funds so raised for special
programs and services for the students and for programs for the
cultural and physical development of the students.” Defendants
offer evidence that by funding a variety of extracurricular
activities such as student organizations, including OSPIRG,
they advance LCC’s educational purpose by creating a forum
for civic participation, communication, and debate. The
Director of Student Activities at LCC states that the student
government is “designed to reflect local, state and federal
governments for the purpose of fostering student familiarity
with governmental procedures and to encourage involvement in
life on campus and off.” (Delansky Aff. at 3.) The students at
LCC have ratified the funding of OSPIRG each of the three
times the issue has been presented for vote. OSPIRG works
with students on a variety of public interest issues through such
activities as research and writing projects, and educational
forums, presentations, and debates. It publishes newsletters,
fact sheets, and other materials. OSPIRG offers internships to
LCC students for academic credit and provides opportunities

2 The parties represent to the court that they do not believe any
distinction can be made as to the fact that the fee at issue in Galda
was a mandatory fee specifically earmarked for NJPIRG apart from
the compulsory student activity fee which funded a variety of student
groups.

i i a a

Appendix E-12

for students to participate as volunteers in various projects.
Although plaintiffs assert in their memoranda that OSPIRG is
involved in legislative lobbying, the admissible evidence before
the court shows that, with the exception of one instance,’
OSPIRG does not engage in lobbying on substantive issues.
OSPIRG does not engage in door-to-door fund raising or
participate in a fuel oil cooperative or other cooperative. Cy.
Galda I, 686 F.2d at 161; see Rounds v. Oregon State Bd. of
Higher Educ., Civil No. 95-6132-TC, Findings and
Recommendation (D. Or. Oct. 3, 1996), adopted, Order (D. Or.
Dec. 12, 1996).*

The court finds that the activities of OSPIRG as shown in
the admissible materials before the court furthers defendants’
substantial interest in education. A university’s determination
that an organization is an appropriate participant in the
university forum which advances its educational mission is
entitled to “considerable deference.” Galda I, 686 F.2d at 166;
Carroll I, 957 F.2d at 999. The Galda | court found that to
overcome the “presumptive validity” of the university’s
judgment that an organization contributes to the university
community, students objecting to paying a fee to the
organization must demonstrate that the organization functions
“essentially as a political action group with only an incidental
educational component.” Galda I, 686 F.2d at 166.

Plaintiffs do not show that OSPIRG’s projects or
expenditures lack a nexus to defendants’ educational goals.
They argue that defendants’ off campus activities violate their
rights. It is clear that off campus activities and expenditures

* In 1995, OSPIRG hired a lobbyist to oppose legislation in the state
legislature which would have eliminated funding of student groups
such as OSPIRG.

* OSPIRG is the same student group which was challenged in
Rounds. (Second Kirk Aff. at 6.)

Appendix E-13

which are germane to defendants’ educational objectives are
proper. Carroll II, 42 F.3d at 127. Plaintiffs do not show any
lack of nexus between OSPIRG’s off campus activities and
expenditures, including administrative expenditures, and the
educational goals of defendants. Defendants may compel
funding of OSPIRG’s activities and expenditures, including
those which occur off campus, which are germane to LCC’s
educational objectives. Accordingly, the court finds that
plaintiffs fail to sustain their burden on summary judgment.

IV. ORDER

Defendants’ motion to strike is granted in part and denied
in part. Plaintiffs’ request for judicial notice is granted.

V. RECOMMENDATION

Based on the foregoing, it is recommended that
defendants’ motion for summary judgment be granted and that
plaintiffs’ motion for summary judgment be denied.

This recommendation is not an order that is immediately
appealable to the Ninth Circuit Court of Appeals. Any notice
of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate
Procedure, should not be filed until entry of the district court’s
judgment or appealable order. The parties shall have ten (10)
days from the date of service of a copy of this recommendation
within which to file specific written objections with the court.
Thereafter, the parties have ten (10) days within which to file a
response to the objections. Failure to timely file objections to
any factual determinations of the Magistrate Judge will be
considered a waiver of a party’s right to de novo consideration
of the factual issues and will constitute a waiver of a party’s
right to appellate review of the findings of fact in an order or
judgment entered pursuant to the Magistrate Judge’s
recommendation.

Appendix E-14
DATED this 11 day of February, 1997.

__/s/ John P. Cooney
UNITED STATES MAGISTRATE JUDGE

Appendix F-1

Filed 10/11/96
ANTHONY T. CASO
SHARON L. BROWNE
DEBORAH J. LA FETRA
MARK T. GALLAGHER
Pacific Legal Foundation
2151 River Plaza Drive, Suite 305
Sacramento, California 95833
Telephone: (916) 641-8888

JOHN M. GROEN, OSB No. 93160
P.O. Box 793

10800 N.E. 8th Street, Suite 325
Bellevue, Washington 98009-0793
Telephone: (206) 635-0970

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON
WILLIAM G. )
HOLLINGSWORTH, et al., ) No. 95-06321-CO
)
Plaintiffs, ) DECLARATION OF
) | MARK T. GALLAGHER
v. ) IN SUPPORT OF
) PLAINTIFFS’ MOTION
LANE COMMUNITY ) FOR SUMMARY
COLLEGE, et al., ) JUDGMENT AND
) INJUNCTIVE RELIEF
)
)

Appendix F-2
I, Mark T. Gallagher, hereby declare as follows:

1. I am one of the attorneys for plaintiffs William G.
Hollingsworth, Lisa R. Hollingsworth, and Jeffery D.
Fernandes in this action. I have personal knowledge of the facts
set forth below and, if called upon to testify as a witness, I
could and would testify competently thereto under oath.

