Was the AG's 1985 opinion limiting how Oregon public universities can spend mandatory student fees on political advocacy still good law in 2015?

Plain-English summary

In 1985, the Oregon AG issued an opinion that significantly constrained how Oregon public universities could spend the "incidental fees" all enrolled students paid into a pool used for student organizations and extracurricular activity. The 1985 opinion read ORS 260.432 (Oregon's electioneering-by-public-employees law) to forbid universities from passing fee revenue to student groups that supported or opposed ballot measures, treated other "constitutional constraints" as banning partisan-election spending entirely, and required that any politically active spending happen only under direct board supervision and only when it directly benefited the broader student body.

Three decades later, the law had moved. The Legislature repealed former ORS 351.070(1)(d) in 2013 and reorganized public university governance, replacing the State Board of Higher Education's case-by-case fee approval with institutional governance boards. Federal First Amendment doctrine, particularly Board of Regents v. Southworth, 529 U.S. 217 (2000), reframed the analysis around viewpoint-neutrality at public universities rather than a flat ban on political spending. The Office of the Governor asked the AG to revisit the 1985 conclusions.

Attorney General Ellen F. Rosenblum's office responded that all three of the 1985 conclusions should no longer be relied on. The AG did not redo the underlying analysis. The opinion is limited to the question of continued reliance, but flagged that universities and their attorneys would need to redo the analysis under current law before relying on the 1985 framework.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

What the 1985 opinion said

The 1985 opinion (44 Op Atty Gen 448) addressed whether mandatory student incidental fees could fund organizations that engaged in political or ideological advocacy on ballot measures, legislation, administrative rulemaking, or judicial proceedings. It concluded:

1. Former ORS 351.070(1)(d) authorized the fee assessment, and "cultural" student development arguably included political and ideological activity.
2. ORS 260.432 nevertheless prohibited using the fees to support or oppose ballot measures because incidental fees were public funds and the State Board of Higher Education's supervision meant any fee spending was effectively the board doing it through students.
3. Burt v. Blumenauer and persuasive authority from elsewhere imposed constitutional constraints that prohibited using public funds for "any partisan election activities whatsoever."
4. Even otherwise permissible political activity had to be under direct board supervision and benefit the collective interests of paying students; off-campus activities generally did not qualify.

What changed

The 2013 reorganization of Oregon higher education repealed former ORS 351.070(1)(d). The current statutory authority for incidental fees flows from institutional governing-board statutes rather than a single statewide approval framework. Federal First Amendment doctrine evolved through Board of Regents v. Southworth (2000), which permits public universities to assess mandatory fees and distribute them to student speech as long as the distribution is viewpoint-neutral.

What this opinion did and did not do

It did say the 1985 framework should not be relied on. It did not provide a new framework. The opinion expressly limits its scope: "This opinion is limited to that question and does not attempt to answer the original questions under the current state of the law." Universities seeking guidance on what they can or cannot fund had to develop new analysis based on current statutes and First Amendment doctrine.

Common questions

Q: What are "student incidental fees"?
A: Mandatory fees assessed alongside tuition at Oregon public universities, used to fund student organizations, programs, and extracurricular activities. They are public funds in the sense that they flow through public university accounts.

Q: Did this opinion authorize universities to fund political advocacy?
A: No. It only said the 1985 prohibitions could no longer be relied on. The current rules depend on current statutes, university policies, and First Amendment doctrine.

Q: What is "viewpoint-neutrality"?
A: A First Amendment principle requiring government funding programs that subsidize private speech to apply criteria that do not turn on the speaker's viewpoint. Board of Regents v. Southworth (2000) applied it to mandatory student fees at public universities.

Q: Did this affect off-campus political activities by student groups?
A: The 1985 opinion's restriction on off-campus activities was identified as one of the conclusions that should no longer be relied on. The current rule depends on the university's policy and current First Amendment doctrine, not the 1985 standard.

