Flint v. Dennison ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AARON FLINT, 
Plaintiff-Appellant,
v.
GEORGE DENNISON, in his official
capacity as President of the
University of Montana-Missoula
(UMT); ASSOCIATED
STUDENTS OF THE UNIVERSITY OF
MONTANA (ASUM); KYLE
ENGELSON, in his official capacity
as the ASUM Elections
Committee Chair; JUSTIN BAKER;
AVERIEL WOLFF; SOPHIA ALVAREZ; No. 05-35441
ANNA GREEN; KRIS MONSON;
DEREK DUNCAN; KATIE BOECKX, in  D.C. No.
CV-04-00085-DWM
their official capacities as
Elections Commissioners for the OPINION
Associated Students of UMT;
JESSICA ADAM,
Defendants-Appellees,
and
GALE PRICE, President; VINNIE
PAVLISH, ASUM Vice President;
CASSIE MORTON, ASUM Business
Manager, and ex-officio member
of ASUM Senate; BRYCE BENNETT;
ANDREW BISSELL; BRAD CEDERBERG;
TYLER CLAIRMONT; NEZHA
HADDOUCH; SHAWANA HAGEN;

6623
6624 FLINT v. DENNISON
CHRIS HEALOW; ANDREA HELLING; 
DERF JOHNSON; BRITTA PADGHAM;
KIMBERLY PAPPAS; JOSH PETERS;
REBECCA PETTIT; JAKE PIPINICH;
ROSS PROPERI; JON SNODGRASS; 
LESLIE VENETZ; NATHAN ZIEGLER;
CASEY HOGUE, in their official
capacities as ASUM Senators,
Defendant.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
February 5, 2007—Seattle, Washington
Filed June 1, 2007
Before: Susan P. Graber, Richard A. Paez, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea
FLINT v. DENNISON 6627
COUNSEL
James Bopp, Jr., and Jeffrey Gallant, Bopp, Coleson & Bos-
trom, Terre Haute, Indiana, for the plaintiff-appellant.
David Aronofsky, Legal Counsel, The University of Montana,
Missoula, Montana, and Lisa J. Danetz, National Voting
Rights Institute, Boston, Massachusetts, for the defendants-
appellees.
6628 FLINT v. DENNISON
OPINION
BEA, Circuit Judge:
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 Univer-
sity 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 Mon-
tana, 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 Sena-
tor. 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 defen-
dants. The precise question before us is this: Does the Speech
Clause of the First Amendment to the United States Constitu-
tion prohibit a public university from imposing a $100 expen-
diture limit on candidates running for a position in student
government? U.S. Const. amend. I (“Congress shall make no
FLINT v. DENNISON 6629
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 organiza-
tion meet certain requirements. For instance, the student gov-
ernment 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 Mon-
tana. ASUM is a “representative body of the members of the
Association, organized exclusively for educational and non-
profit 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 Mon-
tana 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 Uni-
versity 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
6630 FLINT v. DENNISON
skills to handle the responsibilities that arise in stu-
dent 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 negoti-
ate with administrators over matters such as tuition
and fee increases, and how to draft policies and pri-
orities 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 advi-
sor, for “essentially educational purposes.”
Consistent with its goals of representing the students at the
University and providing students with leadership opportuni-
ties, ASUM allows for the election of three student executives
and twenty student senators. ASUM Const. art. 4, § 1(a) Arti-
cle 7 of the ASUM Constitution and Article 4 of the ASUM
Bylaws impose several procedures and restrictions on the stu-
dent 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 pro-
motes 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 pro-
hibit any door-to-door campaigning in University residence
halls or family housing and condition campaigning in a class-
room on the permission of the professor. Id. § 2.E.
 FLINT v. DENNISON 6631
At issue in the case at bar is the Bylaws’ campaign expen-
diture limitation: $100 for individual candidates for office. Id.
§ 2.G.1-3. The Bylaws require each student candidate to doc-
ument 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 pre-
scribe that all contributions to campaigns come from students;
corporate and political action committee contributions are
prohibited, as are contributions from ASUM-sponsored orga-
nizations. Id. § 2.G.5, I. As a means of enforcing these cam-
paign 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 recom-
mendation, 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
6632 FLINT v. DENNISON
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 Four-
teenth Amendments to the United States Constitution, claim-
ing 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 Execu-
tive 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 consol-
idate 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 prelimi-
nary injunction, defendants filed a motion to dismiss the com-
plaint under Federal Rules of Civil Procedure 12(b)(1),
12(b)(6) and 12(b)(7). Following the court’s denial of a pre-
liminary injunction, Flint then filed an amended verified com-
plaint 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 rela-
1
Under a strict scrutiny analysis, government is required to show that its
regulation of speech “is necessary to serve a compelling state interest and
that it is narrowly drawn to achieve that end.” Perry Educ. Ass’n v. Perry
Local Educators’ Ass’n, 460 U.S. 37, 45 (1983)
FLINT v. DENNISON 6633
tionship2 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 con-
stitutionality of ASUM’s regulations. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
II.
