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Attorney Stephen Montoya Provides Key Argument in Retaliation Case

The Arizona Student’s Association’s case against the state’s Board of Regents was helped considerably by the persistence of the association’s council, Attorney Stephen Montoya of Montoya, Lucero & Pastor, PA.

The association made a claim of retaliation for exercising their First Amendment rights against the board when the Board of Regents chose to suspend collection of a student fee. Historically the Arizona Student’s Association collected a $2, refundable, student fee from each student at each of the three State Universities. The Board of Regents agreed to collect the fee. The Arizona Student’s Association supported Proposition 204 by collecting signature and contributing financially to the Proposition 204 campaign.

Proposition 204 would have created a one cent sales tax to finance various educational programs throughout Arizona, including programs at the three State Universities. The Arizona Joint Legislative Budget Committee estimated that Proposition 204 would have generated an additional $50 million of funding for Arizona’s three public universities. The governor of Arizona opposed proposition 204. At the December 6-7, 2012 meeting, the Arizona Board of Regents voted to suspended collection of the fee. At that meeting members of the Board of Regents acknowledged that suspension of the collection of the student fee was political in nature and resulted from ASA’s advocacy in support of Proposition 204.

The Board of Trustees later modified the policy regarding collection of the student fee allowing for the collection of the fee from those students who opted-in to paying the fee. In the law suit, the Arizona Student’s Association alleged that the Board of Regents suspension and modification of the student-fee collection was done in retaliation for ASA’s advocacy in support of Proposition 204. The student association alleged the Board of Regents retaliation violated ASA’s free speech rights under the First Amendment to the United States Constitutiion.

Attorney Stephen Montoya appealed the student association’s case to the 9th Circuit Court of Appeal. A panel of 9th Circuit Judges have not indicated when it will make its ruling.

Montoya posited that this was a clear case of retaliation when the board voted to suspend collecting student fees and then to collect the fee only from students who had “opted in.”

While a district court had previously determined no retaliation was present in the association’s claims, Montoya was able to argue instead that “the entire motive for initial suspension and substantial revocation is material, and the most important element in a First Amendment retaliation claim is motive.”

Attempt to counter this argument by Kanefield were turned aside by the panel. Regarding the students’ First Amendment freedom of speech, one of the members concluded “these students lost something valuable because of their political activity.”