Background and statutory framework

Before 2013, Oregon's State Board of Higher Education set incidental fees institution-by-institution under former ORS 351.070(1)(d). The 2013 higher education reorganization (Or Laws 2013, ch 747) gave each public university its own governing board, repealing the central authority. The federal Southworth decision, decided in 2000, displaced the Burt v. Blumenauer-style analysis that had informed the 1985 opinion's view of constitutional constraints.

Citations and references

Statutes:
- Former ORS 351.070(1)(d) (1985) (repealed)
- ORS 260.432 (public-employee electioneering)

Cases:
- Burt v. Blumenauer, 299 Or 55, 699 P2d 168 (1985)

Prior opinion:
- 44 Op Atty Gen 448 (1985)

Source

• Index page: https://www.doj.state.or.us/oregon-department-of-justice/office-of-the-attorney-general/attorney-general-opinions/
• Original PDF: https://www.doj.state.or.us/wp-content/uploads/2015/06/op8289.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ELLEN F. ROSENBLUM
ATTORNEY GENERAL

FREDERICK M. BOSS
DEPUTY ATTORNEY GENERAL

DEPARTMENT OF JUSTICE

Justice Building
1162 Court Street NE
Salem, Oregon 97301-4096
Telephone: (503) 378-4400

June 30, 2015

No. 8289

In 1985, we issued an opinion concerning the use of student incidental fees, which all
students at Oregon public universities were required to pay to fund extracurricular activities,”
The opinion addressed whether those fees could fund student organizations that would use them
to engage in specific types of political or ideological advocacy. 44 Op Atty Gen 448 (1985).
Since then, both the Oregon law authorizing the fees and the analysis that applies to assessing the
constitutionality of using those fees for political purposes has changed. In light of those
developments, we have been asked us to revisit our 1985 opinion and advise whether its
conclusions should still be relied on. This opinion is limited to that question and does not
attempt to answer the original questions under the current state of the law.” Below, we set out
the question and our short answer, followed by a discussion of the 1985 opinion, the
developments since then, and how those developments affect the continuing validity of
conclusions in our 1985 opinion.

QUESTION PRESENTED

Do statutory and case law developments since 1985 affect the analysis used in the 1985
opinion such that any or all of its conclusions no longer should be relied on?

ANSWER GIVEN
Yes. Given those developments, the following conclusions should no longer be relied on:

1. That ORS 260.432 forbids providing student incidental fees to organizations that,
   through the expenditure of the received funds, will support or oppose ballot measures
   before Oregon voters; ,

2. That “constitutional constraints” prohibit providing student incidental fees to an
   organization that, through the use of received funds, will intervene or participate in
   any campaign, endorse or oppose a candidate, or take a position on an issue in an
   election campaign for the purpose of assisting or opposing a candidate; and,

3. That student incidental fees may fund organizations’ political or ideological speech
   activities only if the program is under the supervision or control of the board and if

the activity will directly benefit the collective interests of the students who must pay
them. Off-campus activities generally will not meet the latter requirement.”

DISCUSSION
I. 1985 Attorney General Opinion

In 1985, the State Board of Higher Education, for each institution under its control, was
authorized to:

Prescribe incidental fees for programs under the supervision or control of the
board found by the board, upon its own motion or upon recommendation of the
recognized student government of the institution concerned, to be advantageous to
the cultural or physical development of students[.]

Former ORS 351.070(1)(d) (1985). That subsection’s language was repealed by Or Laws 2013,
ch 747, § 200. All students were required to pay those fees, in addition to tuition, as a condition
of enrollment,

At that time, we were asked whether the fees could fund an organization that would use
them to advocate definitive positions on: (a) ballot measures before Oregon voters; (b) legislation
before the Oregon Legislative Assembly; (c) administrative rules or policies of state or federal
agencies, including the State Board of Higher Education; or, (d) issues before state or federal
judicial tribunals. 44 Op Atty Gen at 449.

A, Former ORS 351.070(1)(d) authorized funding for political and ideological
advocacy

We first considered whether former ORS 351.070(1)(d) authorized the funding of political
or ideological advocacy activities. We concluded that it did, We reasoned that “cultural”
development encompassed the full spectrum of artistic, humanitarian and intellectual endeavors,
including political or ideological advocacy, hence the board could find that those types of
activities were advantageous to student cultural development. 44 Op Atty Gen at 453-54.

