Opinion
Rehearing Denied July 13, 1988.
Review Granted Sept. 29, 1988.
Previously published at 215 Cal.App.3d 651, 226 Cal.App.3d 1098 Arlo Hale Smith, San Francisco, Philip A. Larrabee, Berkeley, for plaintiffs and appellants.
Brad Sparks, in pro. per.
Pacific Legal Foundation and Richard M. Stephens, Anthony T. Caso, Ronald A. Zumbrun, Sacramento, for amicus curiae.
Mark Himelstein, Himelstein, Savinar, Petrocelli & Curtice, San Francisco, for defendant and respondent ASUC.
Fred Takemiya, James E. Holst and Christine Helwick, Office of the General Counsel, Berkeley, for Regents.
RACANELLI, Presiding Justice.
This action challenges the collection and use of a mandatory student activities fee by the University of California, Berkeley, to fund certain activities of the student body organization, the Associated Students of the University of California (ASUC).
STATEMENT OF THE CASE
In 1979, four plaintiffs filed suit in superior court for declaratory and injunctive relief against the university and ASUC seeking to have the mandatory activities fee imposed upon all students who attend the University of California at Berkeley declared unconstitutional and in violation of statute. (Smith v. Regents, No. 519977-2.)
In 1980, 32 students from UC Berkeley sued ASUC in small claims court seeking a refund of the activities fee. In response, ASUC filed suit in superior court to enjoin the small claims actions. (ASUC v. Sparks, No. 533997-6.)
The Smith case and Sparks case were eventually consolidated. In 1982, the trial court granted a partial summary adjudication in favor of defendants UC and ASUC. The court concluded that "the mandatory student activities fee imposed on all students at the University of California, Berkeley, is constitutional and legal on its face and as applied."
For the sake of convenience, the students will be referred to as "plaintiffs" and the university and ASUC as "defendants" unless otherwise shown.
This order was interpreted by the parties as resolving issues of imposition and collection of the fees. However, issues relating to the expenditure and use of those fees were left unresolved. Those issues were tried by the court sitting without a jury. The trial court ultimately determined that the use of the fee to provide financial support for the ASUC activities was not invalid. Plaintiffs have appealed from the judgment entered in favor of defendants UC and ASUC. FACTS
Viewing the record in a light favorable to respondents (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926, 101 Cal.Rptr. 568, 496 P.2d 480), we glean the following salient facts.
Since 1955, all students enrolling at the University of California, Berkeley, have been required to pay a student activities fee as a condition of enrollment. At the time of the trial (1982), the fee was $12.50 per quarter. Of that amount, the university retains $4 applied towards redemption of the bonds issued to finance construction of the Student Union building on the Berkeley campus. The remaining amount is transferred to the ASUC for allocation of $1.50 to support the Ethnic Studies Program and $7 to finance the student government and student activities.
Since the early 1900's, the ASUC has been officially recognized by the university as the entity responsible for administration and management of student government and student activities on the Berkeley campus. The ASUC, a nonprofit unincorporated association, has a full-time staff of approximately 85-90 persons and a part-time staff of 250-400 persons, most of whom are students.
In addition, the ASUC also owns and operates a campus bookstore and a ski lodge at Norden, California; it also manages the Student Union building and Eshelman Hall. The revenues derived from these business enterprises supplement the allotted student body fees.
Thus, in 1981-1982, for example, the total amount spent by ASUC to support student government, student activities groups and student operations was $1,016,505. Of that total, $607,635 was collected from the quarterly student body fee and the remainder from other revenues.
ASUC Operations
I. Student Government
The ASUC operates student government through the ASUC Senate, a legislative (policy-making) body composed of 30 elected student representatives. An adjunct body, the Graduate Assembly (representing graduate students), consists of representatives elected by the various graduate departments. Two delegates from the Graduate Assembly are members of the ASUC Senate.
The ASUC Senate meets weekly during the academic school year. Occasionally, controversial public issues are presented to the Senate for debate and a resolution adopted expressing the "position of the ASUC." By way of example, during the several years preceding trial, the ASUC Senate adopted resolutions expressing ASUC's support of Amnesty International's campaign against political prisoners in Indonesia, gay and lesbian rights, the ERA, gun control, the reelection of Ron Dellums, and a Berkeley marijuana initiative. It has also adopted resolutions opposing torture in Uruguay, nuclear power and draft registration.
