Student-Fee Dispute Revived by Ninth Circuit

     SAN FRANCISCO (CN) – The Ninth Circuit on Wednesday revived claims that the Arizona Board of Regents unlawfully retaliated against a nonprofit representing the state’s public university students by suspending and then modifying the group’s funding.
     “This is a big victory for free speech against encroachment by big government,” Stephen Montoya, who represented the Arizona Students’ Association, or ASA, said in an email.
     The association sued the board of regents in Federal Court in 2013, claiming the regents retaliated against students at Arizona’s three public universities for supporting Proposition 204, a ballot initiative that would increase funding for public education.
     According to the group’s complaint, the regents retaliated by voting to suspend its collection of a refundable ASA student fee, then voting to collect the fee only from students who “opted in.”
     The regents originally began collecting the fee at issue in 1998 when students voted to directly fund the ASA by paying a $1 non-mandatory fee at the beginning of each semester with their tuition payments. Students voted to increase the fee to $2 in 2008.
     The ASA claimed in its lawsuit that the board’s actions constituted retaliation for the association’s exercise of its First Amendment free speech rights by “chilling students’ political speech and depriving the ASA of its income.”
     A federal judge dismissed the case with prejudice, finding that the ASA’s claims were barred by sovereign immunity and that the association failed to allege a plausible claim for relief.
     After holding a hearing last November, the Ninth Circuit’s three-judge panel reversed the decision Wednesday, holding that the district court should have applied the Ex Parte Young doctrine to the ASA’s claims.
     Ex Parte Young is a 1908 U.S. Supreme Court ruling that allows lawsuits in federal courts against individuals acting in official capacities on behalf of states to proceed, despite the states’ sovereign immunity.
     “Although sovereign immunity bars money damages and other retrospective relief against a state or instrumentality of a state, it does not bar claims seeking prospective injunctive relief against state officials to remedy a state’s ongoing violation of federal law,” Judge Richard Paez said in the panel’s 22-page opinion.
     Had the ASA been given leave to amend its complaint, Paez said, they could have named individual members of the Arizona Board of Regents as defendants, rather than the board itself, and then sovereign immunity would not have prevented the association’s claims.
     Paez also said that the ASA brought a plausible claim for retaliation in violation of the First Amendment, since the association alleges it engaged in “multiple forms of constitutionally protected, core political speech” in its support of Proposition 204.
     The judge added that the dispute between the ASA and the regents is “more than a disagreement between similarly situated political rivals.”
     “The disparity in power between [the regents] and Arizona’s public university students is vast,” Paez wrote.
     Given the “inherent power asymmetry” between the groups and the “severe impact” of the regents’ actions on the ASA, the judge said “it is highly likely that the board’s alleged retaliation would chill and discourage a student or student organization of similar fortitude and conviction from exercising its free-speech rights.”
     The Ninth Circuit remanded the case to the district court for further proceedings.
     “It’s already been a long fight, but we look forward to presenting the facts establishing retaliation to a jury,” Montoya told Courthouse News.
     A representative for the board of regents did not immediately respond to an email requesting comment on Wednesday afternoon.

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