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

OPINION OF THE COURT

WEIS, Circuit Judge.

The plaintiff students contend that a mandatory fee imposed on them by a university for the specific purpose of supporting an independent organization whose aims they oppose is an infringement on their First Amendment rights. The district court held that the funding procedure was permissible' because the outside organization contributed to the education of its student members. We conclude that because the educational component is only incidental to the organization’s ideological objectives, the educational benefits are not adequate to overcome the constitutional objections. Consequently, we will vacate the district court’s judgment and direct that collection of the mandatory fee be enjoined.

In an earlier appeal in this litigation we reversed a summary judgment in favor of defendants. Galda v. Bloustein, 686 F.2d 159 (3d Cir.1982) (Galda I). On remand, the district court held a two week bench trial. After filing extensive findings of fact and conclusions of law, the court entered judgment for the defendants. Galda v. Rutgers, 589 F.Supp. 479 (D.N.J.1984).

This suit for injunctive relief was brought under 42 U.S.C. § 1983 by current and former students at Rutgers Camden College of Arts and Sciences, a unit of Rutgers, the State University of New Jersey. Plaintiffs asserted that their First Amendment rights were violated by the University’s imposition of a mandatory, refundable fee for the specific purpose of supporting the New Jersey Public Interest Research Group (PIRG).

The New Jersey PIRG has members at a number of other college campuses in New Jersey. It is an independent, non-profit corporation, controlled by a board of student representatives at the state-wide level. It maintains a paid staff consisting of a director, one part-time and six full-time employees.

PIRG is politically nonpartisan, but participates in state legislative matters and actively engages in research, lobbying and advocacy for social change. Its staff and student members have lobbied for a federal student assistance act, the Equal Rights Amendment, a nuclear weapons freeze, and the enactment of the Pine Lands Preservation Act. PIRG also opposed the construction of the Tocks Island Dam on the Delaware River.

In addition, members of the organization drafted proposed legislation mandating a study of energy production in New Jersey and testified in opposition to an increase in utility rates before an administrative agency. PIRG members have researched and published documents on a number of other consumer and environmental issues. The organization also provides internships for students who receive academic credit for the work they perform.¹

Because PIRG is an organization independent of the University, it is ineligible to receive money from the general student activities fee. It has, however, qualified for financial support under the Rutgers “neutral funding policy.” To do so PIRG was required to submit a “concept plan” to the University outlining the organization’s educational value. Following administration approval, the next step was to participate in an election where PIRG was required to obtain the vote of at least 25% plus one of the student body on a particular campus. The neutral funding policy also requires that the votes must represent a majority of the ballots actually cast.

PIRG’s concept plan has received the University’s approval in each of the three-year periods in which it was submitted, and it has been successful in securing the necessary affirmative votes in most of the student referenda.

As a result of PIRG’s qualification under the Rutgers’ funding procedures, each student enrolled at a particular campus must pay a mandatory fee of $3.50 to PIRG. In a twelve year period, the organization received more than $800,000 in this fashion and currently receives over $100,000 per year from the mandatory assessment. A student who does not wish to support PIRG is required to request a refund, which is generally returned several months later.

In the first proceeding, without exploring the plaintiffs’ contentions, the district court granted summary judgment for defendants, holding that since the fee was refundable, there had been no constitutional infringement. Galda v. Bloustein, 516 F.Supp. 1142 (D.N.J.1981). On appeal from that ruling, we held that the refund provision was not adequate and on that record even a temporary exaction of the PIRG fee from plaintiffs could not be justified. Gal-da I, 686 F.2d at 169. We remanded because there was a genuine issue of material fact on whether assessment of the fee infringed the plaintiffs’ constitutional rights.

At trial PIRG’s organizational structure was developed in some detail. In essence, the court found that the group’s policies were made by the state board of student directors, which also had the authority to hire and discharge the salaried executive director. In addition to an executive director, PIRG hires a paid staff that manages the day-to-day operations of the organization.

Plaintiffs produced three expert witnesses who testified that PIRG operates as a political action group and its purpose is to “pursue change in the political process.” One expert opined that PIRG “consistently represents and adheres to a liberal ideology and views American society as covertly oppressive.” Another of the plaintiffs’ experts conceded that he “could not quantify PIRG’s political and non-political activities” and that many of its projects were non-ideological.

Defendants produced four experts, including the President of Rutgers, who testified to what they believed were the educational benefits to the students participating in PIRG. These included “learning to advocate and thoroughly learning their adversary’s position in order to rebut them”, forcing students to “publicly campaign and promote an organization”, providing an opportunity “to investigate, research, write, and advocate their positions before governmental agencies,” providing “students with leadership opportunities,” and “teaching students to function as citizens.” 589 F.Supp. at 493-94.