Parenthetically, we note that the ASUC also has adopted a policy of "social responsibility" in connection with the operation of its commercial facilities. Consequently, it will not do business with companies that invest in South Africa, and it supports boycotts of Coors Beer, Nestle's products and Dole produce.
University officials have consistently viewed ASUC Senate resolutions dealing with matters of public concern as compatible with university rules or regulations. The university's written policies declare, in pertinent part: "Student governments shall have the right to address and take positions on public issues. Positions on issues taken by student governments shall not be represented as or deemed to be official positions of the University. Compulsory student fees shall not be expended in support of such positions except for University-related purposes." Thus, the direct use of student fees to support a particular cause is expressly prohibited. Resolutions on public issues adopted by the ASUC Senate do not, however, involve the expenditure of funds and do not purport to represent the position of the university.
II. Student Activities Groups
The ASUC provides funding to approximately 150 student activities groups.
The activities of the groups are confined to the campus, generally consisting of efforts to educate fellow students about current issues and to promote debate. Their views are expressed through printing and/or distributing literature, staffing tables at Sproul Plaza, holding rallies or forums with one or more speakers, showing films and the like. Some groups urge overt political action: they circulate petitions and encourage students to send letters or postcards to various government officials. But none of the student groups purport to express the position of the university or of the ASUC.
In order to obtain ASUC funding or use of university facilities, a student group (consisting of at least four students) must first register with the university. Registration is accomplished by submitting a copy of its constitution and the name of its student representative. In this manner, the university ensures that group members are students in good standing and that the group complies with university rules and regulations.
One group, for example, the Revolutionary Communist Youth Brigade, was denied registration as a student group due to its disruptive behavior in classes.
Once registered, any student group desiring funding must submit an application to the ASUC Finance Committee identifying its membership and membership requirements, its goals and a line/item request for expenditures. The ASUC Finance Committee (comprised entirely of students) reviews each application in accordance with written ASUC guidelines in determining whether to approve the funding application. The written guidelines provide, inter alia, that: "The requested funds shall be used for purposes or programs related to the University or beneficial to the student body of the University of California [and p ] shall not be used for purposes or programs connected with partisan political activities or any ballot measure with the exception of nonpartisan educational forums on issues of interest."
Accordingly, student groups supporting partisan political activities (e.g., the Young Republicans or the Young Democrats) are ineligible for funding. And while religious proselytizing groups are similarly ineligible, student activities groups employing religious names may qualify if the funds are used for cultural and educational activities and not for the expression or practice of a religion.
Included within the former classification are groups such as the Jewish Student Board, the Hindu Students Association and the Moslem Students Society.
The Finance Committee recommendations are considered by the full ASUC Senate as a part of the annual ASUC budget.
Funding of student activities groups is content neutral. There is no evidence that funding was approved or denied on the basis of a group's position on a particular issue. With the exceptions noted, any group is eligible for funding irrespective of its political or ideological orientation.
However, funding would not be approved if membership requirements were found to be discriminatory. The ASUC guidelines provide that the organization must be "open to all duly registered students of the University of California and [the organization's documents] shall contain no provision limiting membership to any specific group or class or persons or otherwise discriminating against any student on the basis of race, creed, religion, ethnicity, sex, or sexual persuasion."
Student activity groups are only funded on a reimbursement basis. That is, each group must submit an expense voucher for reimbursement or direct payment to a supplier.
Finally, all student groups are required to file with ASUC mid-year reports of their activities. The failure to file such reports or any violation of university or ASUC rule or regulation subjects that group to suspension of any unused funds.
The record convincingly demonstrates that none of the student activities groups supported by ASUC violate university or ASUC rules or regulations. In the judgment of university officials, the funding of these groups creates a forum for the exchange of ideas and serves an important educational purpose.
III. Other ASUC Operations
In addition to funding student activity groups, the ASUC sponsors certain student-run operations, usually managed by a professional staff. Because student operations are part of ASUC, funding for these operations is handled differently. Budget requests are routed through the executive director and Operations Committee of the ASUC, who, in turn, make recommendations to the ASUC Senate.
These ASUC student operations serve to provide information to the student body and to represent the students' views to the community. The activities and policies of these student operations are monitored by ASUC Senate oversight committees.
