Smith v. Regents of University of California

844 P.2d 500, 4 Cal. 4th 843, 16 Cal. Rptr. 2d 181

• Court: California Supreme Court
• Decided: February 3, 1993
• Docket: S006588
• Status: Published

Opinions

Opinion

PANELLI, J.

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. 869) and wrongly accus.es 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. 870.) The irony of that proposal speaks for itself.

I. Facts and Procedural History

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 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.

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,¹ article I, section 2, 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 Horn, 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.

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 entered judgment for defendants. The Court of Appeal affirmed. We granted review and deferred briefing pending the United States Supreme Court’s disposition of Keller v. State Bar of California (1990) 496 U.S. 1 [110 L.Ed.2d 1, 110 S.Ct. 2228], which involved a challenge to the State Bar of California’s use of mandatory dues to support political and ideological activities. We then remanded the case for reconsideration in light of the high court’s opinion. When the Court of Appeal once again affirmed, we granted review.

II. Discussion

A. Collection of the Mandatory Fee.

Plaintiffs Kistler and Taylor contend that the Regents do not have sufficient authority to collect a mandatory student activities fee. The contention lacks merit. The California Constitution expressly invests the Regents with “full powers of organization and government” over the University. (Cal. Const., art. IX, § 9, subd. (a).) This general grant of power, which has been described as giving the Regents “virtual autonomy in self-governance” (Regents of University of California v. City of Santa Monica (1978) 77 Cal.App.3d 130, 135 [143 Cal.Rptr. 276]), is plainly adequate to permit the Regents to levy a student activities fee in the absence of a constitutional or statutory prohibition.

Plaintiffs suggest that language with the effect of prohibiting the collection of a mandatory fee can be found in several authorities, namely, article IX, section 9, subdivision (f), of the state Constitution;⁵ section 13 of the Organic Act establishing the University (Stats. 1867-1868, ch. CCXLIV, § 13, pp. 253-254);⁶ and our decision in Stanson v. Mott (1976) 17 Cal.3d 206, 213-223 [130 Cal.Rptr. 697, 551 P.2d 1]. The constitutional and statutory provisions just cited declare, in essence, that the University shall be kept free of political and sectarian influence. Stanson v. Mott, supra, held that a state official acted improperly by spending public funds to campaign in favor of a ballot proposition. While these authorities might support an argument against some of the uses to which the fee has been put, they do not appear to affect the Regents’ power to collect a fee, assuming its use is proper.

We thus turn to plaintiffs’ claims regarding the use of the fee.

B. ASUC Support of Political and Ideological Groups.

Plaintiffs contend that the ASUC uses income from the mandatory fee in several ways that violate their rights to freedom of speech and association. We consider first the use of such fees to subsidize student groups devoted to political and ideological causes.

This case involves two important principles. (3) The first is that the government may not compel a person to contribute money to support political or ideological causes. (See, e.g., Keller v. State Bar of California, supra, 496 U.S. at pp. 9-10 [110 L.Ed.2d at pp. 11-12] (Keller); Abood v. Detroit Board of Education (1977) 431 U.S. 209, 234-235 [52 L.Ed.2d 261, 283-285, 97 S.Ct. 1782] (Abood).) Such contributions are a form of speech, and compelled speech offends the First Amendment,⁷ just as do restrictions on speech. (E.g., Keller, supra, 496 U.S. at pp. 9-10 [110 L.Ed.2d at pp. 11-12]; Abood, supra, 431 U.S. at pp. 234-235, & 235 fn. 31 [52 L.Ed.2d at pp. 283-285]; Miami Herald Publishing Co. v. Tornillo (1974) 418 U.S. 241, 247-258 [41 L.Ed.2d 730, 735-741, 94 S.Ct. 2831] [state may not compel a newspaper to print a political candidate’s reply to an editorial]; Torcaso v. Watkins (1961) 367 U.S. 488, 489-496 [6 L.Ed.2d 982, 983-988, 81 S.Ct. 1680] [state may not compel civil servants to affirm a belief in God]; Board of Education v. Barnette (1943) 319 U.S. 624, 630-642 [87 L.Ed. 1628, 1633-1640, 63 S.Ct. 1178, 147 A.L.R. 674] [state may not compel students to salute the flag].) Courts have often stressed this principle by repeating Thomas Jefferson’s view that “1 “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical." ’ ’’ (Brant, James Madison: The Nationalist (1948) p. 354, as quoted in Abood, supra, 431 U.S. at p. 235, fn. 31 [52 L.Ed.2d at p. 284]; see also Keller, supra, 431 U.S. at p. 10 [110 L.Ed.2d at pp. 11-12], and Chicago Teachers Union v. Hudson (1986) 475 U.S. 292, 305, fn. 15 [89 L.Ed.2d 232, 246, 106 S.Ct. 1066] (Hudson).)

The second principle is that the Regents, to be effective, must have considerable discretion to determine how best to carry out the University’s educational mission. Indeed, we have said that “the power of the Regents to operate, control, and administer the University is virtually exclusive.” (Regents of University of California v. Superior Court (1970) 3 Cal.3d 529, 540 [91 Cal.Rptr. 57, 476 P.2d 457], internal quotation marks omitted; see also San Francisco Labor Council v. Regents of University of California (1980) 26 Cal.3d 785, 788 [163 Cal.Rptr. 460, 608 P.2d 277].)

These principles conflict in the case before us. Plaintiffs, invoking their constitutional right not to be compelled to speak, argue that the use of mandatory fees to subsidize student political groups impermissibly burdens that right. The Regents, relying on their authority to define the University’s educational mission, acknowledge the burden on plaintiffs’ rights but argue that student political activity offers educational benefits that justify the burden.

