Aaron Flint v. George Dennison, in his official Capacity as President of the University of Montana-Missoula(UMT), etc., et al.

We are called upon to decide whether the University of
Montana may impose a dollar limit on what a student may
spend on his campaign for student office. The University's
limit did not affect how the money could be spent; rather, it
directly told a student how much he could spend to get
elected. The Federal Election Campaign Act of 1971 could
not tell James Buckley how much of his money he could
spend to be elected a United States Senator. Buckley v. Valeo,
424 U.S. 1, 51-54 (1976) (per curiam). Why, then, may a state
university tell students how much they may spend to be
elected to student office? Because, unlike the exercise of
state-wide political self-determination at a national level at
issue in Buckley, the student election at issue here occurred in
a limited public forum, that is, a forum opened by the University
to serve viewpoint neutral educational interests but closed
to all save enrolled students who carried a minimum course
load and maintained a minimum grade-point average. These
educational interests outweigh the free speech interests of the
students who campaigned within that limited public forum.

When Aaron Flint was a student at the University of Montana,
he twice exceeded the $100 campaign expenditure limit
imposed on student candidates for positions in the Associated
Students of the University of Montana ("ASUM"). Following
the second violation, Flint was denied a seat as ASUM Senator.
Flint sued ASUM, the University, and ASUM officers,
claiming the spending limit, as applied, violated his First
Amendment right to freedom of speech. Flint now appeals the
district court's order of summary judgment in favor of defendants.
The precise question before us is this: Does the Speech
Clause of the First Amendment to the United States Constitution
prohibit a public university from imposing a $100 expenditure
limit on candidates running for a position in student
government? U.S. Const. amend. I ("Congress shall make no law . . . abridging the freedom of speech . . . ."). We conclude
that it does not.

I.

A.

The University of Montana is a public university under the
Montana Constitution; it is administered through a Board of
Regents. Mont. Const. art. X, § 2. The Board of Regents
requires that the University's student government organization
meet certain requirements. For instance, the student government
must follow all Board policies, and the student
government's constitution must be approved by the president
of the University.

ASUM is the student government at the University of Montana.
ASUM is a "representative body of the members of the
Association, organized exclusively for educational and nonprofit
purposes." ASUM Const. art. 2, § 1, available at http://
www.umt.edu/asum/government/constitution.htm. Under its
constitution, ASUM's "primary responsibility . . . is to serve
as an advocate for the general welfare of the students." Id.
ASUM "government and activities" must "comply with Montana
State law and the policies of the Montana Board of
Regents on Higher Education." Id. § 4. All students at the
University registered for seven or more credits during the Fall
and Spring semesters are assessed an activity fee, and each
student who pays this fee is a member of ASUM. Id. art. 1,
§ 2.

ASUM not only serves to represent the students at the University
but also provides hands-on, practical educational
opportunities for University students. As explained by
ASUM's senior faculty advisor.

ASUM offers students experience in many forms of
leadership, through which they develop a variety of skills to handle the responsibilities that arise in student
government. ASUM senators and executives
learn how to address conflicting interests of diverse
constituencies, how to make recommendations about
the allocation of budgetary resources, how to negotiate
with administrators over matters such as tuition
and fee increases, and how to draft policies and priorities
for numerous student programs.

Since ASUM's inception in 1906, the University has viewed
ASUM as an invaluable educational tool for students of the
University. ASUM exists, according to its senior faculty advisor,
for "essentially educational purposes."

Consistent with its goals of representing the students at the
University and providing students with leadership opportunities,
ASUM allows for the election of three student executives
and twenty student senators. ASUM Const. art. 4, § 1(a) Article
7 of the ASUM Constitution and Article 4 of the ASUM
Bylaws impose several procedures and restrictions on the student
election process. For example, only ASUM members,
i.e., Student Activity Fee-paying students of the University,
who maintain at least a 2.0 cumulative grade point average
are eligible to run for elected office. Id. art. 7, § 1. Students
must be registered for at least one credit to vote in any ASUM
election. Id.