At the time of trial, funded ASUC student operations included the following:
1) a draft counseling center;
2) a recycling project;
3) a renters' assistance project: this project presents the student viewpoint at local agencies, e.g., the Berkeley Rent Stabilization Board concerning proposed rent increases; it also assists students in small claims actions and provides information to them about their rights as tenants;
4) an academic affairs office representing the student viewpoint in its workings with the Academic Faculty Senate;
5) a campus affairs office which works with the university and participates in university planning, e.g., advocating student housing, lobbying the university not to curtail basic student services in budget reductions; and
6) a voter registration project consisting of mailing informational brochures on ballot issues to students and urging them to register to vote.
One brochure gave a telephone number to call "for assistance." The number was that of Congressman Dellums's office.
ASUC also funds certain student lobbying organizations: the U.C. Student Lobby works in concert with representatives of other UC campuses on student-related issues before the State Legislature and state administrative agencies. By way of illustration of its lobbying activities, the U.C. Student Lobby opposed legislation prohibiting the use of registration fees to fund abortions, supported legislation prohibiting rent discrimination against students, opposed legislation prohibiting mandatory student fees for student activities, and supported legislation reducing budget cuts for
The student body organizations for the state university system and state community colleges also maintain similar lobbies in Sacramento supported by student activities fees.
The Municipal Lobby lobbies Berkeley city agencies on issues relating to students, especially those related to housing, rent control, restrictions on condominium conversions and energy conservation. It also recommends students for appointments to city boards and commissions.
The ASUC National Student Lobby lobbies Congress on student issues and encourages students to write their representatives. The issues of concern at the national level have centered on student financial aid.
ASUC formerly supported the U.S. Student Association, a nationwide student organization which lobbies Congress on a variety of social issues. In 1981, ASUC withdrew its support because the organization was viewed as exceeding the scope of student-related issues.
Under university regulations and ASUC guidelines, off-campus advocacy activities are permitted only when related to student affairs or business. In that context, the university has consistently viewed ASUC operations as being university related.
Thus, for example, rent control lobbying for student housing is considered to be a university-related issue.
DISCUSSION
I. Collection of the Fee
A. Authority of the University
Plaintiffs first contend the university has no legal authority to impose a mandatory student activities fee. The contention is meritless.
Although originally created by legislation in 1867 (Stats. 1867-1868, ch. 244, p. 248), in 1879, the University of California was given independent constitutional footing. (Cal. Const., art. IX, § 9.) The university is constituted as "a public trust" to be administered by the Regents of the university "with full powers of organization and government...." (Cal. Const., art. IX, § 9, subd. (a).) The Regents are vested with "the legal title and the management and disposition of the property of the university ..." and given "all the powers necessary or convenient for the effective administration of its trust, including the power ... to delegate to its committees or to the faculty of the university, or to others, such authority or functions as it may deem wise...." (Cal. Const., art. IX, § 9, subd. (f).)
This constitutional authority has been construed as giving the Regents virtual autonomy in governing the university. "The Regents have been characterized as 'a branch of the state itself' [citation] or 'a statewide administrative agency' [citation]. It is apparent that the Regents as a constitutionally created arm of the state have virtual autonomy in self-governance (Cal. Const., art. IX, § 9)." (Regents of University of California v. City of Santa Monica (1978) 77 Cal.App.3d 130, 135, 143 Cal.Rptr. 276; see also Cal. State Employees' Assn. v. Regents of University of California (1968) 267 Cal.App.2d 667, 671, 73 Cal.Rptr. 449.)
The courts have viewed the Regents as having broad discretion and rule-making authority. " ' "The Regents have the general rule-making power in regard to the University ... and are ... fully empowered with respect to the organization and government of the University...." [Citations.] "[T]he power of the Regents to operate, control, and administer the University is virtually exclusive. [Citations.]" ' " (San Francisco Labor Council v. Regents of University of California (1980) 26 Cal.3d 785, 788, 163 Cal.Rptr. 460, 608 P.2d 277; see also Goldberg v. Regents of the University of California (1967) 248 Cal.App.2d 867, 874, 57 Cal.Rptr. 463.) The Legislature has expressly authorized the creation of a student body organization and the collection of mandatory student activities fees for the state college and university system. (Ed.Code, § 89300.) The funds collected are available for "such purposes of the student body organization as are approved by the trustees." (Ed.Code, § 89302.) In addition, the funds collected are expressly allowed to be spent for lobbying activities. (Ed.Code, § 89300.) Similar statutory authority is provided for the community colleges. (Ed.Code, § 76060.5.)
