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Goldwater Institute asks to intervene in ASA student fee case

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Clint Bolick (Photo by Ryan Cook/RJ Cook Photography)

The Goldwater Institute is going to ask a federal court to let it intervene in a lawsuit pitting a non-profit, student lobbying group against the Arizona Board of Regents.

The institute, a conservative policy advocacy group, set the wheels of the lawsuit in motion in September by questioning the legality of a $2 student fee that funds the Arizona Student Association, which contributed $126,806 in support of Proposition 204.

The student group, which advocates on student issues and lobbies at the Legislature, filed suit Tuesday in U.S.  District Court in Phoenix, alleging regents violated their First Amendment rights when they retaliated against the group for the political contribution by changing the fee collection policy in a way that generates less money for the group

“Remember, the Supreme Court is unanimous on one point,” said civil rights attorney Stephen Montoya, who represents the students association.  “Political speech deserves the highest level of First Amendment protection.”

But if the court allows the institute to intervene, the question will be whose rights were violated: the student group’s or the student body it serves?

The institute believes it was the student body.

The institute revealed its position in an Oct. 31 letter to the regents, stating that the student association took a stance that isn’t common to all students in Arizona’s three universities.

“Our biggest concern falls under the guarantee of freedom of speech,” wrote Goldwater attorney Carrie Ann Sitren. “That freedom also guarantees the freedom not to speak.”

Sitren based her argument on case law that says employee unions can use dues from mandatory membership only for activities common to the members and purpose of the union, and universities that collect fees for optional student clubs must make the funding available to all clubs equally, regardless of their viewpoint.

Clint Bolick, the institute’s lead attorney, said he couldn’t comment on the lawsuit because he wasn’t familiar with it yet, but he is beginning the process to intervene.

“There is a very strong chance that the ASA will have some uninvited guests in their lawsuit,” Bolick said.

Bolick said he will have to find students who disagreed with both the fee and the student association’s political stance on Proposition 204, a failed ballot measure that would have provided millions of dollars for higher education. He will also have to show their interest in the outcome of the lawsuit.

“I’m not sure the court will have the full story without them,” Bolick said.

Montoya will be able to object to the institute’s request to intervene, but he hasn’t made that decision yet.

“Will they increase paperwork, yes, will they impact the outcome, no, are they wasting everyone’s time, absolutely,” Montoya said.

Several regents questioned whether it was appropriate for the board to levy fees on students to pay for an organization that is independent from the university system. They began discussing the issue after some students complained  and after the institute published an investigative article on the student group.

The regents changed its policy for funding the student association Feb. 7 by no longer allowing the universities to automatically collect the $2 through the tuition process.

The tuition bills will contain a check box instead allowing students to contribute voluntarily, or opt in, to the group, which advocates on student issues and lobbies at the Legislature.

Previously, students could opt out of paying the fee, which generated roughly $540,000 a year for the group, but few rarely did because it was such a nominal amount and required a written submittal for a refund by the 21st day of class.

Montoya said that the new opt-in policy is going to drastically reduce the group’s revenue and in turn mute the group’s voice.

Montoya said the regents weren’t required to fund the group, but once it did, it couldn’t take away the funding to retaliate.

Student leaders from the three schools formed the student association in 1974. The organization was funded with a flat $35,000 taken from student fees from 1977 until 1997, when students at the three universities overwhelmingly passed a campus referendum establishing a $1 fee per student per semester. A 2008 campus referendum increased the fee to $2.

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