Is there legal recourse against the Regents? Perhaps.

1. Breach of contract

One option would be to file another class action under a similar breach of contract theory as Kashmiri. (In fact, the class entering after Kashmiri has filed their own lawsuit on the same theory.)

Following Kashmiri, the Regents moved quickly to shore up their public documentation so that there were no longer any references to keeping professional fees constant, etc. By the time the students in the class of 2007 were getting literature and applying – fall / winter 2003 – the “contract” had been substantially revised.

2. California Bus. & Prof. Code § 17200

This is California's all-purpose remedial statute for annoying business practices. Unfortunately there is sovereign immunity. Trinkle v. California State Lottery, 84 Cal.Rptr.2d 496 (1999). Dammit!

3. Unjust enrichment

Here's the idea. File an intervenor claim against both the Kashmiri class and the Regents to prevent either of them from unjustly benefitting from the proceeds of this temporary fee.

I liked this idea initially but more experienced legal minds have convinced me it's a loser. First, until some party has actually unjustly benefited, this claim would not be ripe. Second, the Kashmiri class can't be held liable if the Regents choose not to enforce the judgment.

The one situation where it might apply is if the Kashmiri class settles with the Regents and actually pays some portion of the disputed fees. In that case, the Regents really ought to refund the same amount of the temporary fees back to us. If they don't, an unjust enrichment claim could stand, since the Regents would otherwise be receiving double compensation.

4. Equal protection

Con law enthusiasts take note! As a state actor, the Regents are subject to the federal Equal Protection clause. The Regents are making a classification between professional students enrolled in the 2005-06 and 2006-07 school years, and everyone else. The Regents are applying differential treatment to this class of students (the $1750 temporary surcharge). Since there is no “suspect class” at issue, the action would be subject to rational basis review.

In general, there is precedent for lawsuits where the government has penalized plaintiffs depending on when they arrived. For example, in Zobel v. Williams, 457 U.S. 55 (1982), the court held that Alaska’s state dividend distribution program vio-lated equal protection guarantees by favoring established residents over new residents, despite only being subject to rational basis review. However, the issue in these cases is usually the interference with the right to travel.

There is negative precedent for lawsuits brought by students challenging fees. In Vlandis v. Kline, 412 U.S. 441 (1973), an exception to the right to travel was made for extra tuition charged to “non-resident” students. Classifying students by when they showed up was held to be a reasonable classification of citizens, and the non-resident charge was found constitutional.

To overcome rational basis review and the deference typically given to a body such as the Regents, we would have to show the classification was "arbitrary" or based on a "bare desire to harm". Recall the only reason the Regents are not assessing a system-wide surcharge now is because of the “political environment”.

As to "arbitrary", the Regents are taking a system-wide shortfall from the injunction and making a small group of students pay for it -- students who may go to the same schools as the class members in Kashmiri, but otherwise have nothing to do with them or that action. However, the Regents will argue the professional students have always paid more, so there's nothing new here.

As to "desire to harm", I think in the Regents' minds, since the Kashmiri injunction is taking away professional fees, then new professional fees ought to be assessed to replace them. It's almost like "hey the professional students sued us -- well they can pay us back!" I detect a somewhat punitive edge to the decision-making process.

...

The problem is, there's no slam-dunk legal claim here. And to justify the expense of intitiating a new class action, there'd need to be one. Obviously the Regents have the right to increase fees. And they have the right to collect more fees from professional students.

This new temporary fee rankles the conscience because of a) the reason it's being levied and b) the way it seems precisely calculated by the Regents to be as annoying as possible without triggering full-scale mutiny. But it may well be legal. Dontcha wish we still had distinct courts of equity?

03 Oct 05