No such statutory authority exists for the University of California, and none is needed since the university is a constitutional entity whose powers derive from the Constitution and not from the Legislature. Control over the university has been removed from the Legislature and given to the Regents with "full powers of organization and government" and "all the powers necessary or convenient for the effective administration of [their] trust...." (Cal. Const., art. IX, § 9, subds. (a), (f).)
Thus, the conclusion is inescapable that the university has the authority to assess a mandatory student activities fee as a condition of enrollment. (See Erzinger v. Regents of University of California (1982) 137 Cal.App.3d 389, 393-394, 187 Cal.Rptr. 164, cert. den. (1983) 462 U.S. 1133, 103 S.Ct. 3114, 77 L.Ed.2d 1368 [student fee for health services].)
B. Freedom of Association
Plaintiffs next contend that insofar as ASUC has taken positions on controversial issues of the day, the university has denied plaintiffs their freedom of association by forcing them to belong, and give financial support, to an organization which espouses views with which they disagree. The contention must be rejected.
In the context of labor relations, the United States Supreme Court has held that compulsory membership in a labor union, with the concomitant requirement to pay dues, initiation fees and assessments, does not offend the federal Constitution. (Railway Employes' Dept. v. Hanson (1956) 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112.) The Hanson court squarely held that "the requirement for financial support of the collective-bargaining agency by all who receive the benefits of its work ... does not violate ... the First [Amendment]." (351 U.S. at p. 238, 76 S.Ct. at p. 721.) In so holding, the court observed, "there is no more an infringement or impairment of First Amendment rights than there would be in the case of a lawyer who by state law is required to be a member of an integrated bar." (Ibid.)
Subsequently, in Lathrop v. Donohue (1961) 367 U.S. 820, 81 S.Ct. 1826, 6 L.Ed.2d 1191, the United States Supreme Court found no constitutional infirmity in the involuntary membership of an attorney in an integrated bar association. The court emphasized that "[the attorney's] compulsory enrollment imposes only the duty to pay dues." (Id., at pp. 827-828, 81 S.Ct. at p. 1830.) Quoting from the Wisconsin Supreme Court, the United States Supreme Court observed: " 'The rules and by-laws of the State Bar ... do not compel the plaintiff to associate with anyone. He is free to attend or not attend its meetings or vote in its elections as he chooses. The only compulsion to which he has been subjected by the integration of the bar is the payment of the annual dues of $15 per year.' " (367 U.S. at p. 828, 81 S.Ct. at p. 1830.) Noting that the state bar activities served to elevate "the educational and ethical standards of the Bar to the end of improving the quality of the legal service available to the people of the State," the court concluded that "[g]iven the character of the integrated bar shown on this record, in the light of the limitation of the membership requirement to the compulsory payment of reasonable annual dues, we are unable to find any impingement upon protected rights of association." (367 U.S. at p. 843, 81 S.Ct. at p. 1838.)
More recently, in Abood v. Detroit Board of Education (1977) 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261, a group of public employees challenged a statutorily authorized agency shop whereby every employee represented by a union, even though Outside the context of labor relations, the Washington State Supreme Court has held that membership in a student body organization may not be compelled, but a student activities fee could be required of all students and could be used to support the student body organization even though it took positions to which some students objected. (Good v. Associated Students of Univ. of Washington (1975) 86 Wash.2d 94, 542 P.2d 762, 768.)
We do not here decide whether membership in ASUC may be compelled. Some time before trial (apparently after the small claims actions were filed), the university adopted the official position that membership in the ASUC is purely voluntary. Previously, membership in the ASUC had been viewed as a mandatory requirement of registration as a student. And the student registration card signified membership in the ASUC. When this litigation began, however, the registration card was changed with the following declaration appearing on the back of the card: "I am a registered student of the University of California. I voluntarily accept this ASUC membership." The university determined that only those students who signed the back of their registration cards were members of the ASUC.
Plaintiffs argue that the voluntary nature of the membership is illusory since all students are required to pay the activities fee, the university keeps no records of which students are members, and students are not required to display their ASUC "membership card" in order to participate in ASUC activities or services. (ASUC membership is required only to hold ASUC office or to vote in ASUC elections.)
