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June 20, 1984

JOSEPH P. GALDA, et al., Plaintiffs,

The opinion of the court was delivered by: BROTMAN

 BROTMAN, District Judge

 This action is brought by nine students at Rutgers, the State University of New Jersey ("Rutgers"), challenging the constitutionality of the current funding system at Rutgers of the New Jersey Public Interest Research Group, Inc. ("PIRG"). Plaintiffs allege that their First and Fourteenth Amendment rights are violated by the exaction of a refundable fee by the University to support PIRG. After conducting an extensive nonjury trial the court finds that plaintiffs have failed to rebut the presumptive validity of the University's judgment that PIRG contributes educationally to the university community. The court therefore finds that plaintiffs have failed to make out a prima facie case that the exaction of the fee conflicts with the mandates of the First Amendment.


 This action was originally instituted in September 1979 by three students enrolled at Rutgers Camden College of Arts and Sciences. The plaintiffs filed suit against Rutgers under 42 U.S.C. § 1983, alleging that university officers and administrators were violating plaintiffs' rights under the First Amendment *fn1" by exacting with each semester's bill a refundable fee to support PIRG, a non-profit, non-partisan, student-run corporation engaged in research, lobbying and advocacy for social change.

 In 1981, this court granted defendants' motion for summary judgment. Galda v. Bloustein, 516 F. Supp. 1142 (D.N.J. 1981). It found, inter alia, that the presence of a refund procedure for students not wishing to support PIRG preserved the constitutionality of the funding policy. The plaintiffs appealed this decision.

 On appeal, the Third Circuit Court of Appeals reversed this court's grant of summary judgment and remanded the case for a trial. Galda v. Bloustein, 686 F.2d 159 (3rd Cir. 1982). The Third Circuit reasoned that on the record before it there existed a genuine issue of material fact as to whether the exaction of the PIRG fee infringed upon the plaintiffs' constitutional rights. 686 F.2d at 165. The court initially noted that Rutgers had determined that PIRG was educationally valuable and stressed that "considerable deference" must be accorded to the University's determination that "an organization [such as PIRG] is an appropriate participant in the total university forum." Id. at 166. *fn2" The circuit court held, however, that the University's judgment about the educational value of PIRG to the university community was not absolutely immune from judicial scrutiny. The court ruled that a more complete factual record was needed as to the nature of PIRG and its contribution to the university forum and outlined the following test:

To overcome the presumptive validity of the university's judgment that an organization contributes to the university community, and to make out a prima facie case that exaction of the fee conflicts with the mandates of the first amendment, persons objecting to the fee must establish that the challenged group functions essentially as a political action group with only an incidental educational component. At that point the burden of producing evidence to counter the plaintiffs' showing or to otherwise demonstrate a compelling state interest shifts to the university. We do not rule out the possibility that, even in the face of an unrebutted prima facie showing, the university might demonstrate a compelling state interest by establishing the importance of the challenged groups contribution to the university forum.

 Id. at 166-67. *fn3" The circuit court ordered a remand because this court "did not have an opportunity to evaluate the plaintiffs' showing against the standards we have enunciated nor did the university have the opportunity to counter the plaintiffs' showing or otherwise set forth a compelling state interest." Id. at 167.

 Pursuant to the mandate on remand, this court conducted a ten-day trial at which past and present members of the Rutgers community appeared and testified about PIRG and its contributions to Rutgers. Dr. Edward Bloustein, President of Rutgers, testified at length about the creating of the funding mechanism of PIRG and his view of PIRG's contribution to the university community. Eminent experts in political science, education and university administration appeared and testified about PIRG at Rutgers and about the PIRGs at other institutions of higher learning around the country.

 The court's findings focus on the creation and nature of the current funding mechanism for PIRG at Rutgers; the organizational structure of PIRG; the scope of PIRG's activities; the experiences of Rutgers faculty and students with PIRG; and the opinions of experts about the educational value of PIRG and its contribution to the university community. The court does not attempt to restate all of the information presented at trial, but instead focuses on the framework discussed above to reach a reasoned conclusion as to whether plaintiffs' constitutional rights have been violated by defendants' actions.


 A. The Parties

 1. The plaintiffs in this action are nine individual students at the various constituent campuses of Rutgers, the State University of New Jersey. The parties have stipulated that each plaintiff finds positions taken by PIRG objectionable *fn4" (Joint Stipulation ("Stipulation") 3). Each plaintiff paid the refundable PIRG fee for one or more semesters during which he or she was a student at Rutgers (Stipulation 2).

 2. This suit was filed naming as defendants officers and administrators of Rutgers. For purposes of this action only, the parties have agreed that action taken by Rutgers is state action (Stipulation 5). Shortly after the lawsuit was filed, PIRG intervened as a defendant and has since then actively participated as a party in this case.

