ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. C.A. No. 79-2811.
Adams, Sloviter, and Becker, Circuit Judges.
Plaintiffs in this action are three former students at Rutgers Camden College of Arts and Science (RUCCAS), a unit of Rutgers, the State University of New Jersey.*fn1 In September 1979, the plaintiffs filed suit under 42 U.S.C. § 1983, alleging that university officers and administrators had violated the students' first and fourteenth amendment rights by extracting from each student a refundable fee to support the New Jersey Public Interest Research Group (PIRG), an independent political/educational organization.*fn2 The district court held the PIRG funding arrangement constitutional as a matter of law because it contained a refund mechanism, and accordingly granted the defendants' motion for summary judgment. Galda v. Bloustein, 516 F. Supp. 1142 (D.N.J. 1981). We reverse and remand.
New Jersey PIRG is a non-profit, non-partisan corporation engaged in research, lobbying, and advocacy for social change.*fn3 Composed of approximately 21,000 student members at eight New Jersey colleges, including RUCCAS,*fn4 PIRG is controlled by a state-wide board of student representatives, which determines PIRG's programs and policies. Although PIRG has an educational function -- involving students "in real-life learning experiences [by] exploring the possibilities and difficulties of legal social change" -- all the parties to this litigation agree that PIRG also functions as a political, ideological organization.*fn5
Because of PIRG's independent status, the organization is not eligible for student activity funds. In March 1972, however, Rutgers adopted a policy for funding student-sponsored programs and organizations, such as PIRG, that otherwise would not qualify for university financial support. The policy provides that:
(1) Each organization is required to present its program and plans for concept review to the University Senate for recommendation to the President.
(2) If approved, the organization shall seek college referenda on the issue of student funding support for their program. At least fifty per cent of the student body of each division of the University shall be required to participate in such referenda and a majority of those voting must approve the project in order for implementation within that division. As an alternate, an affirmative vote of twenty-five per cent of the student body plus one shall be adequate to meet this test.
(3) The organization shall then be listed on the University term bill with payment of the indicated fee mandatory. A post-card asking for a refund shall be included along with the term bill which shall be sent by the individual student to the organization and which shall send the refund directly to the student.
(4) Each organization so funded shall be expected to defray the University cost of administration of the fee collection.
(5) Each organization shall be required every three years to meet the tests defined under items #1 and #2 above in order to continue to receive funds under this policy and procedure.
Appendix at A871-72. PIRG first qualified for funding under the university policy in 1972.
In practice, the PIRG funding system worked as follows: each semester, matriculating students were provided with a bill that included a charge of $2.50,*fn6 identified as the PIRG fee. The fee was described as mandatory, although apparently there were no sanctions for nonpayment. The bill was accompanied by a flyer describing PIRG; the back of the flyer contained a "Refund Request" form, which could be completed by the student and submitted to PIRG.*fn7 After receiving a refund request, PIRG verified that the individual was enrolled at Rutgers ...