Before turning to the merits of Flint’s appeal, we first con-
sider two threshold issues: whether Flint’s claims are moot as
a result of Flint’s graduation from the University of Montana
and whether the Eleventh Amendment immunizes defendants
from Flint’s suit.
A.
“Article III of the Constitution limits federal-court jurisdic-
tion to ‘Cases’ and ‘Controversies.’ ” Massachusetts v. EPA,
127 S. Ct. 1438, 1452 (2007); see also DaimlerChrysler
Corp. v. Cuno, 126 S. Ct. 1854, 1860-61 (2006) (“If a dispute
is not a proper case or controversy, the courts have no busi-
ness deciding it, or expounding the law in the course of doing
2
Under a rational relationship analysis, government may regulate speech
“as long as the regulation on speech is reasonable and not an effort to sup-
press expression merely because public officials oppose the speaker’s
view.” Id. at 46.
6634 FLINT v. DENNISON
so.”). A case that “has lost its character as a present, live con-
troversy” is moot and no longer presents a case or controversy
amenable to federal court adjudication. Am. Rivers v. Nat’l
Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997);
see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 180 (2000) (explaining that the
mootness doctrine derives from the requirement of an Article
III case or controversy). A cause of action is moot when the
issues “ ‘are no longer “live” or the parties lack a legally cog-
nizable interest in the outcome’ ” of the litigation. City of Erie
v. Pap’s A.M., 529 U.S. 277, 287 (2000) (quoting County of
L.A. v. Davis, 440 U.S. 625, 631 (1979)). Mootness, however,
is a flexible justiciability doctrine that allows review “if there
are present effects that are legally significant.” Jacobus v.
Alaska, 338 F.3d 1095, 1104 (9th Cir. 2003); see also U.S.
Parole Comm’n v. Geraghty, 445 U.S. 388, 400 (1980)
(explaining that the Court’s “cases demonstrate the flexible
character of the Art. III mootness doctrine”). Where a court
retains the ability to “ ‘fashion some form of meaningful
relief’ ” between the parties, an appeal is not moot, and the
court retains jurisdiction. Dream Palace v. County of Mari-
copa, 384 F.3d 990, 1000 (9th Cir. 2004) (quoting In re Pat-
tullo, 271 F.3d 898, 901 (9th Cir. 2001) (order)).
[1] Here, although Flint filed his lawsuit prior to his gradu-
ation, we must consider whether Flint’s 2004 graduation from
the University of Montana renders his cause of action seeking
declaratory and injunctive relief against defendants moot. See
Harper ex rel. Harper v. Poway Unified Sch. Dist., 127 S. Ct.
1484 (2007); Clark v. City of Lakewood, 259 F.3d 996, 1006
(9th Cir. 2001) (“Mootness inquiries . . . require courts to look
to changing circumstances that arise after the complaint is
filed . . . .”). Generally, once a student graduates, he no longer
has a live case or controversy justifying declaratory and
injunctive relief against a school’s action or policy, and his
case is therefore moot. See Doe v. Madison Sch. Dist. No.
321, 177 F.3d 789, 798 (9th Cir. 1999) (en banc). When a stu-
dent’s record contains negative information derived from
FLINT v. DENNISON 6635
allegedly unconstitutional school regulations, however, that
information may jeopardize the student’s future employment
or college career. Hatter v. L.A. City High Sch. Dist., 452 F.2d
673, 674 (9th Cir. 1971). So long as a former student’s record
contains evidence of disciplinary sanctions, and the former
student seeks “an order requiring school officials to expunge
from school records all mention of the disciplinary action,”
the action is not moot. Id.
[2] Here, Flint’s amended complaint sought such an order
of expungement. Flint sued for (1) a declaration that ASUM’s
limitation on campaign expenditures violated his free speech
rights, (2) an injunction preventing ASUM from removing
him from his elected position on the ASUM Senate, and (3)
an injunction ordering ASUM to remove from his record “all
findings, proceedings, recommendations, and actions taken as
a result of” the election code violations. Consequently, despite
Flint’s graduation from the University in 2004, his contro-
versy remains “live” because of his third claim for relief.