Our analysis begins with a line of high court decisions that arose in the context of agency-shop agreements. Under these decisions, a state may compel employees who obtain the benefits of a union’s collective bargaining efforts to pay service fees to the union, even though such employees may choose not to join. (Abood, supra, 431 U.S. at pp. 217-223 [52 L.Ed.2d at pp. 272-277]; see also Hudson, supra, 475 U.S. at p. 301 [89 L.Ed.2d at pp. 243-244].) The court has explained this result as justified by the state’s interest in facilitating collective bargaining and preventing “free riders.” (Abood, supra, 431 U.S. p. 222 [52 L.Ed.2d at pp. 275-276]; see also id., at pp. 220-221 [52 L.Ed.2d at pp. 274-275].) However, the constitutional prohibition against compelled speech limits the uses to which a mandatory fee may be put: When the state does compel nonmembers to support a union financially, the nonmembers may prevent the union from using their contributions to fund the expression of political and ideological views unrelated to collective bargaining. (Id., at p. 234 [52 L.Ed.2d at pp. 283-284]; see also Hudson, supra, 475 U.S. at pp. 301-302 [89 L.Ed.2d at pp. 243-244].)

Because the use of a mandatory fee implicates freedom of association, strict scrutiny applies. As the high court reiterated in Hudson, supra, “[infringements on freedom of association ‘may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.’ ” (475 U.S. at p. 303, fn. 11 [89 L.Ed.2d at p. 245], quoting Roberts v. United States Jaycees (1984) 468 U.S. 609, 623 [82 L.Ed.2d 462, 104 S.Ct. 3244].) Thus, even when the government has a sufficiently compelling interest to require a person to subsidize an organization against his or her will, the resulting burden on freedom of association “requires that the procedure be carefully tailored to minimize the infringement.” (Hudson, supra, 415 U.S. at p. 303 [89 L.Ed.2d at p. 245].)

The principle that underlies the agency-shop decisions took sharper focus in Keller, supra, 496 U.S. 1, which concerned the mandatory payment of dues by lawyers to a bar association. The plaintiff lawyers objected to the bar’s use of dues to fund lobbying on issues of general social concern that had little, if anything, to do with the practice of law, such as gun control, abortion, and prayer in public schools. The bar defended its lobbying as a permissible exercise of its statutory authority to “aid in all matters pertaining to the advancement of the science of jurisprudence or to the improvement of the administration of justice.” (Id., at p. 15 [110 L.Ed..2d at p. 15], internal quotation marks omitted.)

The high court rejected the bar’s argument. In so doing, the court made clear that the use of mandatory contributions must be “germane,” not simply to any purpose the organization chooses to declare for itself, but “to the purpose for which compelled association was justified” as a matter of constitutional law. (Keller, supra, 496 U.S. at p. 13 [110 L.Ed.2d at p. 14], citing Abood, supra, 431 U.S. 209; see Abood, supra, at pp. 219, 235 [52 L.Ed.2d at pp. 273-274, 284-285].) In other words, the existence of a compelling interest sometimes permits the state to require a person to associate with an organization, or to support it financially, despite the general constitutional prohibition against laws with that effect. However, that one’s support may be compelled for some purposes does not mean that one must also subsidize every activity the organization in question chooses to undertake.

To illustrate, the state interests that justified compulsory bar membership in Keller were the specific goals of regulating the legal profession and improving the quality of legal services. (496 U.S. at p. 13 [110 L.Ed.2d at pp. 13-14].) As the high court explained, “[t]he State Bar may therefore constitutionally fund activities germane to those goals out of the mandatory dues of all members. It may not, however, in such manner fund activities of an ideological nature which fall outside of those areas of activity.” (Id., at p. 14 [110 L.Ed.2d at p. 14].) Thus, the high court rejected the State Bar’s argument that its lobbying on matters of general social interest, for example, “to advance a gun control or a nuclear weapons freeze initiative,” could be justified as germane to the Bar’s broader goal of improving the administration of justice. (Id., at pp. 14-16 [110 L.Ed.2d at pp.14-16].)

To summarize, Keller and Abood teach that the state may compel a person to support an organization if there is a sufficiently compelling reason to do so, and that the organization’s use of mandatory contributions must be germane to the purposes that justified the requirement of support. (Keller, supra, 496 U.S. at pp. 13-14 [110 L.Ed.2d at pp. 13-14]; Abood, supra, 431 U.S. at pp. 217-223, 232-237 [52 L.Ed.2d at pp. 272-277, 282-286].) The Regents argue that their use of mandatory fees to support student political groups satisfies these principles. They reason that the University’s purpose is to educate, and that the funding of such groups by the ASUC provides educational opportunities. Participation in such groups, according to the Regents, gives students a chance “to express their views on campus, to participate in campus administrative positions, to provide self-education in government processes, to develop social skills, to inform the student body about a variety of issues, and to ensure freedom of expression and association.”

While Keller and Abood hold that activities supported by mandatory contributions must be “germane” to the constitutionally relevant function, it does not follow, as the Regents argue, that everything “germane” is automatically permissible without the need for further inquiry. Keller and Abood involved much lighter burdens on speech and associational rights than those at issue here. A state bar’s regulatory function, as in Keller, and a labor union’s collective bargaining function, as in Abood, can be narrowly defined. Thus, to be compelled to pay for activities “germane” to those functions does not substantially burden an unwilling supporter’s speech and associational rights. While the unwilling supporter may receive unwanted professional or economic assistance, he or she remains free not to speak or to support others’ speech on political and ideological issues. In contrast, the University’s educational function is extremely broad; it potentially encompasses all of life. By recognizing that student political activity can be “germane” to education we run the risk of sanctioning a much greater burden on speech and associational rights than the high court necessarily contemplated when it used that term. (Keller, supra, 496 U.S. at pp. 13-14 [110 L.Ed.2d at pp. 14-16], citing Abood, supra, 431 U.S. 209; see also Abood, supra, at pp. 219, 235 [52 L.Ed.2d at pp. 273-274, 284-285].)