A number of faculty members as well as current and former students testified about their participation in PIRG activities. The students noted that their experiences included public speaking, learning the use of a law library, and developing interest in a public service, governmental career which some followed after graduation. The faculty members talked favorably about the opportunity for, and close supervision of, internships.

One faculty member spoke especially about the “stream walking” phase of the environmental project for clean streams. In this activity, participants walked along water courses in search of illegal polluters who were then reported to the Environmental Protection Agency. The court found this to be a major activity. Faculty members testified that the stream walking program was valuable because of the students’ opportunity to learn about the environment and governmental process.

The defense witnesses did not dispute that PIRG took positions on political as well as ideological issues and worked actively to advance them. An examination of PIRG’s financial documents by a certified public accountant as well as an independent review by the district court established that it was not possible to “numerically quantify ‘political’ and ‘educational’ components of PIRG.”

The district court found that Rutgers “has made a carefully reasoned decision that PIRG is a valuable educational adjunct to the more traditional classroom activities.” PIRG had “engaged in projects that can be objectively characterized as both ‘educational’ and ‘political.’ Because of the fact that some activities ostensibly political are also inherently educational, it is impossible to neatly quantify PIRG’s activities into these simplistic categories.” 589 F.Supp. at 495.

In passing on the experts’ testimony, the court stated that to the extent the parties differ “about the nature of PIRG and its contributions to the university community, the court finds there exists some difference of opinion in the academic community.” But, the court concluded, “PIRG has a very substantial educational component, and its presence at Rutgers significantly enhances the educational opportunities available for students at that institution.” The court therefore found that “plaintiffs have failed to overcome the presumptive validity of the University’s judgment and have thus failed to make out a prima facie case that their constitutional rights have been violated.” Accordingly, judgment was entered for defendants.

Preliminarily, it is helpful to briefly review the nature of the constitutional right at stake. Plaintiffs assert that they may not be compelled to contribute to an organization which espouses and promotes ideological causes they oppose. The contours of this right are still in the developmental stage. Frequently cited as the seminal case is Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), where the Court recognized an individual’s right to refuse on religious grounds to participate in the traditional flag salute. The Court described the right as freedom from “a compulsion of students to declare a belief.”

The Barnette rationale was extended to the forced payment of “union shop” or “agency shop” fees, portions of which were used for purposes not germane to collective bargaining activities. Those decisions beginning with International Association of Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961), progressed through Railway Clerks v. Allen, 373 U.S. 113, 83 S.Ct. 1158, 10 L.Ed.2d 235 (1963), to Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977).

In Abood, the Court found “meritorious” the argument that employees “may constitutionally prevent the Union’s spending a part of their required service fees to contribute to political candidates and to express political views unrelated to its duties as exclusive bargaining representatives.” Id. at 234, 97 S.Ct. at 1799. More recently in Ellis v. Brotherhood of Railway, Airline & Steamship Clerks, 466 U.S. 435, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984), without discussing the constitutional principle, the Court devoted its attention solely to developing a proper remedy for the violation of the First Amendment right not to support an ideological view the person opposes.

In another context, the Court has recognized the right of an individual to reject a state measure that forces him, “as a part of his daily life ... to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable.” Wooley v. Maynard, 430 U.S. 705, 715, 97 S.Ct. 1428, 1435, 51 L.Ed.2d 752 (1977). See also Zauderer v. Office of Disciplinary Counsel, — U.S. -, -, 105 S.Ct. 2265, 2281, 85 L.Ed.2d 652 (1985).

In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the Court held that contributing to a political message is protected by the First Amendment. See also Federal Election Comm’n. v. National Conservative Political Action Committee, — U.S. - 105 S.Ct. 1459, 84 L.Ed.2d 455 (1985). Commenting on Buckley, the Court in Abood observed that compelling, as well as prohibiting, “contributions for political purposes works no less an infringement” on constitutional rights. 431 U.S. at 234, 97 S.Ct. at 1799.

Significantly, in First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978), a First Amendment controversy, the Court drew no subject matter distinction between partisan political topics and those of general public concern.

