702 F.2d 475 (4th Cir. 1983), 82-1391, Kania v. Fordham

Docket Nº:82-1391.
Citation:702 F.2d 475
Party Name:Richard J. KANIA, J.A. Kania, and Michael Morris on behalf of themselves and all others similarly situated, Appellants, v. Christopher FORDHAM, William C. Friday, Board of Trustees of UNC-CH and Board of Governors of UNC, Appellees.
Case Date:March 10, 1983
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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702 F.2d 475 (4th Cir. 1983)

Richard J. KANIA, J.A. Kania, and Michael Morris on behalf

of themselves and all others similarly situated, Appellants,

v.

Christopher FORDHAM, William C. Friday, Board of Trustees of

UNC-CH and Board of Governors of UNC, Appellees.

No. 82-1391.

United States Court of Appeals, Fourth Circuit

March 10, 1983

Argued Nov. 8, 1982.

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James M. Sullivan (Richard L. Voorhees, Gastonia, N.C., on brief), for appellants.

Elizabeth C. Bunting, Asst. Atty. Gen., Raleigh, N.C. (Rufus L. Edmisten, Atty. Gen. of N.C., Raleigh, N.C., on brief), for appellees.

Before MURNAGHAN, SPROUSE and ERVIN, Circuit Judges.

ERVIN, Circuit Judge:

This appeal requires us to consider once again the constitutionality of the mandatory student fees imposed by the University of North Carolina at Chapel Hill. Specifically, the appellants, Richard and Jay Kania and Michael Morris, brought this action against officials of the University asserting that the partial funding of the University's student newspaper by the student fees compels them to advocate views with which they disagree, in violation of the fourteenth amendment. 1 We rejected this identical contention, raised by different plaintiffs, in Arrington v. Taylor, 380 F.Supp. 1348 (M.D.N.C.1974), aff'd mem., 526 F.2d 587 (4th Cir.1975), cert. denied, 424 U.S. 913, 96 S.Ct. 1111, 47 L.Ed.2d 317 (1976). After the Supreme Court decided Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), the Arrington plaintiffs' attorney petitioned this court to recall its mandate and reconsider its decision in light of Abood. That motion was denied, and the present action commenced. After oral argument, the district court granted the University's motion for summary judgment and Kania appealed. After a careful reconsideration of the constitutional issues presented, we have concluded that Arrington was correctly decided and, therefore, we affirm the decision below. 2

I.

The Daily Tar Heel is the student newspaper in Chapel Hill. Chief responsibility for its content and editorial policy lies in an editor elected by the student body and subject to recall. Although the University controls the business operations of the paper, the parties agree that the University administration exercises no control whatsoever over The Daily Tar Heel 's contents or editorials. The paper is independent of the University's School of Journalism. The Daily Tar Heel functions, with one significant exception, in the same fashion as an ordinary newspaper. It reports local and national news, university activities including sports, presents clearly designated editorials and opinion columns, and prints letters to the editor, subject to the paper's discretion and editing.

The one major factor differentiating The Daily Tar Heel from most daily newspapers is its funding. The Daily Tar Heel is distributed on campus without charge. Its subscription income (from alumni and nonstudents) is therefore quite small, totalling in the 1972-73 academic year approximately $2,000. During that period the paper collected around $85,000 in advertising receipts. The rest of its operating budget, in 1972-73 about $54,000, is derived from the University's student activities fees. These fees are mandatory; a student who refuses to pay them will not be given grades, transcripts or a diploma. The fees

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fund a variety of student organizations and activities, including other publications and a visiting speakers program. The University's student constitution provides that a minimum of sixteen per cent of the fees must be appropriated for The Daily Tar Heel, provided that the amount does not exceed one-third of the previous year's budget. Undisputed evidence showed that without partial funding by the student fees The Daily Tar Heel could not survive in its present form. 3

Kania states that he disagrees with many of the editorial positions taken by The Daily Tar Heel and that opportunity to express this disagreement through letters to the editor is not freely available. The record, however, does not show any systematic discrimination against opposing viewpoints on the part of the newspaper's editors, and Kania admits that letters critical of the editors' opinions are often printed.

II.