The ASUM Bylaws broadly regulate campaigning, which
is defined as "any activity which directly or indirectly promotes
the candidacy of one or more individuals for office."
ASUM Bylaws art. V, § 2.A, available at http://
www.umt.edu/asum/government/bylaws.htm. The Bylaws
provide that on campus campaign materials may be displayed
only after the official campaigning period begins and only in
certain areas. Id. §§ 2.B-C, 2.F.2-4. The Bylaws further prohibit
any door-to-door campaigning in University residence
halls or family housing and condition campaigning in a classroom
on the permission of the professor. Id. § 2.E.

At issue in the case at bar is the Bylaws' campaign expenditure
limitation: $100 for individual candidates for office. Id.
§ 2.G.1-3. The Bylaws require each student candidate to document
and make public his expenditures two days prior to the
general election. Id. § 2.H. ASUM reimburses candidates for
a portion of their expenditures. Id. § 2.G.4. The Bylaws prescribe
that all contributions to campaigns come from students;
corporate and political action committee contributions are
prohibited, as are contributions from ASUM-sponsored organizations.
Id. § 2.G.5, I. As a means of enforcing these campaign
regulations, the Bylaws provide that any candidate who
violates the election rules may be barred from candidacy or
denied office.

B.

With this general background in place, we turn to the facts
of this case. Flint ran for and won election on a joint ticket
with Gale Price as ASUM President and Vice-President,
respectively, for the 2003-2004 academic year. Flint and Price
combined to spend about $300 on their campaign and failed
fully to disclose these expenditures as required by the ASUM
Bylaws. The ASUM Senate censured both Flint and Price for
exceeding the campaign expenditure limit but allowed them
to retain their offices as ASUM President and Vice-President.

The following year, Flint ran for a term as ASUM Senator
and again exceeded ASUM's spending limit. Upon submitting
his campaign expenditure form on April 26, 2004, in which
Flint reported expenditures of $214.69, Flint was informed by
ASUM Elections Chairman Kyle Engelson that Flint's name
would be removed from the ballot for the upcoming election.
Flint, then ASUM President, responded to Engelson's letter
with an email in which he noted ASUM procedures require a
two-thirds vote of the Senate approving Engelson's recommendation,
which would not be possible until the election was
already underway. Flint suggested that Engelson recommend
to the Senate that candidates who violated ASUM election laws not be allowed to take office. After the election was
underway, the ASUM Senate voted to remove Flint from his
Senate seat should he win. Accordingly, after Flint received
enough votes to be elected ASUM Senator, he was denied
office.

Flint filed a complaint in United States District Court on
May 5, 2004, under 42 U.S.C. § 1983 and the First and Fourteenth
Amendments to the United States Constitution, claiming
that the ASUM Bylaws's $100 spending cap on campaign
expenditures was an unconstitutional abridgment of free
speech. Flint sued George Dennison, in his official capacity
as the University president; ASUM; Kyle Engelson, in his
official capacity as ASUM Elections Committee Chair; and
seven ASUM Elections Committee Members in their official
capacities. Flint later filed an amended verified complaint
adding Gale Price, then ASUM President, two ASUM Executive
Officers in their official capacities, and twenty ASUM
Senators in their official capacities (collectively referred to
hereinafter as "defendants").

Flint also filed a motion for a temporary restraining order,
a motion for a preliminary injunction, and a motion to consolidate
the preliminary injunction hearing with the trial on the
merits. The district court denied Flint's motions. Before the
court rendered its judgment as to Flint's motion for preliminary
injunction, defendants filed a motion to dismiss the complaint
under Federal Rules of Civil Procedure 12(b)(1),
12(b)(6) and 12(b)(7). Following the court's denial of a preliminary
injunction, Flint then filed an amended verified complaint
to which the defendants again filed a 12(b)(1) and
12(b)(6) motion to dismiss. Thereupon, the district court
issued an order to show cause regarding additional briefing
and argument. Flint requested further briefing and argument
to resolve the issue as to whether strict scrutiny1 or rational relationship2 applied to test the constitutionality of the campaign
expenditure limitations. Defendants responded that additional
briefing or argument was not needed and suggested that if the
court chose to refer to matters outside the pleadings to resolve
the 12(b) motion, the court should convert it to a Rule 56
motion for summary judgment based on the record developed
in connection with the motion for preliminary injunction. The
district court accepted defendants' suggestion and, applying a
rational relationship standard to the spending cap, issued an
order and opinion granting summary judgment to defendants
on March 28, 2005.