The solution to this problem is to set a rational limit on the use of mandatory fees. We can do this by recognizing what is obviously true, namely, that a group’s dedication to achieving its political or ideological goals, at some point, begins to outweigh any legitimate claim it may have to be educating students on the University’s behalf. To fund such a group through mandatory fees will usually constitute more of a burden on dissenting students’ speech and associational rights than is necessary to achieve any significant educational goal. The University can teach civics in other ways that involve a lesser burden on those rights, or no burden at all.

Indeed, this is the approach that courts have followed in the two cases that are fairly closely on point. (Carroll v. Blinken (2d Cir. 1992) 957 F.2d 991, cert. den. (1992) _ U.S. _ [121 L.Ed.2d 224, 113 S.Ct. 300]; Galda v. Rutgers (3d Cir. 1985) 772 F.2d 1060, cert. den. (1986) 475 U.S. 1065 [89 L.Ed.2d 602, 106 S.Ct. 1375].)⁸

In Carroll v. Blinken, supra, 957 F.2d 991 (Carroll), students at the State University of New York (SUNY) at Albany challenged the use of a portion of their mandatory student activity fee to fund the New York Public Interest Research Group, Inc. (NYPIRG). NYPIRG, a statewide organization with chapters on 19 SUNY campuses, described itself as a “ ‘nonpartisan research and advocacy organization directed by New York State college and university students.’ ” (Id., at pp. 993-994.) NYPIRG spent money both on and off campus. On campus, NYPIRG financed research projects by students and sponsored debates, symposiums, and professors’ fora on issues of public interest. Off campus, NYPIRG employed 60 full-time professional staff members to lobby the state government on issues of “ ‘consumer protection, government and corporate accountability and economic and social justice.’ ” (Id., at p. 994.)

The court in Carroll identified the limits of mandatory funding by balancing the educational benefits that NYPIRG offered to students against the infringement of the dissenting students’ right not to be compelled to subsidize NYPIRG’s political activities. The court frankly recognized the infringement. To quote the opinion, the dissenting students’ “right to be free from compelled speech suffers when NYPIRG uses student funds to raise issues on campus, organize the community and lobby the legislature in pursuit of ‘economic and social justice.’ ” (957 F.2d at p. 999.) The court also recognized that these intrusions must be “ ‘narrowly drawn to avoid unnecessary intrusion on freedom of expression’ ” and justified by the state. (Ibid., quoting Schad v. Mount Ephraim (1981) 452 U.S. 61, 69 fn. 7 [68 L.Ed.2d 671, 681, 101 S.Ct. 2176].) However, the court found that NYPIRG offered benefits on campus that were “substantial enough to justify the infringement . . . .” (Carroll, supra, 957 F.2d at p. 1001.) These benefits consisted of promoting extracurricular life, transmitting skills and civic duty, and stimulating energetic campus debate. (Ibid.)

The Carroll court reached a different conclusion regarding NYPIRG’s off-campus activities. Reasoning, as before, that “even incidental burdens on speech [must] be ‘narrowly drawn’ ” (957 F.2d at p. 1002, quoting Schad v. Mt. Ephraim, supra, 452 U.S. at p. 69, fn. 7 [68 L.Ed.2d at p. 681]; cf. Carroll, supra, at p. 999), the court concluded that the purported educational benefits “vanish when NYPIRG money is spent in the halls of the state legislature . . . .” (Id., at p. 1002.) The university’s interests, the court reasoned, “are still, after all, those of the university and its community, not that of an independent statewide organization.” (Ibid.)

There is language in Carroll that the Regents interpret as suggesting that the standard of review in cases such as this is more relaxed than the strict scrutiny standard that courts typically apply in cases involving burdens on speech and associational rights. However, we do not read the Second Circuit’s opinion that way. The court wrote, citing United States v. Albertini (1985) 472 U.S. 675 [86 L.Ed.2d 536, 105 S.Ct. 2897] (Albertini), that it would “look to see whether the [challenged] regulation ‘promotes a substantial government interest that would be achieved less effectively absent the regulation.’ ” (Carroll, supra, 957 F.2d at p. 999, quoting Albertini, supra, 472 U.S. at p. 689 [86 L.Ed.2d at p. 548].) In context, however, it is clear that the high court in Albertini did not use this language to announce a relaxed standard of review. In that case the Court upheld, as applied to a person protesting nuclear weapons, a law making it a criminal offense to reenter a military base after having been ordered not to do so by the commander. The high court did use the language quoted in Carroll, but the Court also emphasized that even “an incidental burden on speech [must be] no greater than is essential. . . .” (Albertini, supra, 472 U.S. at p. 689 [86 L.Ed.2d at p. 548].) Reading the quoted language in context, it is evident that the high court merely applied a version of the strict scrutiny test that courts traditionally apply in symbolic conduct cases.⁹

Whatever the import of the Carroll court’s reference to Albertini may be, what matters for our purposes is this: The Second Circuit expressly and repeatedly recognized that the defendants had to show that SUNY’s mandatory funding rule was “ ‘narrowly drawn to avoid unnecessary intrusion’ ” on constitutional rights. (Carroll, supra, 957 F.2d at pp. 999, 1002, quoting Schad v. Mt. Ephraim, supra, 452 U.S. at p. 69, fn. 7 [68 L.Ed.2d at p. 681].) This, in essence, is strict scrutiny, the same standard that the high court invoked in Hudson (supra, 475 U.S. at p. 303, fn. 11 [89 L.Ed.2d at p. 245]).

