The Board of Regents is free to stop collecting fees for the Arizona Students Association even if the move was political, the attorney for the board contends.
In legal briefs filed in federal court, Joe Kanefield said the decision by the regents to require students to opt in to association membership was within the board's authority. He also told U.S. District Court Magistrate David Duncan that the association remains free to seek its $2-a-semester dues, just not to have the universities automatically collect it.
Kanefield did not address the allegation by the attorney for the student group that the board's action was in retaliation for the association's financial support last year for Proposition 204. That unsuccessful ballot measure, which would have imposed a permanent one-cent hike in the state sales tax for education and other causes, was opposed by Gov. Jan Brewer and most Republican legislators.
Several regents have said publicly that $120,000 contribution was at least a factor in causing them to revisit the policy where the fee is automatically collected. Then students who object have to file a written request for a refund.
But Kanefield said it does not matter if that support for Proposition 204 was, in fact, why the regents made the change. He said the only issue for Duncan to consider is whether that change violates the association's First Amendment rights.
In this case, Kanefield argued there is no constitutional right for the association to have the university be its bill collector. And he said that an otherwise legal action does not become unconstitutional solely because of an alleged improper legislative motive.
Attorney Stephen Montoya who represents the student group, acknowledged there is no right to have its fees collected by the regents.
"But once the Board of Regents does that, it cannot withdraw that for a retaliatory or a discriminatory reason,'' he said. And Montoya pointed to some U.S. Supreme Court cases which say government agencies cannot take an otherwise legal action for improper reasons.
The lawsuit is based on the claim that the policy change is illegal because it causes "a chilling effect'' on its political speech and it was done in retaliation for the association's support of the unpopular ballot measure. Montoya, who is seeking an injunction against the regents, said the change will cause "immediate, irreparable injury'' to the association by depriving it of its only source of income.
Eddie Walneck, a University of Arizona law student who serves on the association's board, said the key to that claim is human nature.
"When it's an opt-out model, most people continue to pay the fee,'' he said. "When it's an opt-in model, most people will not pay.''
And that, he said will force the association to spend more time collecting money and less time on its mission of advocating for students.
Kanefield gave Duncan an alternate legal argument the lawsuit should be thrown out.
He said the U.S. Constitution prohibits federal courts from hearing civil rights claims filed against the state or its agencies. And Kanefield said that includes the Board of Regents.
Montoya disagreed, saying the regents are different than, say, the state Department of Corrections because Arizona law spells out it has the right to sue or be sued.
Anyway, he said, it does not matter if Duncan accepts Kanefield's argument on that point. Montoya said that leaves him free to sue the individual regents.
No date has been set for a hearing.