Smith v. Regents of University of California

Decision Date03 February 1993
Docket NumberBERKELEY-ALBANY,No. S006588,S006588
Citation844 P.2d 500,4 Cal.4th 843,16 Cal.Rptr.2d 181
CourtCalifornia Supreme Court
Parties, 844 P.2d 500, 61 USLW 2511, 80 Ed. Law Rep. 248 Averell SMITH et al., Plaintiffs and Appellants, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents. ASSOCIATED STUDENTS OF the UNIVERSITY OF CALIFORNIA, Plaintiff, v. The SMALL CLAIMS COURT FOR theJUDICIAL DISTRICT OF ALAMEDA COUNTY, Defendant; Brad SPARKS et al., Real Parties in Interest.

Arlo Hale Smith, San Francisco, Timothy A. DeWitt, Costa Mesa, Ronald A. Zumbrun, Anthony T. Caso and Richard M. Stephens, San Francisco, for plaintiffs and appellants and for real parties in interest.

Martin A. Schainbaum, San Francisco, Daniel J. Popeo, New Hartford, NY, and John C. Scully, San Francisco, as amici curiae on behalf of plaintiffs and appellants and real parties in interest.

James E. Holst, Christine Helwick, Fred Takemiya, Oakland, Himelstein, Savinar, Petrocelli & Curtice and Mark Himelstein, San Francisco, for defendants and respondents.

PANELLI, Justice.

Students at the Berkeley campus of the University of California are required to pay an activities fee. Part of the income from the fee is used to support student groups that pursue political and ideological causes. The student plaintiffs in this case object both to the imposition of the fee and to the manner in which it is used.

We reject plaintiffs' challenge to the imposition of the fee. The authority to levy a student activities fee is well within the broad powers of self-governance that the citizens of California have granted the University's Regents under the state Constitution.

The Regents' freedom to govern the University, however, is not the only freedom at stake in this case. Also at stake is the freedom of students not to be compelled and coerced to subsidize political and ideological causes. The dissenting opinion misleadingly asserts that this case is about the "dissemination of controversial ideas" (dis. opn. of Arabian, J., post, at p. 199 of 16 Cal.Rptr.2d, p. 518 of 844 P.2d) and wrongly accuses the majority of somehow restricting speech. In fact, the case has nothing to do with restrictions on speech. It goes without saying that all students are free to organize, to promote their ideas, and to seek by all legal means to persuade others that their views are correct. Moreover, the Regents may continue to fund student political activities through the fees of students who do not object. However, the constitutional guaranties of free speech and association do not permit the state to make speech a matter of compulsion and coercion. As the present system of funding student activities has that effect, it cannot be continued without affording dissenting students an appropriate remedy.

At the heart of the dissenting opinion is a frank proposal to sacrifice students' constitutional right not to be compelled to support political causes in order to teach them about the "fundamental republican virtues upon which this nation was founded." (Dis. opn. of Arabian, J., post, at p. 199 of 16 Cal.Rptr.2d, p. 518 of 844 P.2d.) The irony of that proposal speaks for itself.


Plaintiffs in this action were students at the University of California at Berkeley (University), or taxpayers, during 1981. Defendants are the Regents of the University of California (Regents), the Associated Students of the University of California (ASUC), and various officers of the University. The Regents govern the University pursuant to authority granted by the state Constitution. (Cal. Const., art. IX, § 9.) The ASUC is the organization authorized by the Regents to administer student government and student extracurricular affairs.

Since 1955, every student at the University has paid a mandatory, nonrefundable fee to support the ASUC each academic period as a condition of enrollment. For many years, payment of the fee entailed automatic membership in the ASUC. Shortly after this litigation began, however, the University changed its procedures to permit each student to accept or to decline ASUC membership. Payment of the fee remains mandatory.

The Regents transfer most of the income from the mandatory fee to the ASUC. In 1982, when this case was tried, the amount of the fee was $12.50 per student per quarter. The total amount collected from students and transferred by the Regents to the ASUC in the 1981-1982 academic year was $607,635. The ASUC's total expenditures for the same period were $1,016,569. The difference between the income from the mandatory fee and the ASUC's total expenditures is attributable to the ASUC's many business enterprises, which include the Student Union Building, a bookstore, and a ski lodge. In its operations the ASUC employs a full-time staff of over 85 persons and a part-time staff of over 250.