2. A true and correct copy of excerpts of the
Lane Community College Board policy handbook are
attached hereto as Attachment A.

3. A true and correct copy of Oregon Student Public
Interest Research Group’s (OSPIRG) Responses to Plaintiffs’
Request for Admissions is attached hereto as Attachment B.

4. A true and correct copy of Lane Community College’s
Responses to Plaintiffs’ Request for Admissions is attached
hereto as Attachment C.

5. A true and correct copy of OSPIRG’s Responses to
Plaintiffs’ Interrogatories is attached hereto as Attachment D.

6. A true and correct copy of Ellen Huffaker’s newspaper
article entitled OSPIRG Works to Free the Planet, Lane
Community College Torch, Jan. 13, 1995, is attached hereto as
Attachment E.

7. A true and correct copy of Lane Community College’s
Responses to Plaintiffs’ Interrogatories is attached hereto as
Attachment F.

8. A true and correct copy of Oregon Revised Statute
341.290(8) is attached hereto as Attachment G.

Appendix F-3

I declare under penalty of perjury that the foregoing is true
and correct and that this declaration was executed this 8th day
of October, 1996, at Sacramento, California.

/s/ Mark T. Gallagher
MARK T. GALLAGHER

Appendix F-4
Board Policy Handbook

The Board of Education shall annually review student tuition
rates. It shall be the policy of the College to maintain tuition
and fee rates at a level expected to generate approximately 20%
of the revenue budgeted in the college’s General Fund.
Students may be assessed a mandatory fee for the purpose of
supporting a Board approved, student initiated program if such
a program subsequently receives a favorable vote of the student
body. The administration is directed to establish procedures
that will encourage maximum participation of eligible student
voters in such elections.

Lane Community College

Revised and Adopted by Board Action

January 10, 1990

Cheating and Plagiarism $129

Each instructor shall enforce reasonable regulations to ensure
honesty and may take steps to take disciplinary action against
students who violate such regulations.

Lane Community College

Revised and Adopted by Board Action

January 14, 1976

Associate Degrees 5130.1

The Associate of Science, Associate of Arts and Associate of
General Studies Degrees shall be awarded upon satisfactory

Appendix F—5

completion of an established course of study approved and
periodically reviewed by the Board of Education.

Lane Community College

Revised and Adopted by Board Action

January 14, 1976

Certificate Programs 5130.3

To accommodate those students who have a strong need for a
program leading to a specific occupational competence but
who, for various reasons, do not enroll in a regular degree
program, the administration may organize a certificate program
of less than the number of units required for an A.A. degree. A
diploma will be awarded to those who satisfy the requirements.
Standards of instruction in a certificate program will be
comparable to those in other programs at the College.

Lane Community College
Adopted by Board Action
November 17, 1965

Student Activities 3140

The Board recognizes that the Student Government of Lane
Community College is an active and vital part of the Campus
Community and as such is subject to those rights and
responsibilities defined by Board policy and administrative
procedures.

Lane Community College
Revised and Adopted by Board Action
July 21, 1976

Appendix F-6
Organizations | 5141

The Board encourages the formation of student organizations
as a fulfillment of the interests of the students and as an
informal extension of the process of education.

The administration and student representatives shall formulate
tules for the recognition of student organizations. Only those
approved organizations shall be considered eligible to share in
the rights and privileges of student activities, such as the use of
College facilities, channels for publicity and staff sponsorship.

Lane Community College

Revised and Adopted by Board Action

January 28, 1976

Student Government 5141.1

The student government (ASLCC) shall be considered as the
embodiment of student representation separate from the College.
administration and not a department of the Board of Education
of Lane Community College or any of its legal representatives,
but shall be subject to conformance with Board policy and
administrative procedures.

Lane Community College
Revised and Adopted by Board Action
January 28, 1976

_ Appendix F-7

GREGORY E. SKILLMAN, OSB #87346
LUVAAS, COBB, RICHARDS & FRASER, P.C.
777 HIGH STREET, SUITE 300

EUGENE, OR 97401

TELEPHONE: (541) 484-9292

DAVID E. WOOD

FUND FOR PUBLIC INTEREST RESEARCH
29 TEMPLE PLACE

BOSTON, MA 02111-1305

TELEPHONE: (310) 397-5270

ATTORNEYS FOR: OREGON STUDENT
PUBLIC INTEREST RESEARCH GROUP
EDUCATION FUND, INC. (OSPIRG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

WILLIAM G. HOLLINGSWORTH, )
LISA R. HOLLINGSWORTH, AND )

JEFFERY D. FERNANDES, ) Case No. 95-6321-CO
ie 5 )

Plaintiffs, ) DEFENDANT
vs. ) OSPRIG’S
LANE COMMUNITY COLLEGE; po ote oct
LANE COMMUNITY COLLEGE ) REQUEST FOR
BOARD OF EDUCATION; JERRY ) ADMISSIONS
MOSKUS, in his official capacity as )

President of Lane Community )

College; LINDA P. FOSSEN, in her
official capacity as Vice President for )
Stident Services of Lane Community )
College; OREGON STUDENT _—
PUBLIC INTEREST RESEARCH )
GROUP, INC. [SIC], AN OREGON ?
CORPORATION; AND DOES 1
THROUGH 50,

i i

_——Defendants.

Appendix F-8

Defendant Oregon Student Public Interest Research Group
Education Fund, Inc., hereinafter referred to as “OSPIRG”,
responds to Plaintiff's First Set of Requests for Admission,
dated April 30, 1996, as follows:

Defendant OSPIRG responds for itself only and objects to
Plaintiff's preliminary statement to the extent it purports to call
for or require responses from persons or entities other than
OSPIRG.