In Galda v. Rutgers, supra, 772 F.2d 1060 (Galda), the court applied the same test to a similar organization but reached a different conclusion. The student plaintiffs at Rutgers, the State University of New Jersey, objected to the use of a mandatory fee to support the New Jersey Public Interest Research Group (New Jersey PIRG). New Jersey PIRG, like the organization involved in Carroll, supra, 957 F.2d 991, was a statewide organization with student members on many campuses. New Jersey PIRG lobbied the federal and state governments on various matters of social interest, including the proposed Equal Rights Amendment, nuclear weapons, and the environment. New Jersey PIRG also provided internships for students, who received academic credit on campus for the work they performed. (772 F.2d at p. 1061.)

The court in Galda considered it important that New Jersey PIRG was a statewide organization rather than one consisting solely of Rutgers students. The court also attributed significance to the particular funding mechanism employed: Students voted periodically to support New Jersey PIRG through a separate, mandatory fee rather than through the general student activities fund. For these reasons, the court felt that it was unnecessary to “address the problem presented by a state university’s allocation of a mandatory nonrefundable student activity fee” or the question whether “an organization with PIRG’s philosophic outlook may be funded though the general activities fund as are other campus organizations representing diverse views.” (772 F.2d at p. 1064.)

The particular facts of the Galda case undoubtedly determined its outcome, but there is nothing in the Third Circuit’s approach that prevents its application to on-campus student groups. In essence, the court inquired whether mandatory funding of New Jersey PIRG was necessary to achieve the university’s educational goals and weighed the purported educational benefits against the burden on constitutional rights to determine whether the burden was justified. (Galda, supra, 772 F.2d at pp. 1065-1068.) This, of course, is the same approach that the Second Circuit took in Carroll (supra, 957 F.2d at pp. 1001-1002).

Following this approach, the Galda court accepted the university’s argument that participation in New Jersey PIRG offered educational benefits to students. However, the court determined that the educational benefits offered by New Jersey PIRG were not sufficient to justify the infringement of dissenting students’ speech and associational rights. The court reasoned as follows: “Although the training PIRG members may receive is considerable, there can be no doubt that it is secondary to PIRG’s stated objectives of a frankly ideological bent. To that extent the educational benefits are only ‘incidental’—arising from or accompanying the principal objectives—and subordinate to the group’s function of promoting its political and ideological aims.” (772 F.2d at p. 1065.)

While there is language in Galda suggesting that the mandatory funding of political groups might be acceptable if accomplished through a content-neutral process in which all groups on campus were free to compete (772 F.2d at p. 1067), the opinion did not purport to announce such a holding. Moreover, other language in the opinion cogently demonstrates why a content-neutral funding process, standing alone, cannot sufficiently protect the rights of students who do not wish to subsidize other students’ political activity.¹⁰ To quote the Galda opinion, “even if the opponents succeed in achieving mandatory contributions for their own organization, they are not relieved from the obligation to pay a fee to a group with which they disagree. For example, if the university compelled a student to make separate contributions to both the Democratic and Republican National Committees, the evil is not undone; it is compounded. Adherents to each party would be forced to pay a fee to the other political group, a clearly unconstitutional exaction.” (Ibid.) The Second Circuit made the same point in Carroll, supra: “The fact that appellants’ student activity fee will also compel them to speak through a number of other campus groups in addition to NYPIRG in no way heals the constitutional infirmity; it simply means that students must fund more than one unwanted view.” (957 F.2d at p. 998, citing Galda, supra, 772 F.2d at p. 1067.)

The principles that we derive from Carroll and Galda, as well as Keller and Abood, are these: A university may, in general, support student groups through mandatory contributions because that use of funds can be germane to the university’s educational mission. (Carroll, supra, 957 F.2d at pp. 1001-1002; cf. Keller, supra, 496 U.S. at pp. 13-14 [110 L.Ed.2d at pp. 13-14], and Abood, supra, 431 U.S. at pp. 232-237 [52 L.Ed.2d at pp. 282-286].) At some point, however, the educational benefits that a group offers become incidental to the group’s primary function of advancing its own political and ideological interests. (Galda, supra, 772 F.2d at pp. 1065, 1068; cf. Carroll, supra, 957 F.2d at p. 1002.) To fund such a group may still provide some educational benefits, but the incidental benefit to education will not usually justify the burden on the dissenting students’ constitutional rights. Phrased in terms of the tests that courts have applied, a regulation that permits the mandatory funding of such groups is not “ ‘narrowly drawn to avoid unnecessary intrusion on freedom of expression’ ” (Carroll, supra, 957 F.2d at p. 999, quoting Schad v. Mount Ephraim, supra, 452 U.S. at p. 69, fn. 7 [68 L.Ed.2d at p. 681]; see also Carroll, supra, 957 F.2d at p. 1002), and it “unnecessarily restricts] constitutionally protected liberty, [when] there is open a less drastic way of satisfying its legitimate interest” (Galda v. Rutgers, supra, 772 F.2d at p. 1066).

One can reach the same result by applying the Carroll court’s alternative formulation of the test. When mandatory funding is being used to create an incidental benefit to education at the cost of a significant burden on constitutional rights, it cannot usually be said that the state is “ ‘promoting] a substantial government interest that would be achieved less effectively absent the regulation.’ ” (Carroll, supra, 957 F.2d at p. 999, quoting Albertini, supra, 472 U.S. at p. 689 [86 L.Ed.2d at p. 548].)

We find no reason to doubt that the burden on dissenting students’ speech and associational rights in this case is real and substantial. Students are, in fact, forced to support causes they strongly oppose. For example, students who favor abortion rights must pay to support the political activities of Berkeley Right to Life, a group opposed to abortion, and students opposed to abortion must subsidize groups such as Campus N.O.W. and Campus Abortion Rights Action League, which favor abortion rights. Another possible consequence of the current funding system was suggested at oral argument. Counsel for the ASUC acknowledged that a group which espoused the supremacy of a particular race would be eligible to receive mandatory fees so long as it permitted all students to join without discrimination. A sufficient remedy for the “incidental infringement” of the rights of a student of a different race, counsel suggested, would be to “join that group and engage in vigorous debate within that group as to whether their ideas are acceptable or not.” One might ask, rhetorically, whether being compelled to subsidize an organization whose goals one abhors is less of a burden than being compelled to display the state motto on a license plate (Wooley v. Maynard (1977) 430 U.S. 705, 714-717 [51 L.Ed.2d 752, 762-764, 97 S.Ct. 1428] [“Live Free or Die”]), a burden that the high court has found to be impermissible.