B. ORS 260.432 prohibited certain expenditures for ballot measure advocacy

We next considered whether an Oregon election finance law, ORS 260.432, prohibited
funding organizations that would use the fees to promote or oppose the adoption of a ballot
measure before Oregon voters. We concluded that it did.

ORS 260.432 (1985) provided, in pertinent part, that [nJo person shall attempt to, or
actually, coerce, command or require a public employee to influence or give money * * * to
promote or oppose * * * the adoption of a measure” and “[nJo public employee shall solicit any
money * * * or otherwise promote or oppose * * * the adoption of a measure.”

We found that statute to apply to the provision of student incidental fees, because the fees
unquestionably were public funds and, although students were not public employees, any funded
activity “must by definition be under the supervision and control of the board * * * [and] [t]he
board cannot do indirectly that which it cannot do directly.” 44 Op Atty Gen at 456.
Accordingly, we concluded that “the board does not have authority to fund through incidental
fees an organization or program advocating support or opposition of a measure before Oregon
voters.” Jd.

Cc. Other constitutional constraints limited use for partisan election activities

Next, relying on “constitutional observations” made by the Oregon Supreme Court in
Burt v. Blumenauer, 299 Or 55, 699 P2d 168 (1985), and the persuasive authority from other
jurisdictions discussed in that case, we concluded that the fees could not be used “for any
partisan election activities whatsoever” including “use of incidental fee funds by any group or
organization to intervene or participate in any campaign, to endorse or oppose a candidate, or to
take a position on an issue in an election campaign for the purpose of assisting or opposing a
candidate.” 44 Op Atty Gen at 456-57.

In Burt v. Blumenauer, the Oregon Supreme Court considered whether county officials
permissibly used county funds to oppose the adoption of an anti-fluoridation measure before the
voters. The court held that ORS 260.432 prohibited that use. But, in what we acknowledged
was dicta, the court engaged in a long discussion of potential constitutional restraints on the use
of public funds by a government to take a position on a measure before the voters, The
potentially pertinent constitutional restraints included the guarantee of a republican form of
government, free and equal elections, and the rights of the people to consult for the common
good and to instruct their representatives. 44 Op Atty Gen at 466 n 6.

Blumenauer concerned “government speech,” i.¢., the government using public funds to
advance its own position before the electorate. The cases from other jurisdictions cited by the
court in Blumenauer also exclusively concerned “government speech.” 299 Or at 58. Our
opinion did not address whether funding student organizations that would use the funds to advance
their own positions amounted to “government speech.” We simply concluded, without discussion,
that the reasoning from cases concerning government speech applied. We did clarify, however,
that “[oJur conclusion * * * does not extend to the use of funds for making a campus forum
available in which individuals or groups espouse their support or opposition on election matters,
thus facilitating debate and exchange of wide-ranging viewpoints.” 44 Op Atty Gen at 466 n 8.

D. First Amendment constraints

Last, we discussed the lawfulness of appropriating incidental fees for lobbying before the
Legislative Assembly and government agencies and for litigation activities. We concluded that
no Oregon statute prohibited allocations for those uses, but the use of those fees for
political/ideological speech-related activities implicated the free speech rights guaranteed by the
First Amendment to the United States Constitution of students who were compelled to fund
speech with which they disagreed. Jd. at 457.

We relied on the United States Supreme Court’s “compelled speech” precedents,
particularly Abood v. Detroit Board of Education, 431 US 209, 97 8 Ct 1782, 52 L Ed 2d 261
(1977), which involved a union’s use of compulsory dues for lobbying and other political
activities. The Court held that when the government forces individuals to contribute to the
support of ideological causes that they oppose, their First Amendment rights are implicated. /d.
at 234-35. To protect those rights, persons could be compelled to pay fees for those activities
only if they are “germane” to the organization’s mission. Jd. at 235-36.

We summarized the appropriate analytical framework as follows: “expenditures are
constitutionally permissible if a compelling or similarly weighty governmental interest is served
by the funded activities and by the compulsory system for their funding * * * [and if] the
programs supported by those fees * * * directly benefit the collective interests of the class
members.” 44 Op Atty Gen at 459.