In short, what Abood holds objectionable is the “compulsory subsidization of ideological activity” by those who object to it. 431 U.S. at 237, 97 S.Ct. at 1800. Commentators have debated the basis supporting this right. It may be a broad concept of “individual freedom of mind,” Wooley v. Maynard, 430 U.S. at 714, 97 S.Ct. at 1435, or a ban on coerced affirmation of distasteful views, or a right not to be subjected to a limitation on freedom of conscience, or perhaps a right to maintain silence in the face of a governmental pronouncement.² We resist the temptation to expound on these absorbing theories because whatever the source or underlying rationale, the Supreme Court’s precedents establish to our satisfaction that plaintiffs have presented a valid constitutional interest for consideration.

Although the jurisprudential underpinnings for the constitutional right are complex, the issue here is a narrow one and may perhaps best be explained by eliminating what is not at stake. This case does not address the problem presented by a state university’s allocation of a mandatory non-refundable student activity fee. We are not concerned here with the question whether an organization with PIRG’s philosophic outlook may be funded through the general activities fund as are other campus organizations representing diverse views.

In short, we do not enter the controversy on whether a given campus organization may participate in the general activities fee despite the objections of some who are required to contribute to that fund. See, e.g., Kania v. Fordham, 702 F.2d 475 (4th Cir.1983); Maryland Public Interest Research Group v. Elkins, 565 F.2d 864 (4th Cir.1977). See also Note, “Fee Speech”; First Amendment Limitations on Student Fee Expenditures, 20 Cal.W.L.Rev. 279 (1984).

And, although we are reluctant to belabor the obvious, it apparently must be made absolutely clear that in no way does this case present the issue of whether PIRG or any other organization may be restricted in the expression of its views on campus or elsewhere. Nor does this case in any way question PIRG’s right to finance its operations by voluntary contributions from those who agree with its objectives.

As Galda I emphasized, there is a distinction between PIRG and student organizations that are funded through the student activity fee. We noted that the student activity fee is used to subsidize a variety of student groups, and therefore that assessment can be “perceived broadly as providing a ‘forum’ for a diverse range of opinion.” In contrast, “PIRG does not provide a forum for the expression of differing views” but is a “group.” Id. at 166. Moreover, the PIRG fee is segregated from other charges listed on the students’ bills and supports only that “group.”

The question here is limited to whether a state university may compel students to pay a specified sum, albeit refundable, to an independent outside organization that espouses and actively promotes a political and ideological philosophy which they oppose and do not wish to support.

In Galda I, we noted that “considerable deference” should be accorded the university’s judgment that the organization was “an appropriate participant in the total university forum.” In order to “overcome the presumptive validity of the university’s judgment and to make out a prima facie case that exaction of the fee conflicts with the mandate of First Amendment,” plaintiffs must establish that PIRG “functions essentially as a political action group with only an incidental educational component.” Id. at 166. In addition, we stated that the university is free to “counter the plaintiff’s showing or to otherwise demonstrate a compelling state interest by establishing the importance of the challenged group’s contribution to the university forum.” Id. at 166-167.

In speaking of a prima facie case, Galda I referred to the “exaction of the fee”, referring to the mandatory assessment of the payment to PIRG. The elements of compulsion and payment to an outside organization with which the plaintiffs disagree are the significant factors that trigger the inquiry in this case.³ Whether the compulsion occurred through unilateral decision of university officials or only after the vote of a majority of the students does not diminish the infringement on the plaintiffs’ right to withhold their support to an organization whose aims they find repugnant.

At trial plaintiffs presented evidence that PIRG, in at least some, if not a majority, of its activities is an entity devoted to political and ideological objectives. Defendants did not dispute that fact, but instead focused on the educational benefits associated with participation in the PIRG program. As noted earlier, these include observing governmental agencies in action, public speaking, research, leadership development, and other factors which may ordinarily be obtained from the “hands-on” training common to any large organization and particularly one that has some contacts with government.

The educational advantages described in the testimony do not differ from those that might be obtained by working with, or for, an independent organization such as the Republican or Democratic Party, or a clearly religious group which has undertaken an active and vigorous proselytizing program. As we have said, “it could not be seriously contended that student fees could be fun-nelled to such a group.” 686 F.2d at 166. Yet, the educational component that the University presents here as justification would be precisely the same were the recipient group one that clearly could not receive affirmative state support.

PIRG’s efforts are primarily devoted to changing conditions outside the University. For example, its interest in environmental and energy concerns focuses on state-wide or national issues. Similar in scope is its commitment to enactment of an equal rights amendment, reform of tenants rights, and a nuclear weapons freeze. While such matters may affect the general public, those causes are not particularly germane to students of the University qua students.