REQUEST FOR ADMISSION NO. 1:

OSPIRG does not have written procedures available to
students at Lane Community College’s main campus on how to
object to a specific use by OSPIRG - or specifically Lane’s
funding of OSPIRG of their mandatory student activity fees.

RESPONSE:

DENIED. Any student at Lane Community College who
pays the Student Activity Fee is eligible to participate in the
OSPIRG chapter at Lane Community College and make
himself or herself eligible to become a member of the
organization’s statewide Board of Directors. The purposes and
powers of the Board of Directors are provided in OSPIRG’s
written By-Laws.

REQUEST FOR ADMISSION NO. 2:

OSPIRG does not have written procedures available to
students at Lane Community College’s main campus on how to
request a refund of any portion of the mandatory student
activity fee providing funding support to OSPIRG.

RESPONSE:

ADMITTED. However, OSPIRG is without ability to do
so since the fee in question is established, assessed, and
collected by the Board of Education of the Lane Community
College and subject to its control.

Appendix F—9

REQUEST FOR ADMISSION NO. 3:

OSPIRG does not have written procedures available to
students at Lane Community Coilege’s main campus on how to
request an exemption from any portion of the mandatory
student activity fee providing funding support to OSPIRG.

RESPONSE:

ADMITTED. However, the student activity fee funding
provided to OSPIRG is at the discretion and control of the
Board of Education of the Lane Community College.

REQUEST FOR ADMISSION NO. 4:

OSPIRG does not have written procedures providing for an
escrow account to place the funds received from objecting
students.

RESPONSE:

ADMITTED. However, the procedures for assessing and
collecting the student activity fee used to support OSPIRG are
at the discretion and control of the Board of Education of Lane
Community College, which has not required any funds
transmitted to OSPIRG to be placed in escrow.

REQUEST FOR ADMISSION NO. 5:

OSPIRG does not provide to students at Lane Community
College’s main campus an explanation of the basis of the fee to
be assessed to students through their mandatory student activity
fee to provide funding support to OSPIRG.

RESPONSE:

ADMITTED. However, OSPIRG does not determine the
amount of the fee assessed to students at Lane Community
College. OSPIRG provides information to students, student
leaders, and administrative officials regarding its budget, as
well as activities and operations. Further, each periodic

=
‘
4
e
wea
2
a
4
4

Appendix F-10

campus-wide student body referendum held to reaffirm student
support for OSPIRG states the amount of the fee assessed to
students and the nature of the programs supported by that fee.

REQUEST FOR ADMISSION NO. 6:

OSPIRG is not required by Lane Community College to
provide an annual report or other reporting mechanism
describing its projects and activities at Lane Community
College and the expenditures made in connection with each
project and activity.

RESPONSE:

ADMITTED.

REQUEST FOR ADMISSION NO. 7:

OSPIRG does not provide to Lane Community College an
annual report or other reporting mechanism describing its
projects and activities at Lane Community College and the
expenditures made in connection with each project and activity.

RESPONSE:

DENIED. OSPIRG reports on a regular basis, at least
annually, to members of the Lane Community Board of
Education, the College President and members of his staff, the
Student Activities Director, and members of the ASLCC
student government (including, in the past, then-ASLCC
President William Hollingsworth).

REQUEST FOR ADMISSION NO. 8:

OSPIRG is not required by Lane Community College to
provide an annual report or other reporting mechanism
describing its projects and activities that take place off the Lane
Community College’s main campus which are funded, in whole
or in part, by the Lane Community College mandatory student

Appendix F-11

activity fee and the expenditures made in connection with each
project and activity.
RESPONSE:
ADMITTED.
REQUEST FOR ADMISSION NO. 9:

OSPIRG does not provide to Lane Community College an
annual report or other reporting mechanism describing its
projects and activities that take place off the Lane Community
College’s main campus which are funded, in whole or in part,
by the Lane Community College mandatory student activity fee
and the expenditures made in connection with each project and
activity.

RESPONSE:

DENIED. OSPIRG reports on a regular basis, at least
annually, to members of the Lane Community Board of
Education, the College President and members of his staff, the
Student Activities Director, and members of the ASLCC
student government (including, in the past, then-ASLCC
President William Hollingsworth).

REQUEST FOR ADMISSION NO. 10:

OSPIRG is not required by Lane Community College to
provide an annual budget for review.

RESPONSE:

ADMITTED.
REQUEST FOR ADMISSION NO. 11:

OSPIRG does not provide to Lane Community College an
annual budget for review.

Appendix F—12

7

RESPONSE:

DENIED. OSPIRG’s oral and written reports provided to
members of the Lane Community College community, as stated
in response to Request Nos. 7 and 9, contains information
regarding the organization’s budget and expenditures.

DATED: June _10 , 1996.

David E. Wood

Fund for Public Interest Research

LUVAAS, COBB, RICHARDS &
FRASER, P.C.

Attomeys for Defendant OSPIRG

ee
Gregory E. Skillman,
OSB #87346

Trial Attorney:

Gregory E. Skillman

Appendix F—13
CERTIFICATE OF SERVICE

IT IS CERTIFIED that a true, exact and complete copy of
DEFENDANT OSPIRG’S RESPONSES TO PLAINTIFFS’
REQUESTS FOR ADMISSIONS was served on the _10_ day

of June, 1996 by:

causing delivery of
the same to the person
apparently in charge
at the office of, and
addressed to:

SSSSSSSSSR

depositing the same in the
United States Mail at
Eugene, Oregon, enclosed
in a sealed envelope,
postage paid, and
addressed to:

SHREKERE SE

Sharon L. Browne
Attorney at Law
PACIFIC LEGAL
FOUNDATION

2151 River Plaza Drive,
Suite 305

Sacramento, CA 95833

Thomas S. Moore, P.C.
Attorney at Law

4512 S.W. Kelly Avenue,
Suite 100

Portland, OR 97201

LUVAAS, COBB, RICHARDS & FRASER, P.C.

