Appeals court hands Arizona student group First Amendment victory in battle over withheld fee support

Student media outlets stripped of financial support because of unflattering content have some additional legal ammunition, thanks to a federal appeals court decision.

The Ninth Circuit U.S. Court of Appeals has overturned a district court’s ruling dismissing the claims of an Arizona student organization that was penalized with the loss of an automatic $1-per-student fee subsidy after opposing the governor’s position on a statewide referendum. 

The court’s ruling reinstates the First Amendment claims brought on behalf of Arizona Students Association, which advocates for the interests of students at the state’s three public universities. 

In a 3-0 ruling issued Wednesday, the California-based court held that the ASA’s complaint adequately set forth the essential ingredients of a First Amendment claim by alleging that the state Board of Regents adversely altered the association’s funding formula as punishment for political speech — specifically, campaigning for an education-funding ballot initiative that the governor opposed.

A U.S. district court dismissed ASA’s claims in 2013, finding that the loss of student activity fees wasn’t actionable under the First Amendment. Essentially, Judge John D. Sedwick accepted the state’s argument that allocating student fees is a purely discretionary, year-to-year decision and that the receipt of fees in a prior year in no way creates an entitlement or expectation of continued funding. 

Even worse, the district judge declined even to consider evidence of retaliatory bias expressed by Regents members: “The allegedly illicit motivation of some members of [the board] is not relevant to the First Amendment analysis in the circumstances here.”

Had that ruling held up, student media organizations facing the removal of university financial support would have had an essentially impossible burden to challenge even the most blatant cause-and-effect cases of retaliation.

But it didn’t. In an opinion by Judge Richard A. Paez, the court overruled Sedwick and sent the case back with instructions to allow the student association to re-plead its First Amendment claims: 

A state, division of the state, or state official may not retaliate against a person by depriving him of a valuable government benefit that that person previously enjoyed, conditioning receipt of a government benefit on a promise to limit speech, or refusing to grant a benefit on the basis of speech. Those limitations apply even if the aggrieved party has no independent or affirmative right to that government benefit.

That’s an enormously important point that, while logical, hasn’t always been obvious to college lawyers or judges. There’s a tendency to argue that, when something is a “privilege” rather than an “entitlement,” taking it away cannot be actionable under the First Amendment, because there’s “no right to receive student activity fees.”

But, as Judge Paez understood and explained, that’s the wrong way to think about a First Amendment retaliation claim. The ASA wasn’t claiming a “right to receive money” — they were claiming a right to be free from punishment for speech. 

This principle would be well-understood outside of the campus setting. Everyone knows that the governor cannot send the highway patrol door-to-door to confiscate the driver licenses of people who give speeches opposing the governor just because “driving is a privilege, not a right.” Government can’t take rights or privileges away as a means of punishing or deterring constitutionally protected speech — and advocating for the passage of a referendum is at the pinnacle of protected political speech.

The Ninth Circuit stated it unequivocally: “the collection and remittance of funds is a valuable government benefit, and a change in policy undertaken for retaliatory purposes that results in the deprivation of those funds implicates the First Amendment.”

The court’s ruling is resonating at least as far away as Kansas, where right now the University Daily Kansan newspaper is (just as the ASA was) defending against a motion to dismiss its First Amendment lawsuit challenging the retaliatory withdrawal of student activity fees. And just as in the Arizona Students Assocation case, the university is defending itself by insisting that a vote to allocate or not allocate fees is a matter of legislative discretion, its motivation beyond the authority of courts to review. 

That didn’t carry the day in Arizona, and it’s unlikely to fly in other jurisdictions, either.