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GALDA v. BLOUSTEIN

June 19, 1981

Joseph P. GALDA, Paul Ewert and Kristina Farrow, Individually, and upon behalf of all others similarly situated, Plaintiffs,
v.
Dr. Edward J. BLOUSTEIN, Individually, and as President of Rutgers, The State University, Dr. Norman Reitman, Individually, and as Chairman of the Board ofGovernors of Rutgers, The State University of New Jersey, Donald S. McNaughton, David A. Werblin, Katherine Elkus White, Donald M. Dickerson, Sanford M. Jaffe, Robert Kaplan, Edward Kramer, Linda Stamato, Robert J. Torricelli, Individually, and as members of the Board of Governors of Rutgers, The State University of New Jersey, and Walter K. Gordon, Individually, and as Dean of Rutgers Camden College of Arts and Science, Defendants



The opinion of the court was delivered by: BROTMAN

Traditionally, First Amendment litigation has focused on the affirmative rights of individuals and groups to freedom of speech and association. In recent years, however, the increasing centralization of society has led to free speech concerns of a somewhat different nature that individuals not be compelled to adhere to or support ideological positions espoused by powerful governmental or commercial organizations. See, e.g., First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978); Wooley v. Maynard, 430 U.S. 705, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977). In addition, the increasing complexity of society has inexorably led to significant governmental involvement in matters, such as higher education, that were once the exclusive domain of individuals and private organizations. These governmental incursions into new areas frequently raise troublesome First Amendment issues regarding the proper extent of governmental involvement in speech. See, e.g., Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S. Ct. 1794, 23 L. Ed. 2d 371 (1969); Maryland PIRG v. Elkins, 565 F.2d 864 (4th Cir. 1977). The instant case implicates precisely these concerns.

In this action, three students at Rutgers-Camden College of Arts and Sciences (hereinafter "RUCCAS"), a branch of Rutgers, The State University of New Jersey (hereinafter "Rutgers"), challenge the university's policy of funding the New Jersey Public Interest Research Group (hereinafter "PIRG"), a politically active organization whose members are students at various colleges throughout the State. PIRG is funded by a mandatory but refundable fee of $ 2.50 per semester, which is added to the bill of every student at RUCCAS, and other participating colleges. Plaintiffs contend that this policy violates their First Amendment rights. *fn1" Their claim for damages and injunctive relief is asserted pursuant to 42 U.S.C. § 1983, and jurisdiction is predicated on 28 U.S.C. §§ 1331 and 1343. Plaintiffs sought to bring the action on behalf of a class consisting of all students in good standing at RUCCAS at any time between September 1, 1977 and April 1, 1980 who have not received a refund of the PIRG fee. In its opinion of September 16, 1980, this court denied plaintiffs' motion for class certification. Defendants are officers of Rutgers and members of its Board of Governors. PIRG, not originally named as a party, was permitted to intervene as a defendant pursuant to Rule 24 of the Federal Rules of Civil Procedure.

Currently being considered by the court are defendants' motions for summary judgment. Fed.R.Civ.P. 56. *fn2" Plaintiffs have opposed the summary judgment motions and have moved for an order compelling continued discovery. The standard for summary judgment is, of course, a stringent one. Summary judgment may only be granted "when 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 and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Moreover,

 
When considering a summary judgment motion, "(inferences) to be drawn from the underlying facts contained in the evidential sources submitted to the trial court must be viewed in the light most favorable to the party opposing the motion. The non-movant's allegations must be taken as true and, when these assertions conflict with those of the movant, the former must receive the benefit of the doubt."

 Special Jet Services, Inc. v. Federal Ins. Co., 643 F.2d 977, 980 (3rd Cir. 1981), quoting Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3rd Cir. 1976), cert. denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748 (1977). In brief, summary judgment is not designed to provide an easy method for the resolution of factual issues; rather, it is a mechanism to allow the efficient resolution of cases in which there are no genuine issues of fact. See Manetas v. International Petroleum Carriers, Inc., 541 F.2d 408 (3rd Cir. 1976).

 Notwithstanding this stringent standard, the instant action is ripe for summary judgment. Considerable discovery has been conducted, and the relevant facts concerning both PIRG and the Rutgers funding policy are well established. In brief, there is no genuine issue with respect to any material fact. Accordingly, the court must determine the legal issue of whether the funding of PIRG violates plaintiffs' constitutional rights. We conclude that it does not.

