PHOENIX - 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, rather than be automatically charged the fee unless they opt out, was within the board's authority.
He also told U.S. District Court Magistrate David Duncan the association remains free to seek its $2-a-semester dues, just not to have the universities automatically collect them.
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 1-cent-per-dollar hike in the state sales tax for education and other causes, was opposed by Gov. Jan Brewer and most GOP legislators.
Several regents have said publicly that the $120,000 contribution was a factor in causing them to revisit the policy where the fee is automatically collected. Then students who object had to file a written request for a refund.
Kanefield said it does not matter if support for Proposition 204 was 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.
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. Montoya pointed to some U.S. Supreme Court cases that say government agencies cannot take an otherwise legal action for improper reasons.
The lawsuit is based on the claim the policy change is illegal because it causes "a chilling effect" on the association's political speech, and 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 also argued the U.S. Constitution prohibits federal courts from hearing civil-rights claims filed against the state or its agencies, which includes the Board of Regents.
Montoya disagreed, saying the regents are different from a state department because Arizona law spells out that it has the right to sue or be sued.
No date has been set for a hearing.