The ASUC does purport to have a standard for identifying those groups whose political activities are of such a nature as to disqualify them from receiving support from mandatory fees. Specifically, an ASUC rule requires that funds not be used for “partisan political activities or any ballot measure . . . .” (ASUC, Policy & Procedure Manual, Guidelines for Funding Student Organizations, pp. 9-10.) However, the rule does not satisfy constitutional requirements, either on its face or as applied. While the rule on its face bars funding only for “partisan political” activities, much broader concerns are at stake. The court’s opinion in Abood, supra, 431 U.S. 209, makes this clear: “It is no doubt true that a central purpose of the First Amendment ‘ “was to protect the free discussion of governmental affairs.” ’ [Citations.] But our cases have never suggested that expression about philosophical, social, artistic, economic, literary, or ethical matters—to take a nonexhaustive list of labels—is not entitled to full First Amendment protection. Union members in both the public and private sectors may find that a variety of union activities conflict with their beliefs. [Citations.] Nothing in the First Amendment or our cases discussing its meaning makes the question whether the adjective ‘political’ can properly be attached to those beliefs the critical constitutional inquiry.” (Id., at pp. 231-232 [52 L.Ed.2d at pp. 281-282], fn. omitted.)

Moreover, as applied by the ASUC, the “partisan political” rule actually permits the use of mandatory fees to fund a great deal of activity that is indisputably political and even “partisan” by any reasonable definition.¹¹ Indeed, the ASUC’s executive vice-president testified at trial that the rule has been interpreted to bar funding only for the campus Young Republicans and Young Democrats. In contrast, the rule has been interpreted not to bar funding for “a group that supports the nuclear freeze initiative,” “organizations that support the [proposed Equal Rights Amendment],” “organizations that hold demonstrations against the policies of the Reagan administration,” “organizations that oppose U.S. aid to the government of El Salvador,” “[organizations that oppose construction of the peripheral canal,” “[organizations that support gay rights legislation,” “a group that advocates replacement of our current form of government with a revolutionary socialist regime,” and “a group that supports abolition of the death penalty.” Confronted with these funding decisions on cross-examination, the ASUC witness conceded that she could not articulate the criteria by which the ASUC determined whether a group was “partisan” or “nonpartisan.”

If these examples left any doubt that the ASUC’s “partisan political” rule lacked any meaningful content, to be convinced of the point one would only need to consider the ASUC’s decision to fund the Young Spartacus League. This group, according to the record, supported the former Soviet Union’s invasion of Afghanistan, opposed the Solidarity movement in Poland, and, to quote its successful application for ASUC funding, “seeks to build a revolutionary socialist movement which can intervene in all social struggles armed with a working class program based on the politics of Marx, Lenin and Trotsky, as part of a disciplined revolutionary movement.” We do not in any way mean to suggest that this group, or any group, should not be permitted to register with the University and attempt by all legitimate means to persuade other students of the correctness of its views. However, to fond the Young Spartacus League as “nonpartisan,” while denying funding to the Young Republicans and Young Democrats as “partisan,” borders on the absurd.

We need not determine in the first instance whether each of the groups that plaintiffs specifically challenged at trial do or do not offer educational benefits that justify the infringement of plaintiffs’ speech and associational rights. However, if the Regents decide to implement educational programs that entail burdens on constitutional rights they must ensure that the burdens are justified, and it is clear that they have made no serious effort to do so. At oral argument, counsel for the Regents argued that such a determination is virtually impossible to make because the terms “political” and “ideological” are vague. However, the high court has required labor unions and a state bar association to identify “political” and “ideological” activities that cannot properly be charged to mandatory contributors. (Keller, supra, 496 U.S. at p. 15 [110 L.Ed.2d at p. 15]; Abood, supra, 431 U.S. at pp. 235-236 [52 L.Ed.2d at pp. 284-285].) As already discussed, the Regents have more discretion than the defendants in Keller and Abood in determining how to use mandatory fees because some student political activity is germane to the University’s educational mission. However, when a group’s educational function has become merely incidental to its political and ideological activities, then the infringement of dissenting students’ constitutional rights can no longer be justified by the purported educational benefit. (Galda, supra, 772 F.2d at pp. 1065, 1067-1068.)

So long as the present system of funding student activity groups continues, the only practical way to protect the rights of dissenting students is to implement the procedures outlined in Hudson, supra, 475 U.S. 292, 301-310 [89 L.Ed.2d at pp. 243-249], and Keller, supra, 496 U.S. 1, 16-17 [110 L.Ed.2d at pp. 15-16]. These procedures will require the Regents to identify any groups that are ineligible for mandatory funding under the constitutional standards set out above and offer students the option of deducting a corresponding amount from the mandatory fee. The State Bar of California adopted a similar procedure to comply with the high court’s decision in Keller, supra. Students who disagree with the Regents’ calculation of the deduction will be entitled to the procedural safeguards articulated in Keller: “an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decision-maker, and an escrow for the amounts reasonably in dispute while such challenges are pending.” (496 U.S. at p. 16 [110 L.Ed.2d at p. 16], internal quotation marks omitted.)