Although such issues as educational loans and consumer protection reports on businesses near campus may come closer to direct student interests, they do not minimize the group’s activities of a broader scope. In this respect, PIRG’s programs and purposes are quite unlike a service organization, such as a bar association, which in the course of promoting the specialized interests of the group may at times take positions opposed by various members. See Lathrop v. Donohue, 367 U.S. 820, 81 S.Ct. 1826, 6 L.Ed.2d 1191 (1961).

Although the training PIRG members may receive is considerable, there can be no doubt that it is secondary to PIRG’s stated objectives of a frankly ideological bent. To that extent the educational benefits are only “incidental” — arising from or accompanying the principal objectives — and subordinate to the group’s function of promoting its political and ideological aims.

It is not quantity that determines whether the benefit is incidental in circumstances such as these. That assessment is made by examining the nature of the group and its primary function. Galda I made that point in noting that in the procedural posture of the case, the court had to assume “at least one of PIRG’s functions is purely political, and non-educational in nature.” 686 F.2d at 164-65. The district court in reciting PIRG’s history stated, “Under the students’ proposal, PIRG was to be a non-partisan, non-profit corporation which would research and lobby for social change.” 589 F.Supp. at 483. Those functions have continued to be PIRG’s raison d’etre as a review of its programs and activities confirms.

The experience gained from lobbying activities as well as advocacy, leadership, public speaking, and research might just as readily be obtained by membership in the University sponsored Legislative Action Committee, by participation in internships in various governmental agencies also available to Rutgers students, and through the work of other campus organizations.

Moreover, it must be recognized that because the plaintiffs are opposed to PIRG’s ideological aims, the educational benefits flowing from PIRG’s activities will not be available to them. Their beliefs exclude them from access to the programs that offer the educational opportunities. Despite that bar to participation, plaintiffs must nevertheless pay to support the organization.⁴

We conclude that defendants did not overcome the caution we raised in our first opinion — the educational component cannot obscure the underlying substance of the plaintiffs’ complaint that they were compelled to finance a political entity whose function is to attain certain fixed ideological objectives. 686 F.2d at 166.

Moreover, the evidence revealed that it is impossible to isolate the “educational component” from the ideological pursuits for purposes of apportioning the expenses attributable to each. It is difficult to believe that it could be otherwise since the educational benefits are intertwined and integrated with the political and ideological objectives. It is no simple task, and probably an impracticable one, to formulate principles that could be used to separate the educational component of lobbying, campaigning, or researching a paper that urges passage of certain legislation from the organization’s ideological goal which is directly advanced by those activities.

The courts have observed that it is not always easy to prorate the expenses properly incurred by a union as collective bargaining representative with those involving political action. See Ellis v. Brotherhood of Railway, Airline and Steamship Clerks, 466 U.S. 435, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984). It is however even more complex in the case of PIRG because the educational gains are obtained only in direct pursuit of the ideological objectives.

In Galda I, we left open the possibility that the University might demonstrate a compelling state interest by establishing the importance of PIRG’s “contribution to the university forum.” Because he believed that plaintiffs had failed to present a prima facie case, the district judge did not reach this question. The defendants did, however, have the opportunity to produce evidence on this point and rather than remand again for a determination of what is primarily a legal question, we address the matter here.

The University shoulders a heavy burden to justify its determination to levy the assessment. A state may not choose means that unnecessarily restrict constitutionally protected liberty, if there is open a less drastic way of satisfying its legitimate interest. Nor may the state choose a legislative scheme that broadly stifles the exercise of fundamental liberties. Elrod v. Burns, 427 U.S. 347, 363, 96 S.Ct. 2673, 2684, 49 L.Ed.2d 547 (1976); Buckley v. Valeo, 424 U.S. at 25, 96 S.Ct. at 637.

The compelling state interest in eliminating “free riders” in the interest of preserving labor peace in the union dues context, see Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961), does not exist in the circumstances here. The University has presented no evidence, nor do we believe it could, that the educational experience which it cites as justification could not be gained by other means which do not trench on the plaintiffs’ constitutional rights. We recognize that a union’s concerns and those of a university differ, particularly in light of the latter’s traditional interest in presenting and discussing differing philosophies and theories on a wide range of topics. The relevance of Abood, however, is not lost because of those distinctions.

As we cautioned earlier, we do not here decide the constitutionality of a university’s allocation of a compulsory activity fee. But a comparison of that procedure with the “content neutral” funding scheme for entities outside the university as used at Rutgers is helpful in demonstrating the objectionable features of the mandated fee challenged here.