Attorneys for Defendant OSPIRG

—/s/ Gregory S. Skillman

GREGORY E. SKILLMAN, OSB #87346

ABR: MRSA DRY ON ar eR

Appendix F—14

Thomas S. Moore, P.C.
Thomas S. Moore
4512 S.W. Kelly Ave.
Portland, OR 97201
(S03) 241-3491

Attomey for Defendants Lane Community College,
Lane Community College Board of Education,

Jerry Moskus and Linda P. Fossen

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

WILLIAM G. HOLLINGSWORTH, )
LISA R. HOLLINGSWORTH, and
JEFFREY D. FERNANDES,

Plaintiffs,
Vv.

LANE COMMUNITY COLLEGE,
LANE COMMUNITY COLLEGE
BOARD OF EDUCATION; JERRY
MOSKUS, in his offic ‘al capacity as
President of Lane Corssaunity
College; LINDA P. FOSSEN, in her
official capacity as Vice President for
Student Services of Lane Community
College; OREGON STUDENT
PUBLIC INTEREST RESEARCH
GROUP, INC. an Oregon corporation;
)
)

Ne eee ee ee lew es

)

and DOES | through 50,
Defendants.

Case No. 95-6321-CO

LANE COMMUNITY
COLLEGE
DEFENDANTS’
RESPONSE TO
PLAINTIFFS’ FIRST
REQUEST FOR
ADMISSIONS

Defendants Lane Community College, Lane Community
College Board of Education, Jerry Moskus and Linda P.
Fossen, respond to Plaintiffs’ First Set of Request for
Admissions as follows:

Appendix F—15

REQUEST NO. 1: Lane Community College Board of
Education does not have written policies or procedures
available to students at Lane Community College on how to
object to a specific use of their mandatory student activity fees,
including but not limited to objecting to supporting OSPIRG.

RESPONSE: While the Board itself does not have a

specific policy or procedure on this specific subject, there are
relevant Board policies and procedures. Deny.

REQUEST NO. 2: Lane Community College Board of
Education does not have written policies or procedures
available to students at Lane Community College on how to
request a refund of any portion of their mandatory student
activity fees to be used to support OSPIRG.

RESPONSE: See response to Request No. 1. Deny.

REQUEST NO. 3: Lane Community College Board of
Education does not have written policies or procedures
providing standards and criteria to follow to ensure that
OSPIRG expends the funding support received from the
mandatory student activity fee of the students attending the
main campus of Lane Community College for an educational
benefit to the students at Lane Community College’s main
campus.

RESPONSE: See response to Request No. 1. Deny.

REQUEST NO. 4: Lane Community College Board of
Education does not have written policies or procedures
requiring OSPIRG to submit an annual report or other reporting
mechanism setting forth OSPIRG’s projects and activities at
Lane Community College’s main campus and the expenditures
of OSPIRG in connection with those projects and activities.

RESPONSE: See Response to Request No. 1. Deny.

an annual report or other mechanism

OSPIRG setting forth OSPIRG’s projects and activities at Lane

Community College’s main campus and the expenditures of

OSPIRG in connection with those projects and activities.
RESPONSE: See Response to No. 1. Deny.

REQUEST NO. 6: The president of Lane Community
College does not review an annual report or other reporting
mechanism submitted by OSPIRG setting forth OSPIRG’s
projects and activities at Lane Community College’s main
campus and the expenditures of OSPIRG in connection with
those projects and activities.

RESPONSE: Admit.

REQUEST NO. 7: Lane Community College Board of
Education does not have written policies or procedures
requiring OSPIRG to submit an annual budget for review.

RESPONSE: Admit.

REQUEST NO. 8: The president of Lane Community
College does not review and approve OSPIRG’s annual budget.

RESPONSE: Admit.

REQUEST NO. 9: Lane Community College Board of
Education does not have written policies or procedures to
provide to the students attending Lane Community College’s
main campus an adequate explanation of the basis of the $2
mandatory student activity fee assessed to support OSPIRG
Prior to its collect [sic].

RESPONSE: See Response to No. 1. Deny.

REQUEST NO. 10: Lane Community College Board of
Education does not have written policies and procedures setting

Appendix F-17

forth a standard and criteria to be used to identify those student
groups whose political activities are of such a nature as to
disqualify them from receiving funding support from
mandatory student activity fees.

RESPONSE: See Response to No. 1. Deny.

REQUEST NO. 11: Lane Community College Board of
Education does not have written policies and procedures setting
forth a standard and criteria to be used to ensure that a student
group receiving funding support from mandatory student
activities fees does not use that support to fund partisan
activities including but not limited to lobby the Legislative
Assembly, support or oppose initiative or referendum petitions
or measures.

RESPONSE: See Response to No. 1. Deny.

REQUEST NO. 12: Lane Community College Board of
Education does not have written policies and procedures setting
forth a standard and criteria to be used to identify any student
groups that are ineligible for funding support from mandatory
fees.

RESPONSE: See Response to No. 1. Deny.

REQUEST NO. 13: Lane Community College Board of
Education does not have written policies and procedures setting
forth a standard and criteria to be used to ensure that OSPIRG
spends as much at Lane Community College’s main campus as
it receives as funding support from the mandatory student
activity fee at Lane Community College’s main campus.

RESPONSE: See Response to No. 1. Deny:

REQUEST NO. 14: The president of Lane Community
College does not review documents to ensure that OSPIRG
spends as much at Lane Community College’s main campus as

a

Appendix F~18

it receives as funding support from the mandatory student
activity fee at Lane Community College’s main campus.
RESPONSE: Admit.