While these procedures will obviously entail some administrative burden, they will not necessarily require the Regents to review each of the University’s 150 registered student groups. Of these groups, the vast majority appear to have no discernible political or ideological interests; plaintiffs have challenged only 14. Moreover, as the high court has observed, even if such a procedure did “ ‘result in some . . . administrative burden . . . and perhaps prove at times to be somewhat inconvenient, such additional burden or inconvenience is hardly sufficient to justify contravention of the constitutional mandate. It is noteworthy that unions representing government employees have developed, and have operated successfully within the parameters of Abood procedures for over a decade.’ ” (Keller, supra, 496 U.S. at pp. 16-17 [110 L.Ed.2d at p. 16], quoting Keller v. State Bar (1989) 47 Cal.3d 1152, 1192 [255 Cal.Rptr. 542, 767 P.2d 1020] (conc, and dis. opn. of Kaufman, J.).)

Of course, the Regents must provide a refund only to those students who object to the use of their fees for political and ideological activities. There is no legal barrier to funding such activities with the fees of students who do not object. Moreover, the refund will be necessary only so long as the Regents continue to subsidize political and ideological activities through mandatory fees. The Regents are free to adopt another system of funding student activities, such as a voluntary system, that avoids the constitutional defects identified in this opinion.

C. ASUC-funded Lobbying.

Plaintiffs have also challenged the ASUC’s use of mandatory fees to lobby the state and municipal governments. Issues on which the ASUC has lobbied in the past include a nuclear freeze initiative, public transportation fares, city investment policy, zoning, rent control, rent discrimination, the use of registration fees to fund abortions, budget cuts for the University, and mandatory student fees.

The Court of Appeal disposed of plaintiffs’ claim summarily, observing that “the record supports the trial court’s finding that lobbying activities are confined to student and university issues.” Applying the test of germaneness articulated in Keller (supra, 496 U.S. at pp. 13-14 [110 L.Ed.2d at pp. 13-14]) and Abood (supra, 431 U.S. at pp. 217-223, 232-237 [52 L.Ed.2d at pp. 272-277, 282-286]), the court concluded that “no constitutional infringement occurred” because the ASUC’s lobbying activities “are related to the university’s function.”

The Court of Appeal’s reasoning entails two serious flaws. First, the trial court did not make the finding on which the Court of Appeal purported to rely. Rather than finding that the ASUC’s lobbying efforts had been confined to student- and university-related issues, the trial court in its statement of decision merely cited a University policy permitting the ASUC to lobby on such issues. In fact, there is undisputed evidence in the record that the ASUC has lobbied on issues that have no meaningful relationship to students as students or to the University, such as a nuclear freeze initiative and municipal investment policy.

Second, even if the ASUC’s lobbying had been limited to student- and university-related issues, it does not follow that there is no constitutional problem. The Court of Appeal’s reasoning assumes that one of the ASUC’s purposes is to represent student interests before the municipal and state governments and that lobbying on university-related issues is germane to that purpose under Keller (supra, 496 U.S. 1) and Abood (supra, 431 U.S. at 209.) However, plaintiffs’ meritorious objections to this reasoning find no answer in the Court of Appeal’s opinion.

Plaintiffs object, initially, that the analogy to collective bargaining is not truly apposite in this context. While the Regents have authorized the ASUC to communicate with government officials on public issues (University of Cal., Policies Applying to Campus Activities, Organizations, and Students, pt. A (rev. July 21,1978) § 63.00, at p. 18),¹² the Regents have not purported to authorize the ASUC to negotiate with the government, or any other body, on students’ behalf. Indeed, the relevant statement of policy negates any such implication by cautioning that the ASUC’s permission to lobby “does not affect the right of any student, as an individual, to petition government officials or bodies.” (Ibid.) Furthermore, it is not clear that the state has any reason at all, let alone a compelling reason, to appoint a “bargaining representative” for students in their dealings with the government.

Plaintiffs also argue that, even if the Regents had appointed the ASUC to represent student interests before government bodies, it does not follow that the permissible scope of lobbying would include all student- and university-related matters. A public employees’ union, in comparison, may not use mandatory contributions to support lobbying on all union-related matters. This was the holding of Lehnert v. Ferris Faculty Assn. (1991) 500 U.S. _114 L.Ed.2d 572, 111 S.Ct. 1950] (Lehnert). In that case, the high court held that “the State constitutionally may not compel its employees to subsidize legislative lobbying or other political union activities outside the limited context of contract ratification or implementation.” (Id., at p.__[114 L.Ed.2d at p. 591], italics added.) Thus, while the plaintiffs in Lehnert, who were state college professors, could be compelled to subsidize a union’s collective bargaining efforts, they could not be compelled to subsidize lobbying on matters other than collective bargaining, even matters as closely related to the union’s interests as taxes for the support of public education. (Id., at p. _ [114 L.Ed.2d at p. 594].)

The high court’s reasoning in Lehnert bears repeating because it appears to apply with equal force to the ASUC’s lobbying efforts: “[Allowing the use of dissenters’ assessments for political activities outside the scope of the collective-bargaining context would present ‘additional interference with the First Amendment interests of objecting employees.’ [Citation.] There is no question as to the expressive and ideological content of these activities. Further, unlike discussion by negotiators regarding the terms and conditions of employment, lobbying and electoral speech is likely to concern topics about which individuals hold strong personal views. Although First Amendment protection is in no way limited to controversial topics or emotionally charged issues [citations], the extent of one’s disagreement with the subject of compulsory speech is relevant to the degree of impingement upon free expression that compulsion will effect.

“The burden upon freedom of expression is particularly great where, as here, the compelled speech is in a public context. By utilizing petitioners’ funds for political lobbying and to garner the support of the public for its endeavors, the union would use each dissenter as ‘an instrument for fostering public adherence to an ideological point of view he finds unacceptable.’ [Citation.] The First Amendment protects the individual’s right of participation in these spheres from precisely this type of invasion. Where the subject of compelled speech is the discussion of governmental affairs, which is at the core of our First Amendment freedoms [citations], the burden upon dissenters’ rights extends far beyond the acceptance of the agency shop and is constitutionally impermissible.” (Lehnert, supra, 500 U.S. at p._[114 L.Ed.2d at p. 591].)