 FACTS

 The record of this action, drawing all inferences in favor of plaintiffs, discloses the following facts. In March of 1972, in large measure at the prompting of PIRG, the Rutgers Board of Governors adopted a policy for funding student organizations that were not eligible to receive funds from student activity fees. *fn3" As amended, the policy provides that such student organizations may be funded by means of mandatory fees which are added to each student's term bill. *fn4" Though mandatory, the fee is refundable upon the student's request, and a postcard for the student to request a refund is required to be enclosed with the term bill. The organization is required to reimburse the University for any costs incurred in collecting the fees. To be eligible to participate in the funding program, an organization must present a plan to the University Senate every three years for "concept review." If approved by the University Senate and President, the organization must be endorsed by the students in a referendum, which must be held at each participating college every three years. To be funded, the organization must receive the approval of a majority of those voting; the affirmative vote is required to exceed 25 percent of the eligible student body.

 
As it currently operates at RUCCAS, the funding system is relatively straightforward. A fee of $ 2.50 is added to each student's term bill and identified as the PIRG fee. *fn5" The fee is described as mandatory, though in fact the University does not impose any sanctions upon students who refuse to pay it. A leaflet that describes PIRG and its activities is enclosed with the term bill. The back of the leaflet contains a form which those students desiring a refund must complete and submit to PIRG. *fn6" The form does not ask for any explanation or statement of reasons for the refund request. It takes a considerable period of time, generally several months, before the refunds are actually made. Each semester, Rutgers bills PIRG for the costs of administering the fee collection program, which generally amounts to approximately $ 300.00. PIRG currently receives approximately $ 15,000.00 per year from RUCCAS students through the funding policy. Student fees constitute a significant amount of PIRG's total funding. Much of the remaining funds come in the form of grants from various government agencies, usually allocated for particular research projects.
 
New Jersey PIRG is a statewide student organization with approximately 21,000 members at eight colleges. It is a non-profit organization engaged in research, writing, publicity, lobbying, and litigation with respect to numerous controversial public issues, including nuclear power, energy conservation, abortion rights, and environmental protection. Plaintiffs oppose the positions PIRG has taken on many of these issues. Although PIRG does not support or oppose candidates for public office, it vigorously asserts positions with respect to pending legislation. It is incorporated under the laws of New Jersey and is completely independent of any control by Rutgers or University officers. PIRG's policies are determined by its Board of Directors, which is composed of student representatives from the participating colleges. The implementation of these policies is largely entrusted to PIRG's professional staff and the students who work under its direction.
 
PIRG has two basic goals. One is to effect social and political change in the areas of its concern. PIRG's second goal is to involve university students in public affairs so as to broaden their educational experiences and help develop a more sophisticated and active electorate. PIRG accomplishes these goals by giving students the opportunity to participate on every level of its activities, from conducting basic research to formulating organizational policy. A significant number of students at RUCCAS actively participate in PIRG internship programs, some of whom receive academic credit for their work.
 
DISCUSSION
 
Plaintiffs challenge the funding of PIRG on First Amendment grounds. It is immediately apparent, however, that plaintiffs do not have a classical First Amendment claim: the funding system works no abridgement or suppression of plaintiffs' affirmative rights to freedom of speech or association. Rather, plaintiffs contend the funding system violates their constitutional rights in three somewhat distinct respects. First, relying primarily on Abood v. Detroit Board of Educ., 431 U.S. 209, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977), and Wooley v. Maynard, 430 U.S. 705, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977), they argue that the funding policy unconstitutionally compels their support of ideas with which they disagree. Secondly, relying on NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958), they contend that the refund procedure impermissibly intrudes on their freedom of association and freedom to refrain from disclosing their views. Thirdly, plaintiffs argue that the funding policy is a form of governmental support of a political orthodoxy, which, they contend, is prohibited by the First Amendment. We shall consider these arguments seriatim.
 
Plaintiffs' initial argument is that the state may not compel their support of social and political ideas with which they disagree. They contend that the Rutgers funding policy conditions their right to attend a public university on their financial support of ideologies they oppose and that the policy is therefore unconstitutional. In this regard, plaintiffs rely principally on Abood, supra, and Wooley, supra. See also Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980); Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972). If, indeed, plaintiffs' right to attend a public university were conditioned ...

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