Dated this _31 day of _May _ , 1996.

Thomas S. Moore, OSB# 62061
Attorney for Defendants Lane
Community College, Lane
Community College Board

of Education, Jerry Moskus

and Linda P. Fossen

Appendix F-19

CERTIFICATE OF SERVICE

I hereby certify that I served the foregoing LANE
COMMUNITY DEFENDANTS’ RESPONSE TO REQUEST
FOR ADMISSIONS on the following named attorney(s) of
record by mailing to said attorney(s) a true and correct copy
thereof, certified by me as such, placed in a sealed envelope,
with postage prepaid, addressed to said attorney(s) at the last
known address of said attorney(s), and deposited in the U.S.
Post Office at Portland, Oregon on this day.

Anthony T. Caso

Sharon L. Browne

Deborah J. La Fetra

Pacific Legal Foundation

2151 River Plaza Drive, Suite 305
Sacramento, CA 95833

John M. Groen

Attorney at Law

10800 N.E. 8th Street, Suite 325
Bellevue, WA 98004

Attorneys for Plaintiffs

David E. Wood

Fund for Public Interest Research
29 Temple Place

Boston MA 02111-1305

Gregory E. Skillman
777 High Street
Eugene, OR 97401

Attorneys for Defendant OSPIRG

Appendix F-20
DATED this _3ist day of _May , 1996.

Thomas S. Moore, OSB# 6206]
Attorney for Defendants Lane
Community College, Lane
Community College Board of
Education, Jerry Moskus, and
Linda P. Fossen

Appendix F-21

GREGORY E. SKILLMAN, OSB #87346
LUVAAS, COBB, RICHARDS & FRASER, P.C.
777 HIGH STREET, SUITE 300

EUGENE, OR 97401

TELEPHONE: (541) 484-9292

DAVID E. WOOD

FUND FOR PUBLIC INTEREST RESEARCH
29 TEMPLE PLACE

BOSTON, MA 02111-1305

TELEPHONE: (310) 397-5270

ATTORNEYS FOR: OREGON STUDENT
PUBLIC INTEREST RESEARCH GROUP
EDUCATION FUND, INC. (OSPIRG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

WILLIAM G. HOLLINGSWORTH, )
LISA R. HOLLINGSWORTH, AND )

JEFFERY D. FERNANDES, Case No. 95-6321-CO

Plaintiffs, DEFENDANT
“. OSPRIG’S
LANE COMMUNITY COLLEGE: <a
LANE COMMUNITY COLLEGE Pn,

BOARD OF EDUCATION; JERRY
MOSKUS, in his official capacity as
President of Lane Community
College; LINDA P. Fossen, in her
official capacity as Vice President for
Student Services of Lane Community
College; OREGON STUDENT ;
PUBLIC INTEREST RESEARCH )
GROUP, INC. [SIC], ANOREGON
CORPORATION; AND DOES 1
THROUGH 50,

me eee ee ee ee ee ee ee ee”

Appendix F-22

Defendant Oregon Student Public Interest Research Group
Education Fund, Inc., hereinafter referred to as “OSPIRG”,
responds to Plaintiff's First Set of Interrogatories, dated
April 25, 1996, as follows:

Defendant OSPIRG responds for itself only. OSPIRG
objects to Plaintiffs’ preliminary statement to the extent it
purports to call for or require Interrogatory responses from
persons or entities other than OSPIRG.

Defendant OSPIRG states a general objection to Plaintiffs’
requests for information for any years during which OSPIRG
did not have a chapter at, and did not receive funding from,
Lane Community College.

Defendant OSPIRG states a general objection to Plaintiffs’
failure to specify whether information is sought on a calendar
year, academic year, or fiscal year basis. Without waiving said

INTERROGATORY NO. 1:

Describe all sources of revenues by category received by
OSPIRG for years 1989-1996 (including but not limited to
Student fees received from college campus chapters of
OSPIRG, interest from investments, and donations).

RESPONSE:

Defendant OSPIRG objects to this Interrogatory to the
extent it requests identification of OSPIRG revenue other than
and unrelated to OSPIRG’s Lane Community College’s Student
Activity Fee revenue, which is the subject of this i
as flamed by Plaintiffs’ Complaint. Without waiving the
foregoing objection, OSPIRG states that its total annual gross
revenue from Lane Community College Student Activity Fees
has been as follows (all years are fiscal years):

Appendix F—23

1990-1991: $45,923.00
1991 - 1992: $51,990.00
1992 - 1993: $53,750.00
1993 - 1994: $52,425.00
1994 - 1996: $58,510.00

INTERROGATORY NO. 2:

Does OSPIRG segregate revenues received into separate
funds or accounts depending on the type of revenue received?

RESPONSE:

No. OSPIRG does not segregate revenues received into
separate accounts, though OSPIRG’s financial systems provide
for separate tracking of revenues received from one or more
sources.

INTERROGATORY NO. 3:

If the answer to the preceding Interrogatory is yes, please
provide the account numbers, names of banks, and addresses
where the separate accounts are located and what types of
revenues are placed in which accounts.

RESPONSE:

Not applicable, since Interrogatory No. 2 was answered in
the negative.

INTERROGATORY NO. 4:

For each year, beginning in 1989, please state the amount
of revenue received from the Lane Community College chapter
of OSPIRG.

RESPONSE:

The information responsive to this Interrogatory is
provided in response to Interrogatory No. 1.

Appendix F—24
INTERROGATORY NO. 5:

For each year, beginning in 1989, please describe with
particularity OSPIRG’s Projects and activities at Lane
Community College’s main campus.