 B. The Creation of the Special Funding System at Rutgers

 3. The overwhelming majority of student organizations at Rutgers are funded through a mandatory, non-refundable student activities fee assessed against students each semester (Joint Exhibit ("Exhibit") 379; (Tr. VI, 30-33)). The apportionment of this student activities fee for student organizations is determined by a relatively small group of students on a student fee board (Tr. VI, 46). Students in general have no opportunity to vote on the specific apportionment of this mandatory fee among student groups at Rutgers (Tr. VI, 45-47).

 4. Many of the student organizations funded through the mandatory, non-refundable student activities fee take positions on political and social issues (Tr. VI, 32-33). Such groups include the American Civil Liberties Union, the Jewish Awareness Club, the National Association for the Advancement of Colored People and the Gay Alliance, an organization which advocates the rights of homosexuals (Tr. I, 48; Tr. V, 70-72; Tr. VI, 33-35; Exhibit 379). Also funded through the non-refundable student activities fee is the Rutgers University Legislative Action Committee ("RULAC"), a group which takes positions on issues of social importance and lobbies to further its positions before legislators in Trenton, New Jersey and Washington, D.C. (Tr. VI, 69-71). Rutgers further allows student groups such as the College Republicans to use the facilities of the University (Tr. I, 148-49).

 5. Dr. Edward Bloustein, the President of Rutgers and an expert in college level education and university administration, strongly supports the presence of these groups of the campuses of Rutgers because they create the "widest possible forum for the interchange of views in the University community" (Tr. VI, 37). *fn5"

 7. Under the students' proposal, PIRG was to be a non-partisan, non-profit corporation which would research and lobby for social change (Exhibit 6). Similar proposals for PIRGs were introduced in the early 1970s in other universities around the country (Tr. VI, 174 (University of Minnesota); Tr. VII, 89-93 (University of Massachusetts); Tr. X, 86 (Queens College); Tr. X, 94 (Bennington College)).

 8. PIRGs were initially welcomed by university administrators among other reasons because they were a vehicle for students to develop and further their political and social beliefs in a socially acceptable manner (Tr. VI, 23; Tr. VII, 92-93; Tr. X, 89). PIRGs developed nationally shortly after the height of student unrest stemming from American involvement in the Vietnam war (Tr. VII, 92-93). The proposed structure of PIRGs was suggested by Ralph Nader and Donald Ross in their book "Action For a Change," published in 1972 (Exhibit 165; Tr. VI, 22-23).

 9. As noted above (Finding No. 6), the students' proposal to Dr. Bloustein was for a specialized funding procedure which would be unique for PIRG (see Exhibits 6, 169). The Rutgers administration rejected the students' proposal, reasoning (a) that the University administration did not directly authorize funds for any specific student activity (Tr. VI, 18); and (b) because it believed that a broad and neutral funding policy for groups outside the mandatory student activities fee would better encourage a broad forum for the expression of diverse student viewpoints (Id.).

 10. The Rutgers University Board of Governors ultimately enacted such a neutral funding policy, which was originally proposed by Dr. Bloustein (Tr. VI, 18) and is set forth in the margin in its entirety as amended in 1973. *fn6" Two key eligibility requirements were established by the University in its neutral funding policy.

b. After the concept plan is approved for its educational value, the organization seeking funding must demonstrate widespread student support by attaining a minimum affirmative vote of 25% plus one of all eligible voting students (or 50% of the total student body) at each Rutgers campus at which it seeks funding. Referenda must be held every three years after initial approval of funding is approved by the students. At each referendum, students are free to campaign for and against the groups seeking to participate in the special funding program (Tr. IX, 67-69). Twenty-five percent of the student body was viewed as an extremely stringent requirement, as the general turnout at student elections at Rutgers is only ten to fifteen percent of the student body (Tr. VI, 24).

 11. The Senate Education Policy Planning Committee endorsed the neutral funding mechanism described above. It felt that the funding system and its operation in practice would be a valuable adjunct to the educational opportunities available at Rutgers (Tr. VI, 20-21). Dr. Bloustein concurred with this judgment at the time the policy was passed by the University and reiterated his belief at trial that the funding mechanism in itself is educational (Tr. VI, 22-24, 45-47).

 12. The University's position about the educational value of the neutral funding system is based on several considerations:

a. The funding procedure requires the funded group to regularly "meet its constituency" to seek their approval through the periodic referenda (Tr. VI, 23). Dr. Bloustein believes there is "great educational value" in the process of having students publicly campaign to win the support of fellow students whom they purport to represent (Tr. VI, 23-24). The experience of advocating one's position in the referendum process forces proponents of PIRG to learn their opponents' arguments in order to rebut them, in itself an educational introduction to the political process (Tr. VI, 45, 57).
b. The referendum procedure encourages diversity at Rutgers, since it provides a freer forum for a wider expression of student opinion than the student fee boards used to disperse the mandatory student activities fee (Tr. VI, 46). The process is more "democratic" than the existing funding of student activities (Tr. VI, 47), in that it broadens the range of organizations funded with student fees (Tr. VI, 46-47). Moreover, the funding procedure is controlled by the general student population and is therefore independent of the sometimes acrimonious disputes of the student fee board as to the appropriate disbursement of student fees (Tr. VI, 49).