The trial court considered such evidence, however, and found that ASUC membership is voluntary. We are, of course, bound by that finding. (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660-661, 190 Cal.Rptr. 355, 660 P.2d 813.)
But although membership in the ASUC is voluntary, payment of the student activity fee is not. Thus, the constitutional question remains whether plaintiffs can be compelled to provide financial support to an organization to which they elect not to belong. Pursuant to the Hanson/Lathrop/Abood trilogy, we conclude that plaintiffs can properly be required to pay a supporting activities fee.
As in Lathrop, plaintiffs here are not obliged to associate with anyone; they are merely required to pay the activities fees. They are free to decide whether to attend ASUC Senate meetings and free to vote for the ASUC Senator of their choice. Indeed, there is nothing to prevent plaintiffs from seeking senate office and making their own voices heard in senate debates.
Moreover, like the labor unions in Hanson and Abood, the student body organization serves unique and important functions in the educational mission of the university. Not only does it provide an effective mechanism to administer self-government and extracurricular student activities, but it also serves as a representative of the student body for purposes of communication and interchange with the university hierarchy.
We think that, much like the need for labor relations tranquility, the importance of student government sufficiently justifies any actual interference with plaintiffs' rights of association. Accordingly, we conclude that the compelled financial support of ASUC and its funded activities is constitutionally permissible.
II. Use of the Student Fees
A. Freedom of Speech
Plaintiffs further argue that the use of student activities fees to fund student groups with political or ideological viewpoints with which they disagree constitutes a form of compulsory political expression in In Machinists v. Street (1961) 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141, the plaintiffs in a union shop were required to join the union and pay dues. Part of the dues was used to finance election campaigns of various candidates whom plaintiffs opposed and to promote political and economic doctrines with which they disagreed. The court avoided the constitutional questions, however, by deciding that the federal Railway Labor Act authorizing a union shop contemplated only expenditures related to collective bargaining and that the use of compulsory union dues to support candidates for public office and to advance a political agenda violated that act. (367 U.S. at p. 768, 81 S.Ct. at p. 1799.)
More recently, in Abood v. Detroit Board of Education, supra, 431 U.S. 209, 97 S.Ct. 1782, the court reached the constitutional questions bypassed in Street. In Abood, the plaintiffs alleged that the union was engaged in various political and other ideological activities disapproved by plaintiffs and thus deprived them of their First Amendment rights of freedom of association. The court agreed that First Amendment rights are infringed when persons are compelled to make contributions to support an ideological cause they oppose (431 U.S. at pp. 233-235, 97 S.Ct. at pp. 1798-1800) but reiterated that contributions may be compelled limited to activities "germane to [the union's] duties as collective bargaining representative." ( Id., at p. 235, 97 S.Ct. at p. 1800; see also Railway Employes' Dept. v. Hanson, supra, 351 U.S. at p. 235, 76 S.Ct. at p. 719.) The court concluded that contributions cannot be compelled for "ideological activities unrelated to collective bargaining." (431 U.S. at p. 236, 97 S.Ct. at p. 1800.)
The courts have uniformly held that the use of mandatory student fees to support certain controversial student activities is constitutionally permissible. ( Good v. Associated Students of Univ. of Washington, supra, 542 P.2d 762 [student activities]; Arrington v. Taylor (M.D.N.C.1974) 380 F.Supp. 1348 [student newspaper]; Veed v. Schwartzkopf (D.Neb.1973) 353 F.Supp. 149, cert. den. 414 U.S. 1135, 94 S.Ct. 878, 38 L.Ed.2d 760 [student newspaper and student-run speakers' program]; Larson v. Board of Regents of University of Neb. (1973) 189 Neb. 688, 204 N.W.2d 568 [same].) In each case, the court regarded the activity as one which supplements classroom education by exposing the students to a variety of views on significant issues.
Although the analytical approach taken in each of the four cases decided before Abood is slightly different, all of them reached the same cognizable result. The relevant test under Abood is whether the mandatory fees are used for activities "related" or "germane" to the organization's purposes. In each of the precedent cases, the courts viewed the creation of a forum for the exchange of diverse ideas as part and parcel of the university's educational function.