Flint timely appealed that order. He claims that the district
court applied the wrong legal standard in determining the constitutionality
of ASUM's regulations. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.

* * *

Having determined that Flint's claims are not moot, we
now consider whether defendants are entitled to immunity
under the Eleventh Amendment. The Eleventh Amendment
limits § 1983 claims such as Flint's. In Will v. Michigan
Department of State Police, 491 U.S. 58, 70 (1989), the
Supreme Court held that "States or governmental entities that
are considered ‘arms of the State' for Eleventh Amendment
purposes" are not "persons" under § 1983. Moreover, Will
clarified that "a suit against a state official in his or her official
capacity . . . . is no different from a suit against the State
itself." Id. at 71. We have held that a state university is an arm
of the state entitled to Eleventh Amendment immunity. See,
e.g., Armstrong v. Meyers, 964 F.2d 948, 949-50 (9th Cir.
1992) (per curiam). Therefore, state officials sued in their
official capacities, including university officials, are not "persons"
within the meaning of § 1983 and are therefore generally
entitled to Eleventh Amendment immunity.

Will recognized one vital exception to this general rule:
When sued for prospective injunctive relief, a state official in
his official capacity is considered a "person" for § 1983 purposes.
Will, 491 U.S. at 71 n.10 ("Of course a state official in
his or her official capacity, when sued for injunctive relief,
would be a person under § 1983 because ‘official-capacity
actions for prospective relief are not treated as actions against
the State.' " (quoting Kentucky v. Graham, 473 U.S. 159, 167
n.14 (1985))). This exception recognizes the doctrine of Ex
parte Young, 209 U.S. 123 (1908), that a suit for prospective injunctive relief provides a narrow, but well-established,
exception to Eleventh Amendment immunity. See Rounds v.
Or. State Bd. of Higher Educ., 166 F.3d 1032, 1036 (9th Cir.
1999) ("Ex Parte Young provided a narrow exception to Eleventh
Amendment immunity for certain suits seeking declaratory
and injunctive relief against unconstitutional actions
taken by state officers in their official capacities."); Doe v.
Lawrence Livermore Nat'l Lab., 131 F.3d 836, 840 (9th Cir.
1997) ("[T]he Eleventh Amendment allows only prospective
injunctive relief to prevent an ongoing violation of federal
law.").

Flint seeks declaratory and injunctive relief as related to
past violations, namely, ASUM's allegedly unconstitutional
infringement of his right to freedom of speech. However, as
in Doe v. Lawrence Livermore National Laboratory, the relief
Flint seeks is not so limited. In Doe, a contract university
employee sought damages and reinstatement for breach of
contract and a § 1983 violation after an alleged wrongful discharge.
Id. at 837. The district court dismissed both claims as
barred by the Eleventh Amendment, but we reversed the dismissal
of the § 1983 claim, holding that reinstatement constitutes
prospective injunctive relief because a wrongful
discharge is a continuing violation. Id. at 841. Here, the
injunctions Flint seeks as related to past violations serve to
expunge from University records the 2003 censure and 2004
denial of his Senate seat, which actions may cause Flint harm.
Thus, the injunctions sought are not limited merely to past
violations: they serve the purpose of preventing present and
future harm to Flint. Therefore, they cannot be characterized
solely as retroactive injunctive relief and are not barred by the
Eleventh Amendment.4

* * *

The "speech" at issue in this case takes the form of a student
candidate's spending during the election cycle for
ASUM office. Because campaign expenditures implicate a
student candidate's ability to convey his or her message to the
University student body, the expenditures necessarily constitute
"speech" and thus qualify for First Amendment protection.
See Austin v. Mich. Chamber of Commerce, 494 U.S.
652, 657 (1990) ("Certainly, the use of funds to support a
political candidate is ‘speech' . . . ."); Buckley v. Valeo, 424
U.S. 1, 19-20 (1976) (per curiam). There is no dispute in this
case that Buckley and its progeny apply to the limited extent
that they classify the student campaign expenditures as
"speech" worthy of First Amendment protection.