Thus, under Lehnert, even if the state has a sufficiently compelling interest to require unwilling persons to support an organization financially, the state may not compel support for lobbying efforts except on those matters that are strictly necessary to further the interest that justified the requirement of support. Applying this principle to the case before us compels us to reverse the judgment. Even if the Regents had appointed the ASUC to negotiate with governmental bodies on students’ behalf, and even if the state had a compelling reason to do so, under Lehnert the state still could not force unwilling students to subsidize lobbying beyond the narrow subject matter that justified the requirement of support. However, the Regents have not claimed any interest in requiring students to support the ASUC’s lobbying except the interest in providing an educational opportunity. In view of the “core” political freedoms that are at stake (see Lehnert, supra, 500 U.S. at p.__[114 L.Ed.2d at p. 591]), the educational benefit to a few student lobbyists cannot justify the burden on all students’ free speech and associational rights.

For these reasons, we hold that the Regents may not collect, from any student who objects, that portion of the mandatory fee that represents the cost of lobbying governmental bodies. Students who disagree with the Regents’ calculation of the corresponding deduction will be entitled to the procedural safeguards set out above. (See Hudson, supra, 475 U.S. 292, 301-310 [89 L.Ed.2d at pp. 243-249]; Keller, supra, 496 U.S. 1, 16-17 [110 L.Ed.22d at pp. 15-16].)

D. The ASUC Senate’s Political Activities.

For many years, the ASUC Senate has debated, adopted, and publicized resolutions on current political issues. Issues that have received the ASUC Senate’s attention include, for example, gay and lesbian rights, the proposed Equal Rights Amendment, gun control, draft registration, boycotts of businesses involved in labor disputes, the reelection of a United States Representative, a municipal initiative to legalize marijuana, and the treatment of political prisoners in foreign countries. The ASUC Senate also supports voter registration, draft counselling, and renters’ assistance programs. Plaintiffs introduced evidence at trial to show that these programs had occasionally become channels for political activity.

Plaintiffs contend that the state may not compel them to finance these political activities through mandatory fees. In opposition, the Regents assert that no income from mandatory contributions has been used to support such activities. The trial court did not specifically address this issue in its statement of decision. The Court of Appeal upheld the ASUC Senate’s political activities, but it did not rely on the Regents’ theory that no mandatory fees have been used to subsidize them. Instead, avoiding the unresolved factual issue, the court purported to uphold the ASUC Senate’s political activities as a matter of law. The court reasoned that such activities “contribute[] to the educational mission of the university” and that, if plaintiffs did not approve of positions taken by the ASUC Senate, “there is nothing to prevent plaintiffs from seeking senate office and making their own voices heard in the senate debates.”

The Court of Appeal’s resolution of this issue cannot withstand scrutiny. To be sure, the ASUC Senate’s practice of taking and publicizing positions on political issues may have educational value for those few students who are involved. However, as already discussed, if mandatory fees are used for this purpose there is a burden on dissenting students’ speech and associational rights. The Court of Appeal’s analysis is incomplete because it made no effort to determine whether the purported educational benefits justify the burden. Indeed, the court betrayed a certain indifference to plaintiffs’ constitutional claims in suggesting that the remedy for compelled speech lies in more compelled speech, i.e., suggesting that plaintiffs “seek[] senate office and mak[e] their own voices heard in the senate debates.”

Of course, there would be no need to address plaintiffs’ claim if it were true, as the Regents assert, that no income from mandatory fees has been used to support the ASUC Senate’s political activities. However, the Regents’ position seems to contradict the trial court’s finding that mandatory fees were used for “operation expenditures for the ASUC Senate.” The Regents’ position also seems to contradict the ASUC’s response to plaintiffs’ interrogatories. In their interrogatories, plaintiffs asked the ASUC to “[s]tate what steps ASUC has taken to publicize resolutions adopted by the ASUC Senate.” The ASUC answered that it had “placed ads in the Daily Cal [a student newspaper]; distributed posters, leaflets and flyers; published ASUC information books; sent out press releases to major media; sponsored on-campus discussion groups, workshops and rallies; [and] placed notices on campus bulletin boards and kiosks . . . .” These forms of publicity usually entail costs, if only for paper and ink.

The Regents’ assertion that mandatory fees have not been used to subsidize the ASUC’s political activities could also mean that the ASUC segregates mandatory fees from other sources of income and uses the former only for nonpolitical purposes. The earmarking of funds, however, would not necessarily eliminate the constitutional problem. In Abood (supra, 431 U.S. 209, 237, fn. 35 [52 L.Ed.2d p. 285]), the high court rejected earmarking as a remedy for constitutional violations caused by the use of mandatory fees for political purposes. Because earmarking leaves the same total amount of funds at the organization’s disposal and permits the organization to spend the same amount on political activities, earmarking “ ‘is of bookkeeping significance only rather than a matter of real substance.’ ” (Ibid., quoting Retail Clerks v. Schermerhorn (1963) 373 U.S. 746, 753 [10 L.Ed.2d 678, 683, 83 S.Ct. 1461 ].) For these reasons, the Court has held in the agency-shop context that “it is plainly not an adequate remedy to limit the use of the actual dollars collected from dissenting employees to collective-bargaining [i.e., non-political and non-ideological] purposes . . . (Abood, supra, 431 U.S. at p. 237, fn. 35 [52 L.Ed.2d at p. 285].)