RESPONSE:

OSPIRG objects to the breadth and vagueness of this
Interrogatory. Without waiving this objection, OSPIRG states

activities on a periodic basis (annually, monthly, weekly, by
academic term) which meet the criteria they determine.

limited to, environmental education, consumer protection,
renter’s rights, recycling, transportation, energy policy, hunger
and homelessness relief, clean air, clean water, child care,
toxins, pesticides, and streamwalks.

INTERROGATORY NO. 6:

For each project and activity identified in the preceding
Interrogatory, please state the expenditure made by OSPIRG in
connection with each identified project and activity.

RESPONSE:

OSPIRG does not track expenditures specific to each
Project and activity.

INTERROGATORY NO. 7:

Appendix F—25
RESPONSE:

OSPIRG objects to Plaintiffs’ request for identification of
the “manner” or process by which each individual project or
activity stated in Interrogatory No. 5 was selected. Without
waiving this objection, OSPIRG states that, in general terms,
projects and activities at Lane Community College, such as
those described in Interrogatory Ne. 5, are proposed, discussed,
and selected by students at Lane Community College. All
students at Lane Community College are eligible to participate
in OSPIRG, including the process for deciding the chapter’s
projects and activities.

OSPIRG’s Board of Directors, composed of representatives
from the campus chapters, deliberates and votes on
recommendations made to it. Determinations by chapters and
Board of Directors can be made on the basis of criteria
including, but not limited to: interest of students and the college
community, educational benefit to be provided by the project or
activity and derived by students therefrom, applicability within
the structure and limitations of the organization, and student
participation.

INTERROGATORY NO. 8:

For each year, beginning in 1989, please describe with
particularity OSPIRG’s projects and activities performed off the
main campus of Lane Community College but supported by
funds received from Lane Community College.

RESPONSE:

OSPIRG incorporates by reference the response to
Interrogatory No. 5. Specifically, many of the projects and
activities of the Lane Community College chapter of OSPIRG
take place off the immediate grounds of the Lane Community
College main campus. Similarly, projects and activities which
take place at Lane Community College and its surrounding

Appendix F-26

community may take place at other campuses in Oregon, and in
the same way that the Lane Community College chapter’s
activities are reported to and shared with students at other
campuses, Lane Community College students are informed of,
and given the opportunity to participate in, the projects and
activities engaged in at those other campuses as well as
off-campus throughout Oregon.

INTERROGATORY NO. 9:

For each project and activity identified in the preceding
Interrogatory, please state the expenditure made by OSPIRG in
connection with each identified project and activity.
RESPONSE:

OSPIRG does not track expenditures specific to each
project and activity.
INTERROGATORY NO. 10:

Please explain, with particularity, how OSPIRG calculates
the amount of the student activity fee to be assessed to students
on the various college campuses including, but not limited to,
the amount of student activity fee to be assessed the students at
Lane Community College for the academic years 1989 through
1996.

RESPONSE:

OSPIRG objects to the extent Plaintiffs seek information
regarding OSPIRG’s campus chapters other than Lane
Community College, which is the subject of this proceeding as
framed by Plaintiffs’ Complaint, and to the request for
information for all years during which OSPIRG did not have a
chapter at Lane Community College. Without waiving these
objections, OSPIRG states that it does not determine, and has
not determined at any time during its presence as a student
organization at Lane Community College, the amount to be

Appendix F-27

assessed to students at that school. The amount of the student
activity fee collected by Lane Community College to support
OSPIRG is determined and assessed by the Board of Education
of Lane Community College and subject to periodic approval
through a referendum posed to the Lane Community College
student body. Students at Lane Community College recently
approved by a 78% majority a continuation of the OSPIRG
chapter and established the recommendation for the amount of
the fee.

INTERROGATORY NO. 11:

Please identify, for each year beginning in 1989, what
portion of the revenue received by OSPIRG from the Lane
Community College chapter of OSPIRG was expended to cover
the costs of OSPIRG’s statewide conferences.

RESPONSE:

OSPIRG objects to this question, given the vagueness of
Plaintiffs’ request regarding “statewide conferences,” and to the
request for information for all years during which OSPIRG did
not have a chapter at Lane Community College. Without
waiving these objections, OSPIRG states that expenditures are
not tracked specific to each activity engaged in by the
organization, including so-called “statewide conference.”
Expenditures are made consistent with the organization’s
annual budget as determined and approved by the student Board
of Directors.

INTERROGATORY NO. 12:

Please provide the name, address, and telephone number of
each student from Lane Community College who attended a
statewide conference sponsored by OSPIRG during the
academic years 1989 through 1996.

Appendix F-28
RESPONSE:

OSPIRG objects to this question, given the vagueness of
Plaintiffs’ request regarding “statewide conferences,” and to the
request for information for all years during which OSPIRG did
not have a chapter at Lane Community College. Without
waiving these objections, OSPIRG states that this information
is not available.

INTERROGATORY NO. 13:

Please identify, for each year beginning in 1989, what
portion of the revenues received by OSPIRG from Lane
Community College chapter of OSPIRG was expended to cover
the costs of OSPIRG’s administrative staff including its
professional staff.

RESPONSE:

OSPIRG objects to Plaintiffs’ characterization of “revenues
received by OSPIRG from Lane Community College chapter of
OSPIRG .. .”. OSPIRG receives revenue from Lane
Community College as assessed to and collected from students
by the College’s Board of Education. Without waiving this
objection, OSPIRG states that it does not segregate and
separately track revenues from Lane Community College in
such a way as to identify those with particular expenditures of
the organization, including those for so-called “administrative
staff’ and “professional staff.”

INTERROGATORY NO. 14:

Please identify, for each year beginning in 1989, what
portion of the revenues received by OSPIRG from Lane
Community College chapter of OSPIRG was expended to cover
the costs of the statewide administrative expenses.