Applying those principles to mandatory student incidental fees, we concluded that the
state had a compelling interest “in facilitating a campus forum for the exchange of potentially
controversial political and ideological viewpoints[.]” Jd. at 460, We found equally compelling
the state’s interest in requiring all students to contribute financially. /d.at 461.

But we concluded that the “germaneness” requirement limited the circumstances in
which fees paid by dissenting student could be used to fund political/ideological activities. We
particularly cautioned that funding political or ideological advocacy in forums outside of the
university environment might not meet the germaneness requirement, because those activities
were less likely to serve the interests of students as a whole. Id. at 462. We also cautioned
against funding the off-campus activities of “an entity devoted to the attainment of fixed
ideological objectives; the cultural enhancement of the students forced to support the activity
should be more than simply a by-product of the program if it is funded with incidental fees.” Jd.

IL First Amendment case law since 1985

Up until 2000, federal courts applied the same First Amendment analysis that we did in
cases challenging public universities’ authority to compel their students to fund political speech
with which they disagreed. But in 2000, the United States Supreme Court ruled on such a
challenge and applied a different analysis. In Board of Regents of Univ. of Wisc. System v.
Southworth, 529 US 217, 120 S Ct 1346, 146 L Ed 2d 193 (2000), the Court considered whether
the First Amendment prohibited the University of Wisconsin from compelling students to pay
_ fees that would be used to fund registered student organizations (RSOs) that engaged in political
and ideological expressive activities offensive to the students.

As a preliminary matter, the Court clarified that:

[t]he case we decide here * * * does not raise the issue of * * * the
state-controlled University’s right[] to use its own funds to .
advance a particular message. The University’s whole justification
for fostering the challenged expression is that it springs from the

initiative of students, who alone give it purpose and content in the
course of their extracurricular endeavors.

• • • Tf the challenged speech here were financed by tuition
      dollars and the University and its officials were responsible for its
      content, the case might be evaluated on the premise that the
      government itself is the speaker. That is not the case before us.

Id. at 229.

The Court held that the University “may determine that its mission is well served if
students have the means to engage in dynamic discussions of philosophical, religious, scientific,
social, and political subjects in their extracurricular campus life outside the lecture hall. If the
University reaches this conclusion, it is entitled to impose a mandatory fee to sustain an open
dialogue to these ends.” Jd. at 233.

The Court found its compelled speech precedents to be applicable in that they correctly
identified that First Amendment rights are implicated when individuals are compelled to fund
speech with which they disagree. Jd. at 231. But “the means of implementing First Amendment
protections adopted in * * * [the compelled speech] decisions are neither applicable nor
workable in the context of extracurricular student speech at a university.” Id. at 230. The court
explained that the:

standard of germane speech as applied to student speech at a university is
unworkable * * *,

The speech the University seeks to encourage in the program before us is
distinguished not by discernable limits but by its vast, unexplored bounds. To
insist upon asking what speech is germane would be contrary to the very goal that
the University seeks to pursue. It is not for the Court to say what is or is not
germane to the ideas to be pursued in an institution of higher learning.

Id. at 232.

Instead, the Court held that the way to safeguard the rights of dissenting students is to
ensure that the mandatory fee system is administered in a viewpoint neutral manner that does not
discriminate against minority views in favor of majority views. Jd. at 233. This standard is
taken from the Court’s “public forum” cases. The Court drew an analogy between the
nonphysical forum created through the mandatory fee system and physical public forums like
parks, where speech restrictions must be imposed in a viewpoint neutral fashion. Jd.

The Court had first applied the public forum analysis in the context of mandatory
incidental fees in Rosenberger v. Rector and Visitors of Univ of Va, 515 US 819, 115 S Ct
2510, 132 L Ed 2d 700 (1995). In that case, students claimed that the University of Virginia’s

refusal to use mandatory student fees to pay the publishing costs of a student newspaper that
articulated a religious viewpoint violated their First Amendment right to free speech, Jd. at 829.