[6] That ASUM campaign expenditures constitute speech is
not, however, the end of the matter. The speech at issue
occurred in the University of Montana student election system,
and, subject to constitutional limitations, government has
the power to control speech in its school election system to
preserve the character of that system. Cornelius v. NAACP
Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800 (1985).
"The existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated
differ depending on the character of the property at
issue." Perry Educ. Ass'n v. Perry Local Educators' Ass'n,
460 U.S. 37, 44 (1983). In Cornelius, the Supreme Court reaffirmed
that when examining government speech limitations,
we are to examine the nature of the restriction: "[T]he Court
has adopted a forum analysis as a means of determining when
the Government's interest in limiting the use of its property
to its intended purpose outweighs the interest of those wishing
to use the property for other purposes." 473 U.S. at 800.5

Here, both parties eschew forum analysis as the proper
framework within which to analyze Flint's claim that the
campaign expenditure limitation violates the First Amendment:
Flint points to Buckley while defendants point to Widmar
v. Vincent, 454 U.S. 263 (1981). We disagree on the one
point upon which the parties agree: their contention that traditional
First Amendment analysis is inapplicable here. To demonstrate
why we disagree, we briefly address each party's
contention.

B.

1.

On the one hand, Flint vigorously asserts that student spending as part of the ASUM election is "political speech"
that may be regulated only subject to strict scrutiny. Flint
equates the ASUM student government to state and national
government: "The role of the ASUM officers is no less important
to society than is that of the Montana state government."
Based on his equation of ASUM student leaders to elected
political officials, Flint contends that Buckley is controlling
and mandates that the ASUM campaign expenditure limitations
be struck down as an unconstitutional limitation on
speech.6

Flint's arguments are unpersuasive. We may not simply
ignore the facts that the campaign expenditure limitations in
this case involved election to student government and that the
expenditures occurred mostly, if not exclusively, on a university
campus. The educational context of a university, the specific
educational purpose of ASUM student government, and
the numerous other limits placed upon student campaigning
distinguish the campaign expenditure limitations in this case
from those in cases such as Buckley, which involved campaigns
for national political office. Furthermore, while ASUM
undoubtedly has an impact on students at the University and
has certain powers to distribute funds among student groups,
it simply does not follow that ASUM is akin to a political
government or that the ASUM election is the equivalent of a
congressional race. The ubiquity with which political government
is present to control facets of our lives is not - thank
Heavens! - replicated by student government in students'
lives.

The University uses ASUM primarily as an educational
tool - a means to educate students on principles of representative
government, parliamentary procedure, political compromise,
and leadership. In contrast to participation in state or
national politics, participation in ASUM student elections is
limited to ASUM-enrolled University students - students
must maintain at least a 2.0 grade point average to run for
office and only students are allowed to vote in the election.
Unlike state and national governments, ASUM is a creature
of the Board of Regents, whose policy calls for ASUM's Constitution
and conditions the validity of the constitution on the
University president's approval. Indeed, ASUM's entire operation
is subject to the Board of Regents' policies and campus
policies.

Thus, given the nature of this student organization and the
environment in which it exists and operates, ASUM student
officeholders are not the equivalent of elected political officeholders.
As the Eleventh Circuit explained in a case dealing
with similar campaign limitations for student government,
"this is a university, whose primary purpose is education, not
electioneering. Constitutional protections must be analyzed
with due regard to that educational purpose, an approach that
has been consistently adopted by the courts." Ala. Student
Party v. Student Gov't Ass'n of the Univ. of Ala., 867 F.2d
1344, 1346 (11th Cir. 1989). We should not apply the principles
of Buckley without first considering whether the university
setting affects our First Amendment analysis. See
Widmar, 454 U.S. at 267 n.5.7

* * *