Appendix F-29
RESPONSE:

OSPIRG objects to Plaintiffs’ characterization of “revenues
received by OSPIRG from Lane Community College chapter of
OSPIRG . . .”. OSPIRG receives revenue from Lane
Community College as assessed to and collected from students —
by the College’s Board of Education. Without waiving this
objection, OSPIRG states that it does not segregate and
separately track revenues from Lane Community College in
such a way as to identify those with particular expenditures of
the organization. All so-called “statewide administrative
expenses” incurred by OSPIRG relate directly to the activities
and operations of OSPIRG and its various chapters, including
the chapter at Lane Community College.

INTERROGATORY NO. 15:

Please describe the manner in which OSPIRG provides
information to Lane Community College for academic years
1989 through 1996, of its projects and activities on Lane
Community College and the expenditures made in connection
with each project and activity.

RESPONSE:

As requested, OSPIRG provides oral and written reports to
various persons at Lane Community College regarding the
structure, operation, and activities of OSPIRG. Such reports
have been made to members of the Associated Students at Lane
Community College (“ASLCC”), including former ASLCC
President and Plaintiff William Hollingsworth, to members of
the Board of Education, and to members of the Lane
Community College administration and faculty.

INTERROGATORY NO. 16:

Please describe with particularity the contents of .
OSPIRG’s information provided in the preceding Interrogatory

Appendix F-30

(in lieu of describing the information, you may provide the
relevant documents).
RESPONSE:

Information provided in reports given to the persons listed
in response to Interrogatory No. 15 has included: line item
budgets and budget narratives; reports of expenditures; history
of OSPIRG, including its history at Lane Community College,
with reference to establishment of the fee to support OSPIRG,

and accomplishments of OSPIRG; descriptions of the structure
of the organization, including representation on its Board of
Directors.

INTERROGATORY NO. 17:

Please describe with particularity whether OSPIRG shares
office space, staff (professional, administrative, or clerical), or
supplies with any other entity, organization, foundation, or
group.

RESPONSE:

OSPIRG occupies office space at Lane Community
College in a building occupied by other student organizations
and campus facilities, and at other chapter campuses similarly
occupied by other student organizations and campus facilities.
OSPIRG occupies office space in Portland along with other
non-profit organizations. OSPIRG shares in reimbursement
arrangements with other non-profit organizations for certain
employed by OSPIRG are also separately employed by other

Oe

Appendix F-31

INTERROGATORY NO. 18:

Please describe the procedures available to students at Lane
Community College to object to a specific use of student fees
by OSPIRG prior to the expenditure.

RESPONSE:

OSPIRG objects to the vagueness of this Interrogatory.
Without waiving such objection, OSPIRG states that a student
at Lane Community College could object by: becoming a
participant in the organization at Lane Community College;
becoming a member of the organization’s Board of Directors;
voting in campus-wide elections regarding OSPIRG’s
continuation at Lane Community College; writing a letter to
OSPIRG stating the objection; coming to the offices of
OSPIRG to state that objection; visiting, writing, or calling the
administration of Lane Community College regarding the
objection; visiting, writing, or calling the Lane Community
College Board of Education regarding the objection.

INTERROGATORY NO. 19:

Please describe all duties and responsibilities of each
person receiving a salary of any kind whatsoever from
OSPIRG, including the person’s name, position, business
address, and telephone number (whether full time or part time
or hourly). |

RESPONSE:

OSPIRG objects to the vagueness of this Interrogatory, as
the duties and responsibilities of staff people change as the
Board of Directors dictates. Without waiving this objection,
OSPIRG states that at the present time the following
individuals, with the following duties and responsibilities,
receive a salary from OSPIRG:

Appendix F—32
Maureen Kirk - Executive Director; management of staff
and operations, oversee interns, oversee budgets

Laura Etherton - Administrative Director; financial
management, program/issue back-up, publications
production

Maren Souders - Office Manager; general administration,
bookkeeping, program/issue back-up

Chris Taylor - Environmental Advocate; research,

education, and outreach on selected environmental issues,
oversee interns

Laura Culberson - Consumer Advocate; research,
education and outreach on selected consumer issues,
oversee interns

Kristin Lee - Campus Staff; coordinate activities for
student interns and volunteers; program/issue work

Business address: 1536 SE 11th Avenue
Portland, OR 97214

Business telephone: (503) 231-4181
INTERROGATORY NO. 20:

Please state the date OSPIRG received tax-exempt status
under Section 501(c) (3) of the Internal Revenue Code.

RESPONSE:

By letter dated December 28, 1976, with an effective date
of April 9, 1976.

INTERROGATORY NO. 21:

Please describe each document used in preparing your
responses to these Interrogatories.

NE ait aces AP Ge

Appendix F-33
RESPONSE:

Written reports described in response to Interrogatory No.
15; the organization’s audited financial statements and Internal
Revenue Service Forms 990; Internal Revenue Service Exempt
Status Determination Letter.

INTERROGATORY NO. 22:

Please provide the name, position, business address, and
telephone number of each person who assisted in providing the
responses to these Interrogatories excluding clerical assistance.

RESPONSE:

Maureen Kirk, Executive Director

Oregon Student Public Interest Research Group
Education Fund

1536 SE llth Avenue

Portland, OR 97214

(503) 231-4181

Laura Etherton, Administrative Director

Oregon Student Public Interest Research Group
Education Fund

1536 SE llth Avenue

Portland, OR 97214

(503) 231-4181

INTERROGATORY NO. 25 (sic):

List the name, current address, and telephone number of

each person you expect to call as a percipient (nonexpert)
witness during the trial of this action.

RESPONSE:
This information is not available at this time.

Appendix F-34
DATED: June _8 , 1996.