Plaintiffs rely primarily on a single case: Galda v. Rutgers (3rd Cir.1985) 772 F.2d 1060, cert. den. 475 U.S. 1065, 106 S.Ct. 1375, 89 L.Ed.2d 602. In that case, former students of Rutgers University successfully challenged the mandatory imposition and use of a separate student fee to support the New Jersey Public Interest Research Group (PIRG), an independent corporation engaged in research, lobbying and advocacy for social change.
However, the court took great care to distinguish the case before it from those involving the funding of student activities by a mandatory activities fee. The court noted that unlike the student programs upheld in Veed and Arrington, " 'PIRG does not provide a forum for the expression of differing views' " (772 F.2d at p. 1064) but rather presents only one point of view, and the student fee supports only that group.
This crucial distinction places Galda in analytical symmetry with other cases upholding a mandatory student activity fee. The court observed that the creation of a forum for expression of diverse views may be a compelling justification for the slight infringement on First Amendment rights, "just as is the need for labor peace in the Kania v. Fordham (4th Cir.1983) 702 F.2d 475, is perhaps more apposite. In that case, a group of students at the University of North Carolina relied upon Abood to challenge the use of mandatory student fees to fund a student newspaper which advocated views repugnant to them. In concluding that no constitutional infringement was presented, the court first noted the special nature of a public university: "the campus of a public university, at least for its students, possesses many of the characteristics of a public forum. 'The college classroom with it surrounding environs is peculiarly "the marketplace of ideas." ' ... [Citation.]" (702 F.2d at p. 479, fn. 7.) And the court gave deference to the university's judgment that support of a student newspaper is related to the university's educational mission. (702 F.2d at pp. 479-480.)
Significantly, the court contrasted Abood with the evenhanded nature of the communications funded by the compulsory student fees stating that: "In Abood the plaintiffs alleged that they had no control over the Union's communications, and that these communications were one-sided presentations of the 'Union's viewpoint.' The mandatory fees in Abood, therefore, enhanced the power of one, and only one, ideological group to further its political goals. In contrast, [the student newspaper] increases the overall exchange of information, ideas, and opinions on the campus." ( Kania v. Fordham, supra, 702 F.2d at p. 480.)
The same analysis is applicable here. The Regents have obviously decided that the educational process extends beyond the classroom and includes extracurricular opportunities for students to be exposed to widely divergent opinions on various topics. The Regents have implicitly concluded that the use of student fees to finance student activities, including student groups that advocate positions on political and ideological matters, is necessary and related to the university's educational purposes. The broad powers granted the university for the governance of its affairs gives the Regents wide discretion to determine the best course for the university's educational mission. We must defer to that decision. ( San Francisco Labor Council v. Regents of University of California, supra, 26 Cal.3d at p. 788, 163 Cal.Rptr. 460, 608 P.2d 277.)
Indeed, the funding of the student groups promotes free expression by providing a forum for the exchange of ideas and the advocacy of divergent views. Any attempt by the university or the courts to inhibit the expression of ideas objectionable to some students would itself dangerously encroach upon First Amendment rights and would be entirely foreign to the firmly rooted concept of a university as a marketplace of ideas.
Moreover, the funding of student groups does not promote a single political point of view. On the contrary, the various funded groups represent diverse philosophical and political views, and funding is equally available to a group no matter what kind of ideological pennant it flies. And no evidence was presented that any group had been denied funding on that basis. The trial court expressly found that any group of (four) students expressing any particular viewpoint was free to register with the university and became eligible for funding.
On appeal plaintiffs have suggested that ASUC funding is less than evenhanded because most of the funded groups have "leftist" leanings. But plaintiffs presented no evidence at trial to support a claim of discriminatory treatment.
Plaintiffs' focus on ASUC lobbying organizations' engagement in political as well as educational activities misses the mark. The test is not whether the activity is political, but whether it is germane to the organization's purposes.
The Abood court expressly rejected the notion that attaching the adjective "political" to an activity is determinative. The court recognized that by its very nature a public employees' union is involved in political Similarly, the Supreme Court found no constitutional impediment to compulsory membership of lawyers in an integrated bar even though bar activities included legislative reform. (Lathrop v. Donohue, supra, 367 U.S. at pp. 833-834, 843, 81 S.Ct. at pp. 1832-1833, 1838.)