 13. Following the enactment of the neutral funding mechanism by the Rutgers Board of Governors, PIRG campaigned for and won student referenda at several Rutgers campuses (Exhibit 17). PIRG has operated continuously at Rutgers since 1972, essentially supported by the refundable student fee (Stipulation 8; Tr. III, 170). Rutgers has facilitated the collection and transfer to PIRG of a total of over $800,000 over the past twelve years (Tr. II, 109).

 14. The PIRG fee was originally $1.50 per semester per student. The fee approved in the most recent student referenda is $3.50 per semester (Stipulation 12). PIRG has complied with the requirements of the University's funding policy by submitting a "concept plan" and winning the approval of the university administration every three years since 1972 (Tr. VI, 54; Exhibit 171 (1975); Exhibit 178 (1978); Exhibit 184 (1981)). Rutgers President Bloustein firmly believes that PIRG has a valuable educational purpose and functions only incidentally as a political group (Tr. VI, 54-55, 66-68).

 15. The special funding policy is neutral and is not limited to the funding of PIRG. The Daily Targum, the undergraduate newspaper at Rutgers' New Brunswick campus, has obtained student fees pursuant to the funding policy since 1980 (Stipulation 11; Tr. IX, 71). The Targum takes editorial positions on political issues (Tr. VI, 48-49) and endorses candidates running for elective public office (Tr. VI, 49-52).

 16. PIRG generally wins overwhelming margins in the funding referenda, sometimes as much as 90% of the votes cast (Tr. IX, 67); Exhibit 393 (referenda results collected)). At the time of trial, PIRG fees were being collected from students at the following constituent campuses of Rutgers: Cook College, Douglass College, Rutgers Law School/Camden, Rutgers Law School/Newark, and Rutgers College at New Brunswick (Tr. IX, 94). PIRG fee referenda have recently failed to attain the minimum vote required for funding at Rutgers' other two campuses, Livingston College and the Rutgers Camden College of Arts and Sciences (Tr. IX, 64-65). The defendants have informed the court that after the trial in this action a PIRG referendum passed in the Spring of 1984 at Livingston College, leaving Rutgers-Camden as the only Rutgers campus where students have not approved the funding mechanism for PIRG (Galligan Affidavit, paras. 4-5).

 17. The refundable student fee for PIRG is named as a separate line item on students' bills each semester (Exhibits 1, 2 and 3). Rutgers describes the fee as mandatory (Stipulation 6), but does not sanction students who refuse to pay the fee (Tr. VI, 27; Tr. IX, 77). Approximately three to five percent of the students who have paid the PIRG fee request a refund from the University of their PIRG fee (Tr. IX, 81).

 18. A leaflet that describes PIRG, its activities and the refund procedure is enclosed with each term bill (Stipulation 13; Exhibit 4). The back of that leaflet contains a form which those students desiring a refund must complete and submit to PIRG (Stipulation 14). PIRG staff members keep confidential the names of those students seeking refunds of their PIRG fees (Tr. IX, 85). The refund form does not ask for any explanation or statement or reasons for the refund request (Stipulation 15). No plaintiff is aware of any incident in which any Rutgers student has been discouraged by Rutgers, by PIRG, or by any other person or organization, from requesting a refund of the PIRG fee (Stipulation 16). No plaintiff is aware of any incident in which any Rutgers student has been subjected to any type of reprisal or punishment for requesting or receiving a refund of the PIRG fee (Supplemental Stipulation).

 19. When PIRG receives the refund forms, it contacts Rutgers to determine whether the students seeking refunds have in fact paid the PIRG fee (Tr. IX, 76). After PIRG receives this verification from Rutgers, it sends out refund checks to the students who have requested them (Tr. IX, 78). Refunds are generally sent out in the latter part of the semester in which students have paid the fee (Tr. IX, 76-80).

 20. At the beginning of each semester, Rutgers pays an advance to PIRG up to ninety percent of the funds collected for PIRG from students upon registration (Tr. IX, 79). The University deducts from the amount sent to PIRG its expenses in administering the funding system, which ranges from $2,000 - $3,000 per semester (Tr. IX, 80). At the end of each semester, Rutgers pays PIRG the balance of the PIRG fees collected for which no refunds were given (Tr. IX, 79). Students who ...

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