In view of the foregoing discussion, it is evident that the lower courts have not yet adequately addressed the factual and legal issues raised by the ASUC Senate’s own political activities. If further evidentiary proceedings show that mandatory fees have been spent on political activities by the ASUC Senate, then the Regents shall have the burden of demonstrating that the resulting burden on dissenting students’ speech and associational rights is germane to, and justified by, such activities’ educational value in accordance with the principles discussed above. If the Regents do not satisfy that burden, then plaintiffs will be entitled to relief under the procedures set out in Keller, supra, 496 U.S. 1, 16-17 [110 L.Ed.2d 1 at pp. 15-16], and Hudson, supra, 475 U.S. 292, 301-310 [89 L.Ed.2d 232 at pp. 243-249], We shall remand these issues for further proceedings in accordance with the views expressed herein.

In view of our determination that plaintiffs are entitled to relief on their claims regarding student groups and ASUC lobbying, and that further proceedings must take place on plaintiffs’ claims regarding the ASUC Senate’s political activities, there is no need at this stage of the proceeding to address plaintiffs’ alternative claims to the same relief under article IX, section 9 of the state Constitution, section 13 of the Organic Act (Stats. 1867-1868, ch. CCXLIV, § 13, p. 254)), Stanson v. Mott, supra, 17 Cal.3d 206, and the federal Constitution’s establishment clause (U.S. Const., Amend. I).

III. Disposition

The judgment of the Court of Appeal is affirmed insofar as it holds that the Regents of the University have power to impose and collect a mandatory student activities fee. In all other respects the judgment is reversed. The case is remanded to the Court of Appeal, which shall direct the superior court to conduct further proceedings, and to grant relief, in accordance with this opinion.

Lucas, C. J., Kennard, J., Baxter, J., and George, J., concurred.

1 “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

2 “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of the speech or press.”

3 “The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good.”

4 “. . . The university shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its regents and in the administration of its affairs . . . .”

5 See footnote 4, ante.

6 “[N]o sectarian, political or partisan test shall ever be allowed or exercised in the appointment of Regents, or in the election of professors, teachers, or other officers of the University, or in the admission of students thereto, or for any purpose whatsoever . . . ."(Id., at p. 254.)

7 The state Constitution also guarantees speech, associational, and political rights in comparable, but independent, provisions. (Cal. Const., art. I, §§ 2, subd. (a), 3; see id., art. I, § 24 [“Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution”].) Because we find that plaintiffs are entitled to relief on other grounds, we need not address the effect of these provisions.

8 Decisions upholding the use of mandatory fees to create public fora, such as student newspapers and speakers’ bureaus, offer little assistance in resolving this case. (E.g., Kania v. Fordham (4th Cir. 1983) 702 F.2d 475; Arrington v. Taylor (M.D.N.C. 1974) 380 F.Supp. 1348; Veed v. Schwartzkopf (D.Neb. 1973) 353 F.Supp. 149.) No one argues that any of the student groups involved in the case before us is a public forum. To the contrary, the record clearly demonstrates that each is expressly devoted to advancing its own political and ideological causes.

Other decisions cited by the dissent to show that students may be compelled to fund political and ideological causes (Lace v. University of Vermont (1973) 131 Vt. 170 [303 A.2d 475]; Good v. Associated Students of Univ. of Washington (1975) 86 Wn.2d 94 [542 P.2d 762]) do little to support that position. The court in Good held that a student association receiving mandatory fees could not “become a vehicle for the promotion of one particular viewpoint, political, social, economic or religious,” and remanded for evidentiary proceedings to determine whether the university had failed to enforce its own guidelines on the use'of funds. (Good, supra, 542 P.2d at pp. 769-770.) The Lace court rejected a challenge to mandatory fees, but only because the record did not show that the student plaintiffs had “either pled or proved that they were required through the assessment of the mandatory student activities fee to finance the promotion of religious, political, or philosophical causes.” (Lace, supra, 303 A.2d at p. 479.)

9 ”[A]n incidental burden on speech is no greater than is essential, and therefore is permissible under O’Brien, so long as the neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” (Albertini, supra, 472 U.S. at p. 689 [86 L.Ed.2d atp. 548].)

In United States v. O’Brien (1968) 391 U.S. 367 [20 L.Ed.2d 672, 88 S.Ct. 1673], to which the Albertini opinion refers, the high court applied strict scrutiny to a symbolic conduct case.

“Application of a facially neutral regulation that incidentally burdens speech satisfies the First Amendment if it ‘furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.' ” (Albertini, supra, 472 U.S. at pp. 687-688 [86 L.Ed.2d at p. 547], quoting United States v. O’Brien, supra, 391 U.S. at p. 377 [20 L.Ed.2d at p. 680].)

10 Widmar v. Vincent (1981) 454 U.S. 263 [70 L.Ed.2d 440, 102 S.Ct. 269], which the Regents and the ASUC cite, does not compel a contrary conclusion. There, the high court held that a state university that made its facilities generally available for the activities of student groups could not close its facilities to one group because of its religious nature. But the high court did not hold that the university was required to create a forum generally open to student groups, let alone a particular type of forum. And the high court’s opinion, while mentioning that the groups in question were funded by a student activities fee (id., at p. 265 [70 L.Ed.2d at p, 444]), said nothing about the propriety of such funding or the problem of compelled speech.

11 A “partisan” is generally defined as “one that takes the part of another: an adherent to a party, faction, cause, or person . . . .” (Webster’s Third New Internat. Diet. (1982) p. 1647.)

12 “Student governments shall have the right to address and take positions on public issues. Positions on issues taken by student governments shall not be represented as or deemed to be official positions of the University. Compulsory student fees shall not be expended in support of such positions except for University-related purposes. Any communications by student governments or units thereof to Federal, State, or local government officials or bodies on such issues must avoid any implication that the positions taken are sponsored, endorsed, or favored by the University. This does not affect the right of any student, as an individual, to petition governmental officials or bodies.”