Given that mootness, unlike standing, is a flexible justicia-
bility doctrine, see Jacobus, 338 F.3d at 1104, we retain the
ability to grant relief in a legally significant way—to wit,
ordering the expungement from Flint’s record all evidence of
his 2003 censure and the 2004 denial of his ASUM Senate
seat. Such expungement is certainly a “ ‘form of meaningful
relief.’ ” Dream Palace, 384 F.3d at 1000 (quoting Pattullo,
271 F.3d at 901). If we were to determine that Flint’s First
Amendment rights were violated, declaratory relief would
require the University to expunge any and all records of
Flint’s censure and Senate seat denial; therefore, we hold that
Flint’s case is not rendered moot by his graduation.3
3
This case is distinguishable from Students for a Conservative America
v. Greenwood, 378 F.3d 1129 (9th Cir. 2004). There, we found the
expungement exception inapplicable despite the students’ request for
expungement because the university did not keep records of election code
violations. Id. at 1131. There was also no evidence in that case that the
students were censured. In contrast, Flint was censured by ASUM, a
6636 FLINT v. DENNISON
B.
[3] 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 offi-
cial 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 “per-
sons” within the meaning of § 1983 and are therefore gener-
ally entitled to Eleventh Amendment immunity.
[4] 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 pur-
poses. 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
school organization, in 2003 and denied his Senate seat in 2004 as is
memorialized in ASUM Senate Meeting Minutes of April 28, 2004. Fur-
ther evidence includes correspondence memorializing Flint’s violation of
the spending limit in 2004 from Kyle Engelson on behalf of the ASUM
Senate. Furthermore, neither in its briefing nor during oral argument has
the University rebutted Flint’s assertion that it keeps records of Flint’s
2003 censure and 2004 Senate seat denial.
FLINT v. DENNISON 6637
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 Elev-
enth Amendment immunity for certain suits seeking declara-
tory 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.”).
[5] 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 dis-
charge. Id. at 837. The district court dismissed both claims as
barred by the Eleventh Amendment, but we reversed the dis-
missal of the § 1983 claim, holding that reinstatement consti-
tutes 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
4
Because we ultimately hold that ASUM’s campaign expenditure limi-
tations do not violate the First Amendment and therefore affirm the district
court’s grant of summary judgment to all defendants, we need not consider
defendants’ argument that the student defendants are not state actors.
6638 FLINT v. DENNISON
III.
Satisfied that this case presents a live legal controversy and
that the Eleventh Amendment does not bar Flint’s suit against
defendants, we turn to the merits of Flint’s claims. Because
Flint appeals from the district court’s order granting summary
judgment in favor of defendants, we review de novo, viewing
the facts in a light most favorable to Flint and drawing all rea-
sonable inferences in his favor. Scheuring v. Traylor Bros.,
476 F.3d 781, 784 (9th Cir. 2007). Because neither party dis-
putes the relevant facts, our analysis is focused on application
of the correct legal principles to the facts before us. Arakaki
v. Hawaii, 314 F.3d 1091, 1094 (9th Cir. 2002).
A.
The “speech” at issue in this case takes the form of a stu-
dent 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 consti-
tute “speech” and thus qualify for First Amendment protec-
tion. 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 sys-
tem, 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
FLINT v. DENNISON 6639
standard by which limitations upon such a right must be eval-
uated 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 reaf-
firmed 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 Amend-
ment: Flint points to Buckley while defendants point to Wid-
mar v. Vincent, 454 U.S. 263 (1981). We disagree on the one
point upon which the parties agree: their contention that tradi-
tional First Amendment analysis is inapplicable here. To dem-
onstrate why we disagree, we briefly address each party’s
contention.
B.
1.
On the one hand, Flint vigorously asserts that student
5
That the ASUM student election system “is a forum more in a meta-
physical than in a spatial or geographic sense” does not affect our analysis
because the Supreme Court has made clear that forum analysis is equally
applicable to both spatial and metaphysical fora. Rosenberger v. Rector &
Visitors of Univ. of Va., 515 U.S. 819, 830 (1995); see also Cornelius, 473
U.S. at 800-02 (rejecting contention “that a First Amendment forum nec-
essarily consists of tangible government property” in applying forum anal-
ysis to a charitable contribution program); Perry, 460 U.S. at 46-47
(applying forum analysis to a school mail system) As more fully explained
below, when the government opens a forum, such as a student election, the
government retains the ability, within constitutional bounds, to limit the
use of that forum to its intended purposes.