The ASUC uses its income, including the proceeds of the mandatory fee, to support a wide variety of activities in addition to student government. The ASUC is, for example, active in politics through the ASUC Senate, the governing body of 30 elected student representatives. Besides administering student affairs, the ASUC Senate debates and passes resolutions on local, state, and national issues. Issues on which the ASUC Senate has taken positions include, for example, gay and lesbian rights, the proposed Equal Rights Amendment, gun control, the reelection of a particular United States Representative, a municipal initiative to legalize marijuana, and the treatment of political prisoners in foreign countries.

The ASUC also subsidizes lobbying by two affiliated groups, the University of California Lobby and the ASUC Municipal Lobby. These groups seek to influence legislation pending before the state and municipal governments, respectively. Through the former, the ASUC has lobbied the state Legislature in favor of using registration fees to fund abortions, against rent discrimination, against budget cuts for the University, and in favor of mandatory student fees. Through the latter, the ASUC has lobbied the City of Berkeley on a nuclear freeze initiative, public transportation fares, city investment policy, zoning, and rent control, and has endorsed student candidates for municipal office.

In addition to its own activities, the ASUC also uses income from mandatory fees to subsidize approximately 150 student activity groups. Any four students at the University may form such a group and register it with the University. All registered groups may, but need not, request funding from the ASUC. Student groups pursue diverse interests, including academic subjects, culture, sports, games, and politics. To obtain funding, a student group submits a budget to the ASUC Finance Committee for review, which forwards its recommendation to the ASUC Senate for approval. Upon approval, a student group is eligible to receive reimbursement for actual expenses as incurred. The ASUC's rules permit reimbursement for 11 categories of expenses: "(1) personal services, (2) stationery and supplies, (3) telephone, (4) travel, (5) dues and subscriptions, (6) postage, (7) equipment rental, (8) advertising, (9) programs and printing, (10) facilities rental, and (11) other."

Most of the registered student groups are devoted to academic, cultural, or recreational pursuits. The Physics Students Society, the Spanish Club, the Cal Ski Club, and the Chess Club are random, typical examples. However, other groups pursue frankly political or ideological goals. At trial, plaintiffs objected to the ASUC's funding of 14 such groups: Amnesty International; Berkeley Students for Peace; Campus N.O.W. (National Organization for Women); Campus Abortion Rights Action League; Gay and Lesbian League; Progressive Student Organization; REAP (Radical Education and Action Project); Spartacus Youth League; Students Against Intervention in El Salvador; Students for Economic Democracy; UC Berkeley The procedural history of this action, insofar as it relates to the issues before us, is as follows: On April 16, 1979, plaintiffs Averell Smith, Marina Trepetin, Arlo Hale Smith, and Adlai Smith filed suit in the Superior Court of Alameda County against the Regents, the ASUC, and certain individual officers of the University. In their action, plaintiffs challenged the Regents' collection and use of the mandatory fee as violating the First Amendment to the UNITED STATES CONSTITUTION, ARTICLE I, SECTION 21, subdivision (a), 2 article I, section 3, 3 and article IX, section 9, subdivision (f), 4 of the California Constitution, and various other state constitutional and statutory provisions. Plaintiffs sought declaratory, injunctive, and all other appropriate relief. On May 23, 1980, five additional student plaintiffs (Brad Sparks, Jimmy Hom, Emily Taylor, Alexa Smith, and Thomas Kistler) filed individual actions in the Berkeley-Albany Small Claims Court seeking refunds of mandatory fees. All actions were subsequently consolidated by stipulation in the superior court.

[844 P.2d 505] Feminist Alliance and Women Organized Against Sexual Harassment; UC Sierra Club; Conservation and Natural Resources Organization; and Greenpeace Berkeley. Some of these organizations are affiliated with state, national, or international organizations.

On March 25, 1982, the superior court summarily adjudicated that the Regents' collection of the mandatory fee was legal. The court then tried, without a jury, plaintiffs' claims regarding the use of the fee. The court expressly found that "there ha[d] been isolated instances in the past wherein University and ASUC Rule[s] and Regulations ha[d] been violated in areas involving partisan political activities, ballot measure positions and alleged misuse of [the] University['s] name in connection with student activities...." Nevertheless, the court...

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