One of the arguments used to justify allocation of activities fees to speakers or campus organizations that present controversial views is the educational necessity of exposing the university community to a diversity of responsible opinion. In fulfilling its role, it is expected that a university will strive for balance and afford adequate opportunity for offering opposing viewpoints.

There is room for argument that a university’s role of presenting a variety of ideas is a sufficiently compelling reason for some infringement of First Amendment rights just as is the need for labor peace in the union dues cases. That contention loses its force, however, when an outside organization independent of a university and dedicated to advancing one position, is entitled to compelled contributions from those who are opposed. In that situation a university’s ability to insure a balance in access is infringed, if not prevented, in some circumstances and the quid pro quo for a payment to a forum disappears.

Generally, when an activity fund comes into existence, all student groups on campus are free to compete for a fair share. That is not the situation here where the mandated contribution is earmarked for only one organization, an organization which has no obligation to use any part of the fund for the benefit of a group which pursues a different philosophy.

The University appears to argue that the neutral funding policy supplies the requisite opportunity for equal access, but it is no answer to say that opponents may utilize the “neutral funding” policy to support a vehicle of their own. For example, the opponents may be small in number, as is apparently true here, and unable to attract the necessary student support. No extended discussion is required to explain the basic concept that the First Amendment protects the views of a minority as well as those of the majority.

Moreover, even if the opponents succeed in achieving mandatory contributions for their own organization, they are not relieved from the obligation to pay a fee to a group with which they disagree. For example, if the university compelled a student to make separate contributions to both the Democratic and Republican National Committees, the evil is not undone; it is compounded. Adherents to each party would be forced to pay a fee to the other political group, a clearly unconstitutional exaction.

The objection to funding an outside entity through the “neutral funding” procedure is that the result achieved is not neutral and does not achieve equal access. The process offers an opportunity for a majoritarian group to compel support from minorities in circumstances where no compelling state interest justifies the limitation on First Amendment rights.

The situation is quite different than that which would be presented if the outside organization, for example, were a well equipped museum or symphony society where the university had no comparable facilities to enhance its teaching capacity. Nothing in the record here demonstrates that in its ordinary operations the University is unable to offer students the opportunity to learn about environmental or consumer concerns or similar matters advocated by PIRG.

The University has thus failed to show any compelling state interest that would justify overriding the plaintiffs’ First Amendment rights.

It follows, therefore, that the district court erred in concluding that plaintiffs had failed to make out a prima facie case. They presented credible evidence that PIRG was an outside independent, ideologically-oriented organization whose activities they opposed but were nevertheless compelled to support directly through a mandatory fee. Those facts were not disputed, and by presenting that evidence plaintiffs established a prima facie case.

The University relied on the deference to be given its judgment as to PIRG’s educational value. But as has been discussed, that judgment was not supported by evidence of an educational component other than that incidental to, and inherent in, the ideological activities. Moreover, the district court did not make any findings to demonstrate a compelling state interest that would justify utilization of PIRG as a vehicle for the incidental educational benefits in preference to a campus, or another outside organization, which did not require the compelled support of plaintiffs.

Defendants did not produce any evidence that would allow an advance proration of the mandatory fee, see Robinson v. New Jersey, 741 F.2d 598 (3d Cir.1984), and we have previously found the rebate procedures unsatisfactory. Hence, the exaction of a compulsory fee payable to PIRG cannot continue. We, of course, make no judgment as to a voluntary contribution program.⁵

Accordingly, the judgment of the district court will be vacated and the case will be remanded to the district court for the entry of an order enjoining the assessment of the mandatory fee payable to PIRG.

1 . PIRG’s concerns include environmental preservation efforts, consumer protection, womens rights, tenants rights, tuition policies, and energy conservation. Assisted by several Rutgers law students, PIRG’s staff attorney has at various times represented it in litigation connected with these programs.

2 . See, e.g., Gaebler, First Amendment Protection Against Government Compelled Expression and Association, 23 B.C.L.Rev. 995 (1982); Cantor, Forced Payments to Service Institutions and Constitutional Interests In Ideological Non-Association, 36 Rutgers L.Rev. 1 (1983).

3 . These factors distinguish the situation where the challenged group is part of the university community and is funded through the student activity fee.

4 . Moreover, because they disagree with PIRG's policies, plaintiffs would not likely become members and hence would have no voice in the selection of leaders for the group. Again, that does not relieve them from the compulsory assessment.

5 . At trial, the voluntary funding procedures used by PIRG at the University of Minnesota and the University of Massachusetts were described in some detail. We do not express any views on those procedures, but they do differ from Rutgers’ because they allow students to decide in advance if they wish to support PIRG.