As in Southworth, the Court concluded that the funded speech was not that of the
University either directly or indirectly. Instead, the university program funded the private speech
of students when it paid for speech-related activities with mandatory student fees. Jd. at 834.
The Court reasoned that in creating a mandatory student activity fee and allocating the fee to
student organizations for speech-related activities, the university had created a limited public
forum and could not exclude speech because of the viewpoint expressed. Viewpoint
discrimination is presumed to be impermissible when directed against speech that is otherwise
within the forum’s limitations. Jd. at 829-30.

The Court in Southworth addressed the details of a viewpoint neutral system for
allocating mandatory student fees only in two particulars. First, it explained that the First
Amendment does not require a distinction between on-campus and off-campus activities:

We find no principled way * * * to impose upon the University, as a
constitutional matter, a requirement to adopt geographical or spatial restrictions as
a condition for the student organization’s entitlement to reimbursement.
Universities possess significant interests in encouraging students to take
advantage of the social, civic, cultural, and religious opportunities available in
surrounding communities and throughout the country * * * [and] are finding that
traditional conceptions of territorial boundaries are difficult to insist upon in an
age marked by revolutionary changes in communications, information transfer,
and the means of discourse.

Id. at 234. But the Court clarified that the university was free to enact viewpoint-neutral
restrictions on funding off-campus speech if it determined that off-campus speech did not relate

to the purpose of the fee.

Second, the Court expressed reservations about the use of a referendum process to
allocate mandatory incidental fees for speech and expressive activities, reasoning that, to the
extent that it substituted majority vote for viewpoint neutrality, the process would “undermine
the constitutional protection the program requires.” Jd, at 235. It explained that “[a]ccess to a
public forum * * * does not depend upon majoritarian consent.” Jd. To be clear: Southworth
decided the First Amendment constraints on fee allocations only in a mandatory student-fee
system, Southworth does not require the viewpoint neutral allocation of optional or refundable
student fees. Id. at 232. Accordingly, the Court’s reservations about a referendum process do
not apply in the context of a non-mandatory or refundable fee system.

Ill. Oregon statutory changes since 1985

Pertinent Oregon statutory law has also changed since we issued our opinion. Those
changes call into question the continuing validity of conclusions in our 1985 opinion. Former

ORS 351.070(1)(d) required that fees be provided only for programs “under the supervision or
control of the board.” That statute has been replaced with ORS 352.105, which provides that:

(1) The board for each public university listed in ORS 352.002 shall
collect mandatory incidental fees upon the request of the recognized student
government under a process established by the recognized student government of
a university in consultation with the board. The process may include a student
body referendum conducted under procedures established by the recognized
student government. Mandatory incidental fees collected under this section shall
be allocated by the recognized student government.

(2)(a) The mandatory incidental fee, use of the fee or decision to modify
an existing fee may be refused by the board or the president of a university under
the board’s control if the board or president determines that:

(A) The recognized student government assessed or allocated the
mandatory incidental fees in violation of applicable local, state or federal law;

(B) The allocation conflicts with a preexisting contractual financial
commitment;

(C) The total mandatory incidental fees budget is an increase of more than
_ five percent over the level of the previous year; or

(D) The fee request is not advantageous to the cultural or physical
development of students.

(b) The mandatory incidental fee, use of the fee or decision to modify an
existing fee may not be refused by the board or the president of a university based
on considerations about the point of view that the funding seeks to advance.

(3) The recognized student government and the board shall seek to reach
agreement on any dispute involving mandatory incidental fees, if necessary with
the aid of mediation, prior to a decision by the board.

(4) If an agreement is not reached, the decision of the board may be
appealed to the Higher Education Coordinating Commission by the recognized
student government within seven days of the board’s decision. The board shall
submit its response within seven days of the appeal. The commission shall render
its decision within seven days of its receipt of the board’s response.

(5) Mandatory incidental fees are not subject to ORS 352.102.