The gravamen of Kania's complaint is that the University, 4 by requiring him to subsidize the publication of views with which he disagrees, is infringing his constitutional immunity from coerced expression. See West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (state may not compel affirmation of opinion or belief). The district court rejected this contention on the basis of its conclusion that any incidental restriction on the economic ability of individual students to advance their own views is outweighed by the state interest advanced by The Daily Tar Heel. This state interest, the district court found, in Arrington and in the present case, is the vital role played by The Daily Tar Heel in the University's educational mission. The newspaper exposes "the student body to various points of view on significant issues, and [allows] students to express themselves on those issues." 380 F.Supp. at 1362. The Daily Tar Heel thus subserves the state's legitimate interest in creating the richest possible educational environment at the University and, in its role as a forum for the expression of differing viewpoints, is a vital instrument of the University's "marketplace of ideas." See Healy v. James, 408 U.S. 169, 180, 92 S.Ct. 2338, 2345, 33 L.Ed.2d 266 (1972). By creating the financial arrangements necessary for the newspaper's existence, the University has enhanced the ability of its students as a whole to express themselves. In the absence of any showing that the University uses its financial support as a means of censoring The Daily Tar Heel's content, or that its editors systematically suppress opposing viewpoints, 5 the district

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court held that the subsidization of the newspaper by mandatory student fees is constitutionally permissible. Accord, Veed v. Schwartzkopf, 353 F.Supp. 149 (D.Neb.1973), aff'd mem., 478 F.2d 1407 (8th Cir.1973), cert. denied, 414 U.S. 1135, 94 S.Ct. 878, 38 L.Ed.2d 760 (1974).

III.

Kania maintains that even if Arrington reached a permissible result when first decided, it has been invalidated by subsequent Supreme Court elucidation of the constitutional doctrines of freedom of speech and association. He relies primarily on Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). 6 In that case, the Supreme Court unanimously held that a state cannot constitutionally compel public employees to contribute to union political activities to which they are opposed unless those activities are directly

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related to collective bargaining. Id. at 235-36, 97 S.Ct. at 1799-1800 (opinion of the Court); id. at 244, 97 S.Ct. at 1804 (Powell, J., concurring in the judgment). Abood involved a state labor law authorizing local governmental employees to organize unions. The statute permitted a union and a local governmental employer to agree to an "agency shop" arrangement requiring all represented employees either to belong to the union or pay a service fee equal in amount to union dues to the union. The Detroit Federation of Teachers and the Detroit Board of Education negotiated a labor contract including an agency shop clause, prompting several represented employees, some members of the union and some not, to file a class action in state court challenging the clause. The complaint alleged that the union carried on social activities for members only and engaged in various political, economic, and religious activities with which the plaintiffs disagreed, and that these activities were supported by the union dues/service fees plaintiffs were required to pay pursuant to the labor contract and the authorizing state statute. The state court of appeals held that the agency shop clause was not facially unconstitutional, and that the use of compulsory fees for political purposes could violate plaintiffs' rights but that plaintiffs had failed to demonstrate a right to any restitution because they had not informed the union of the causes to which they objected. 60 Mich.App. 92, 230 N.W.2d 322 (Mich.App.1975).

The United States Supreme Court vacated the Michigan court's judgment. The Court held that the use of mandatory union fees for the union's core functions--collective bargaining, contract administration and grievance adjustment--was constitutional. But the Court concluded that the union expenditure of funds obtained from plaintiffs by compulsion of law for political purposes "unrelated to its duties as exclusive bargaining representative," 431 U.S. at 234, 97 S.Ct. at 1799, amounted to government compulsion to support ideological causes as a condition of public employment. The Court reasoned that "[t]he fact that the appellants are compelled to make, rather than prohibited from making, contributions for political purposes works no less an infringement of their constitutional rights." Id. The Court declined to address the difficult issue of distinguishing legitimate collective bargaining activities from unrelated ideological ones, and suggested that if plaintiffs proved their allegations on remand, they might be entitled to an injunction against expenditures for political causes they oppose and restitution of funds exacted from them and spent on such causes.

Kania argues that Abood is directly analogous to this case and therefore controls its result. Just as the Abood plaintiffs' public employment was contingent on their financial support of the union, Kania is required to contribute financially to The Daily Tar Heel as a condition of enrollment at a public university. Since the newspaper is, in his opinion, a partisan advocate...

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