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Arizona Students Association Can Sue Board Of Regents Over Fee Withholding

(Photo courtesy of ASA twitter)

Saying there's evidence of illegal retaliation, a federal appeals court gave the go-ahead Wednesday for the Arizona Students Association to sue the Board of Regents to get back money the latter group says was illegally withheld.

In a unanimous ruling Wednesday, the 9th U.S. Circuit Court of Appeals said there was enough evidence to support the claim that the regents financially undermined the student group because of its support of a 2012 initiative to hike taxes for education. That measure was opposed by Gov. Jan Brewer, Republican lawmakers and several board members.

It was after that initiative was defeated that the regents voted to suspend fee collection for the association.

The board later agreed to collect it-- but only from students who first agreed to pay it. Finding itself without any funding, the association filed suit.

Appellate Judge Richard Paez, writing for the court, acknowledged nothing in law ever actually required the regents to collect a fee from students to run the association and support its political activities.

"But having done so for 15 years at no cost, ABOR could not deprive ASA of the benefit of its fee collection and remittance services in retaliation for the ASA's exercise of its First Amendment rights,'' Paez wrote. And he said the sudden change by the governmental agency in depriving the association of the benefits of the fee collection is "sufficiently valuable to give rise to a retaliation claim.''

Wednesday's ruling, however, does not mean money will again start flowing to the association. Unless overturned on appeal, all it means is the trial judge who initially threw out the case now will have to consider it.

But attorney Stephen Montoya who represents the ASA said the decision also paves the way to challenge a subsequent vote by the legislature, also aimed at the student association, to make it illegal for the regents to use its billing system to collect any fee for any organization not under the board's jurisdiction. He said that means the association could get back not only the money the board has previously withheld but could force Arizona to reinstate the $2-a-semester fee on students that raises more than $500,000 a year to fund the association's activities, political and otherwise.

Board spokeswoman Sarah Harper said the regents will discuss the ruling with lawyers at their next meeting to decide what action to take.