The Lathrop court did not decide whether mandatory bar dues may be used to support the bar's lobbying activities. We note that that question is pending before the California Supreme Court in Keller v. State Bar of California (1986) 181 Cal.App.3d 471, 226 Cal.Rptr. 448, review granted Aug. 26, 1986 (SF 25050) (argued Dec. 9, 1987). In other jurisdictions, the courts have applied Abood in holding that the bar may use funds for political and ideological activities if germane to the bar's purposes. (Gibson v. The Florida Bar (11th Cir.1986) 798 F.2d 1564; Petition of Chapman (1986) 128 N.H. 24, 509 A.2d 753; Romany v. Colegio de Abogados de P.R. (1st Cir.1984) 742 F.2d 32; Arrow v. Dow (D.N.M.1982) 544 F.Supp. 458; Falk v. State Bar of Michigan (1981) 411 Mich. 63, 305 N.W.2d 201.)
Here, the lobbying activities--confined to student and university issues--are obviously related to ASUC's function.
In conclusion, we reject plaintiffs' claims that the use of student fees to fund various student groups violates plaintiffs' rights of free speech.
B. Establishment of Religion
Plaintiffs next contend that the use of the mandatory activities fee to fund certain student religious groups violates the Establishment Clause. (U.S. Const., Amend. I; Cal. Const., art. I, § 4; art. XVI, § 5.) The contention finds no support in the record.
The trial court made a finding that the funded student activities groups with religious names are cultural in nature. That finding is amply supported by the record. Groups whose activities are essentially "religious," i.e., proselytizing converts by preaching church doctrine or restricting membership to persons sharing their particular faith, are not funded. Although some religious groups were registered groups in the sense of being authorized to set up informational tables at Sproul Plaza, the groups that actually received ASUC funds were cultural and not religious.
It is settled law that once the university makes its facilities available to some groups, it must make them available to all, even religious groups. (Widmar v. Vincent (1981) 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440.)
III. Other Objections
Plaintiffs also advance a cluster of subsidiary claims of alleged infirmities in the collection and expenditure of the student activity fees. Each of them need only be discussed briefly.
A. Express Authority
Relying on the principle that public funds may not be used to support political causes or activities unless the power to do so has been given in " 'clear and unmistakable language' " (Stanson v. Mott (1976) 17 Cal.3d 206, 213-220, 130 Cal.Rptr. 697, 551 P.2d 1; Mines v. Del Valle (1927) 201 Cal. 273, 287, 257 P. 530), plaintiffs assert that the use of student fees to fund ASUC and its activities has never been expressly authorized. The assertion is demonstrably groundless.
In 1933, the Regents adopted a policy authorizing the levy and collection of a mandatory student fee "whenever requested to do so by two-thirds vote of the student body concerned." In February 1955, a student vote was taken during registration: sixty-eight percent (68%) of the votes cast were in favor of a compulsory student activities fee. The Regents thereupon approved the collection of such fee and authorized use of part of it for ASUC activities. B. Fiscal Supervision
Plaintiffs' attempt below to challenge the validity of the 1955 vote tally was found barred under the doctrine of laches. That determination by the trial court is sustained by the record, and no injustice is shown. (Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 624, 166 Cal.Rptr. 826, 614 P.2d 258.)
Plaintiffs argue that the university has delegated too much authority to ASUC for allocation of its funds. When the collection of compulsory student body fees was authorized in 1933, they continue, the Regents intended to retain control over the management of the ASUC funds.
The record amply establishes, however, that the Regents retain fiscal supervision over the ASUC and its activities. Among the constitutional powers granted the Regents in administering the university is the power "to delegate to its committees or to the faculty of the university, or to others, such authority or functions as [the Regents] may deem wise...." (Cal. Const., art. IX, § 9, subd. (f).) The Regents have delegated to the chancellors of the several campuses the duty of administration of student government and student activities.
Under the university's written policies, the chancellors are empowered to "make audits of the finances of student governments, exercise control over expenditures of their funds when and to the extent necessary to maintain financial solvency of student governments, and where necessary may take action to ensure that any activity under control of student governments is operated in accordance with sound business practices consonant with University policies and procedures applicable to such practices."
Each spring preceding the next academic year, the ASUC budget is subject to review and approval of the chancellor's office. Each fiscal year, the ASUC undergoes an independent audit, and the auditor's report is sent to the university officials.
In addition, all ASUC Senate meetings are attended and monitored by university representatives. After each meeting, written reports are prepared and sent to the chancellor's delegate, the vice-chancellor of student services.