By:

For Defendant, OSPIRG

Appendix F-35

CERTIFICATE OF SERVICE

IT IS CERTIFIED that a true, exact and complete copy of
DEFENDANT OSPIRG’S RESPONSES TO PLAINTIFFS’
INTERROGATORIES was served on the _10_ day of June,

1996 by:

causing delivery of
the same to the person
apparently in charge
at the office of, and
addressed to:

KERR EEE

depositing the same in the
United States Mail at
Eugene, Oregon, enclosed
in a sealed envelope,
postage paid, and
addressed to:

Te OR a

Sharon L. Browne
Attorney at Law
PACIFIC LEGAL
FOUNDATION

2151 River Plaza Drive,
Suite 305

Sacramento, CA 95833

Thomas S. Moore, P.C.
Attorney at Law

4512 S.W. Kelly Avenue,
Suite 100

Portland, OR 97201

LUVAAS, COBB, RICHARDS & FRASER, P.C.

Attorneys for Defendant OSPIRG

/s/ Gregory E. Skillman

GREGORY E. SKILLMAN, OSB #87346

Appendix F-36

OSPIRG Works to
Free The Planet

Starting the term off with a roar, OSPIRG students are
ready to face 1995 with activism on their minds. The 104th
session of Congress has begun and the Republican “Contract
with America” threatens to stand in the way of many issues that
LCC students feel are critical to our planet’s future. By aiming
to gut the Endangered Species Act, the Clean Water Act, the
Clean Air act, and many other health reforms (not to mention
student loans and welfare assistance), the “Contract” leaves
students no choice but to get involved!

OSPIRG’s lead campaign this term, “Free the Planet” is
focusing on the removal of corporate polluters from sponsoring
events for the 25th anniversary of Earth Day in April, as well as
sending a message to Congress that students will not support
legislation within the “Contract with America”.

Mindy Meier, the new Chapter Chair for the LCC OSPIRG
chapter, states that “We accomplished many things last term,
including making sure that the plastics industry has so far been
unable to weaken Oregon’s recycling laws, and it looks as if
this term will be filled with even greater challenges and greater
victories.” Lane’s chapter is working on four other campaigns
this term in order to increase recycling on campus, protect
endangered species work on issues of hunger and homelessness,
and promote clean air.

Ellen Huffaker
OSPIRG Campus organizer

January 13, 1995 * The Torch

Appendix F—37

Environmentalists prepare to defend
threatened species and ecosystems

Michael Cough
Staff Writer

OSPIRG is speaking out against possible amendments
which Congress might add to the Environmental Protection Act,
making commercial development of protected land easier.

During a slide show sponsored by OSPIRG on Monday,
Jan. 9, Monica Bond, an OSPIRG West Coast coordinator,
described the loss of ecosystems and the proposed amend-
ments which Congress is considering for the Environmental
Protection Act.

Bond’s discussion on ecosystems concentrated on the
wetlands and how they work as an important part in controlling
climatic changes such as the flooding which recently occurred
in California. In fact, Bond claims, if just a portion of the
wetlands in Mississippi had been left undeveloped, the flood
which hit much of the Mid-west two years would have been 80
percent less disastrous.

A graduate of Duke University, Bond said, “four species
become extinct every hour of every day because each hour 200
acres of land are developed and ecosystems are lost.”

About half of all U.S. pharmacuticals used are derived
from natural compounds, said Bond. She claims that scientists
discovered the bark from a tree to be effective against the AIDS
virus. But she says scientists were unable to pursue the
possibility because when they returned to study the tree, the
marshland in which it grew had been destroyed.

Bond also explained that businesses can develop on
protected land through allowances made in the Environmental
Protection Act.

Appendix F-—38

Businesses can propose to develop on protected lands by
petitioning to the protection agencies for approval. The EPA
then reviews the request and can issue the go-ahead, says Bond.

“Last year only one percent of development projects on
protected lands were denied,” says Bond.

Currently, despite the allowances made, some large
companies have lobbied Congress to make amendments in the
Environmental Protection Act, she said. These amendments
would reduce the rights for endangered animals as their habitat
would be destroyed for development and the animals would be
moved to a zoo cage, claimed Bond.

According to Bond, wildlife federations have also

attempted to lobby Congress to protect the ri ghts of the animals
and ecosystems.

Students interested in learning more about endangered
species are encouraged to contact the OSPIRG office located in
the basement of the Center Building.

January 13, 1995 * The Torch

Appendix F-39

Thomas S. Moore, P.C.
Thomas S. Moore
4512 S.W. Kelly Ave.
Portland, OR 97201
(503) 241-3491

Attorney for Defendants Lane Community College,
Lane Community College Board of Education,
Jerry Moskus and Linda P. Fossen

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

WILLIAM G. HOLLINGSWORTH, ) Case No.
LISA R. HOLLINGSWORTH, and ) 95-6321-CO
JEFFREY D. FERNANDES, )
) LANE
Plaintiffs, ) COMMUNITY
v ) COLLEGE

LANE COMMUNITY COLLEGE, ) DEFENDANTS'
LANE COMMUNITY COLLEGE ) RESPONSE TO
BOARD OF EDUCATION; JERRY ) INTERROGA-
MOSKUS, in his official capacity as) TORIES
President of Lane Community College; )
LINDA P. FOSSEN, in her official )
capacity as Vice President for Student )
Services of Lane Community College; )
OREGON STUDENT PUBLIC )
INTEREST RESEARCH GROUP, )
INC. an Oregon corporation; and )
DOES | through 50, )

)

)

Defendants.

Appendix F-40

Defendants Lane Community College, Lane Community
College Board of Education, Jerry Moskus and Linda Fossen
_ Tespond

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1309%3A1. Public record. Not legal advice.