ORDER AND OPINION [Re: Motion at Docket 9]
JOHN W. SEDWICK, District Judge.
I. MOTION PRESENTED
At docket 9, defendant Arizona Board of Regents ("ABOR") moves to dismiss the complaint filed by plaintiff Arizona Students' Association ("ASA") based on Eleventh Amendment immunity and based on Rule 12(b)(6) of the Federal Rules of Civil Procedure for failing to state a claim for which relief can be granted. ASA responds at docket 19, and ABOR replies at docket 24. Both parties request oral argument, but the motion has been thoroughly briefed, and oral argument would not be of further assistance to the court.
ASA is a nonprofit student organization which is independently incorporated and operates separately from ABOR, which is the governing body of Arizona's three public universities ("Universities"). ASA was established in 1974 to advocate for the affordability, accessibility, and quality of education at the Universities. ASA was originally funded directly by ABOR, but in 1998 students voted to fund ASA by means of a one-dollar fee per semester. ABOR agreed to collect the one-dollar fee on behalf of ASA in conjunction with the collection of tuition at the beginning of each semester and did not require ASA to reimburse the Universities for the administrative costs associated with collecting the fee. Students were allowed to opt out of the fee by requesting a refund pursuant to ASA's published procedures.
In 2008, the amount of the ASA fee increased to two dollars each semester. Students again had the option to opt out of the ASA fee by requesting a refund under ASA's published procedures. Again, ABOR agreed to collect the two-dollar fee with tuition at the beginning of each semester and did not charge ASA administrative fees for doing so.
In accordance with its organizational purpose, ASA actively supported an Arizona ballot measure known as "Proposition 100, " which established a temporary, one-cent sales tax to, among other things, finance various educational programs at the Universities. The sales tax was set to expire in 2013, and ASA publicly advocated for the permanent extension of the sales tax. It helped draft the "Arizona Sales Tax Renewal Amendment, " or "Proposition 204." It facilitated getting the requisite signatures to have it placed on the November 6, 2012 ballot and spent money campaigning in support of Proposition 204. The proposition was defeated.
After the election, ABOR proposed and passed a revision to its policy regarding the collection of the ASA fee. Pursuant to the new policy, the ASA fee will be collected through an opt-in system, whereby the ASA fee will only be collected with tuition from students who agree to pay the fee in advance, and ASA will be required to reimburse the Universities for the administrative costs of collecting the fee. The change is set to begin for the Fall Semester of 2013.
ASA filed the complaint against ABOR pursuant to the Civil Rights Act of 1871, 42 U.S.C. §1983. ASA alleges that several of ABOR's board members criticized ASA's actions in relation to Proposition 204 and that several members said the decision to revise its fee-collection policy was political in nature. Therefore, the complaint alleges, ABOR's revision of its policy governing the collection of ASA's student fees was based upon the content of ASA's political speech in violation of its First Amendment free speech rights. The complaint also alleges that ABOR's revision was made in retaliation for ASA's exercise of its free speech rights.
III. STANDARD OF REVIEW
ABOR brings this motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Rule 12(b)(6) tests the legal sufficiency of a plaintiff's claims. In reviewing such a motion, "[a]ll allegations of material fact in the complaint are taken as true and construed in the light most favorable to the nonmoving party." To be assumed true, the allegations "may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and enable the opposing party to defend itself effectively." "Dismissal for failure to state a claim can be based on either "the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." "Conclusory allegations of law... are insufficient to defeat a motion to dismiss."
To avoid dismissal, a plaintiff must plead facts sufficient to "state a claim to relief that is plausible on its face." "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." "The plausibility standard is not akin to a probability requirement' but it asks for more than a sheer possibility that a defendant has acted unlawfully." "Where a complaint pleads facts that are merely consistent' with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.'" "In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief."
A. Sovereign ...