In sum, the Regents have not abdicated their plenary authority and continue to retain and exercise ultimate supervisory control over student government and student extracurricular activities.
C. Check or Warrant Disbursement of Funds
Plaintiffs also challenge the method of transferring funds (student activity fees) from the university to ASUC by check drawn upon the university's revolving account payable to the ASUC's separate bank account.
Student activities fee payments are routinely deposited in the UC Berkeley depository bank account and then immediately transferred to the university's systemwide account controlled by the treasurer of the university. Each quarter, after the total student enrollment is computed, a check drawn on the UC Berkeley revolving account is issued to ASUC in an amount reflecting $7 for each student payment. Funds are then transferred from the systemwide account to the revolving account to reimburse the account.
Relying on language contained in section 21 of the original organic act that "expenditures ... shall be subject to the warrants ... drawn upon the Treasurer of the University...." (Gen. Law No. 8868; Stats. 1867-1868, ch. 244, § 21, p. 257), plaintiffs claim a valid transfer of funds can only be by warrant drawn on the UC Treasurer. The claim is nonsensical.
The organic act was superseded by the 1879 constitutional enactment which expressly provided that "organization and government [of the university] shall be perpetually continued in the form and character prescribed by the organic Act creating the same...." (Cal. Const., art. IX, § 9.) In 1918, the Constitution was amended deleting the reference to the organic act and instead investing "full powers of organization and government ..." in the Regents. (Cal. Const., art. IX, § 9, subd. (a).)
Thus, no legal requirement exists that such funds must be transferred by warrant only.
D. Competitive Bidding
Plaintiffs' further argument that disbursement of the collected student activity fees (some $600,000 per year) violates Competitive bidding procedures apply where applicable by statute "for the letting of construction contracts, sales of real property, and purchasing of materials, goods, and services." (Cal. Const., art. IX, § 9, subd. (a).) The Legislature has provided that the Regents undertake competitive bidding for all contracts for goods and services exceeding $50,000 annually. (Pub. Contract Code, § 10507.) But the statute is obviously directed to contracts between the university and outside suppliers and does not apply to the internal administration of student government.
In any case, the ASUC is unique in being the only group that can create and operate a student government and is, accordingly, exempted from competitive bidding requirements under the "sole source" provisions of a companion statute. (Pub. Contract Code, § 10508.)
E. Support of Private Schools
The use of public funds to support private schools is constitutionally prohibited. "No public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools...." (Cal. Const., art. IX, § 8.)
In some obscure manner, plaintiffs contrive an argument that the use of the student activity fees violates this prohibition. First, the constitutional provision is a limitation on the power of the Legislature to appropriate public money. Furthermore, neither the ASUC nor any of its funded student activities is a "school" within the meaning of the provision.
For the first time on appeal, plaintiffs seek to challenge the $1.50 portion of the mandatory fee earmarked for Ethnic Studies. Failure to raise this objection below forecloses review, and we decline to consider it now. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1, 151 Cal.Rptr. 837, 588 P.2d 1261.)
F. Political Neutrality of the University
Under the provisions of the Constitution, "The university shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its regents and in the administration of its affairs...." (Cal. Const., art. IX, § 9, subd. (f).) Plaintiffs contend that the mandatory payment of the student activity fee as a condition of enrollment, coupled with the political positions espoused and political and religious groups funded by the ASUC, results in the students being subjected to a "sectarian, political or partisan test" for admission in violation of the university's political neutrality. Again, no merit is discerned.
Section 13 of the organic act provided an essentially similar proviso for the political neutrality of the university (Stats. 1867-1868, ch. 244, § 13, p. 254) subsequently incorporated in the 1879 version of article IX, section 9 of the Constitution.
As previously discussed, only payment of the fee is mandatory; participation in ASUC activities is not. Nor are students obligated to espouse or support any particular political or religious cause or viewpoint as a condition for enrollment. And in the final analysis, any positions taken by the ASUC or by student groups on matters of public concern are those of the student government or the student groups, and not those of the university which has faithfully adhered to the constitutional requirement of political and secular neutrality.
For each and all of said reasons, the judgment must be and is affirmed.
ELKINGTON and NEWSOM, JJ., concur.
Although university guidelines prohibit the use of university facilities "for organizing and maintaining personal political activities," university officials do not consider the use of Eshelman Hall offices as being within this prohibition.