IV. Case law and statutory changes affect the continuing validity of conclusions in our
1985 opinion

A. Applicability of ORS 260.432

As discussed above, ORS 260.432, an election finance law, prohibits certain actions by
“public employees.” In our 1985 opinion, we concluded that ORS 260.432 applied when the
State Board of Higher Education provided mandatory incidental fees to student organizations
that would use them to advocate for or against a ballot measure. We reasoned that “[a]lthough
students are not public employees, any activity lawfully funded with incidental fees must by
definition be under the supervision or control of the board” and the board could not do indirectly
what it could not do directly. 44 Op Atty Gen at 456.

Unlike former ORS 351.070(1)(d), ORS 352.105 does not require that programs funded
with mandatory incidental fees be under the supervision or control of the boards that collect
them. Hence, the statutory basis for our conclusion that ORS 260.432 applied no longer exists
and our conclusion should no longer be relied on.

B. Constitutional constraints on government speech

Our conclusion that “constitutional constraints” prohibit the use of mandatory fees for
partisan political activity also is in question given statutory and case law developments. As
discussed, we based our conclusion on cases specific to “government speech.” The mandatory
fee statute operative as of July 1, 2014, no longer limits funding to programs under the control or
supervision of boards. And the United States Supreme Court has made clear that it does not
consider mandatory incidental student fee systems similar to Oregon’s to implicate “government
speech.” Those changes call into question the continuing validity of our conclusion that
“constitutional constraints” applicable to government speech prohibit providing mandatory
student incidental fees to students groups that will use them to engage in partisan political
activities,

Cc, First Amendment case law since 1985”

Finally, the First Amendment analysis that we applied in 1985 no longer is correct in
light of Southworth. Before July 1, 2014, there may have been some debate about whether the
Southworth framework applied, as the Oregon statute permitted funding only for programs
under the control or supervision of the board. That requirement raised at least some question
whether Oregon’s system was distinguishable from the one reviewed in Southworth because the
board might be deemed to have some responsibility for the speech. But under ORS 352.105
boards are no longer required to control or supervise the funded programs and the analytical
framework in Southworth applies.

Under the Southworth framework, the pertinent analysis no longer is whether the
political or ideological speech is germane to the university’s purpose. Thus, our application of
the “germaneness” standard, and our conclusion based on that standard that use of the fees for

political or ideological speech was limited to uses that benefitted students as a whole no longer is
correct, Allocations of mandatory student incidental fees for political or ideological speech
activities now must be analyzed under the viewpoint neutrality standard.” Moreover, the Court
in Southworth expressly disavowed that the First Amendment requires universities to distinguish.
between on-campus and off-campus activities. Our conclusion to the contrary no longer is

correct,
J, (omate—

ELLEN EF. ROSENBLUM:
Attorney General

"Tn 1985, those fees were called “student incidental fees.” Former ORS 351.070(1)(d) (1985),
since arnended by Or Laws 2013, ch 747,.§ 200. They are now called “mandatory incidental fees.”
ORS 352,105,

• Oregon’s public universities generally no longer receive legal advice from the Department of
  Justice. See ORS 351.011(3) (providing that the Oregon University System “is not eligible to request or
  receive legal services from the Attorney General and the Department of Justice pursuant to ORS chapter
  180, except as otherwise expressly provided by law.”); ORS 352.033 (providing that a university with its
  own governing board is not considered “a state agency, board, commission or institution for purposes of
  state statutes”); ORS 352.107(0) (universities with governing boards are authorized to hire attorneys “for
  the provision of all legal services”); ORS 180.060(2) (providing that the Attorney General shall give
  opinion in writing when requested. by the Governor, any officer, agency, department, board or

• eommission of the state or any member of the legislature). The Governor requested this opinion.

• tn 1985, we concluded that, under former ORS 351,070(1)(d), one condition for use of the fees
  was that the board determined the activity to be advantageous to the cultural or physical development of
  students, Under the new mandatory incidental fee statute, ORS 352.105, a board “may” refuse a fee
  request if it determines that the fee is not advantageous to the cultural or physical development of
  students, ©

“Tn our 1985 opinion, we confined our free speech analysis to the federal constitution and did not
consider the issue under the Oregon Constitution.

• The viewpoint neutrality standard does not apply to optional or refundable student-fees systems,