6640 FLINT v. DENNISON
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 impor-
tant 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 limita-
tions 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 univer-
sity campus. The educational context of a university, the spe-
cific 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 cam-
paigns 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 govern-
ment is present to control facets of our lives is not—thank
Heavens!—replicated by student government in students’
lives.
6
In Buckley, the Supreme Court struck down portions of the Federal
Election Campaign Act of 1971 that limited campaign expenditures on
behalf of candidates in federal election campaigns on the ground that such
limitations violated the First Amendment. 424 U.S. at 58-59. The Court
held that the governmental interests advanced in support of expenditure
limitations would need to satisfy strict scrutiny, and did not do so. See id.
at 44-45.”
 FLINT v. DENNISON 6641
The University uses ASUM primarily as an educational
tool—a means to educate students on principles of representa-
tive government, parliamentary procedure, political compro-
mise, 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 Con-
stitution and conditions the validity of the constitution on the
University president’s approval. Indeed, ASUM’s entire oper-
ation 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 office-
holders. 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 princi-
ples of Buckley without first considering whether the univer-
sity setting affects our First Amendment analysis. See
Widmar, 454 U.S. at 267 n.5.7
7
In Welker v. Cicerone, 174 F. Supp. 2d 1055, 1065 (C.D. Cal. 2001),
a district court in our circuit addressed a similar campaign expenditure
limitation on a university campus and held that Buckley was controlling
because the court found no difference between a student election and a
political election: “The court sees no reason to distinguish between apply-
ing Buckley to state political elections and political elections at state uni-
versities.” We see the several differences detailed above between ASUM’s
elections and state and national political elections and therefore have no
trouble making such a distinction.
6642 FLINT v. DENNISON
2.
We likewise disagree with defendants’ position, and that of
the district court, that the university setting dictates that we
must defer to all reasonable decisions imposed on student
speech during the election process rather than first engaging
in a forum analysis. Relying on passages in Widmar that pub-
lic universities have the right to determine “who may teach,
what may be taught, how it shall be taught, and who may be
admitted to study” and the right to “make academic judg-
ments as to how best to allocate scarce resources,” defendants
assert that absent a showing of unreasonableness, the spend-
ing limits are per se constitutional because ASUM is an edu-
cational tool, and the University desires that leadership
opportunities be available to as many students as possible.
454 U.S. at 276 (internal quotation marks omitted). We
should defer, defendants contend, to their judgment in reason-
ably regulating speech regardless whether the regulation
advances the purpose of the forum the University has pro-
vided for the speech.
We do not read the Supreme Court’s cases to require such
deference without first scrutinizing more carefully the nature
of the student election forum and the government’s interest in
limiting speech within that forum. Although the Supreme
Court in Widmar discussed the unique setting of a university
campus, it also stressed that its “cases leave no doubt that the
First Amendment rights of speech and association extend to
the campuses of state universities.” 454 U.S. at 268-69. “The
University’s institutional mission, which it describes as pro-
viding a secular education to its students, does not exempt its
actions from constitutional scrutiny.” Id. at 268 (internal quo-
tation marks and citation omitted). The Court looked to the
nature of the property, explaining that the university in Wid-
mar had “created a forum generally open for use by student
groups” and therefore the university had “assumed an obliga-
tion to justify its discriminations and exclusions under appli-
cable constitutional norms.” Id. at 267.
 FLINT v. DENNISON 6643
[7] The Supreme Court has applied forum analysis in other,
similar cases involving speech limitations on a university
campus. In Rosenberger v. Rector & Visitors of University of
Virginia, 515 U.S. 819, 828-30 (1995), the Supreme Court
characterized a university student fund responsible for mone-
tary reimbursements to student groups as a limited public
forum. The Court then analyzed the student fund’s denial of
distributions to a university student religious group as view-
point discrimination and subjected the denial to traditional
First Amendment scrutiny. Id. at 830-37.8 Likewise, in Board
of Regents of University of Wisconsin System v. Southworth,
529 U.S. 217, 229-35 (2000), the Supreme Court ruled that a
university activity fee charged to students, which fee was used
to facilitate extracurricular student speech, was constitutional
8
Of further relevance in Rosenberger is the Court’s clarification of Wid-
mar. Specifically, the Court explained that Widmar’s language regarding
a university’s freedom to make judgments as to allocation of scarce
resources, language relied on by defendants here, is applicable to the uni-
versity’s own speech, but not to restrictions of third-party speech on a uni-
versity campus:
[In Widmar], in the course of striking down a public university’s
exclusion of religious groups from use of school facilities made
available to all other student groups, we stated: “Nor do we ques-
tion the right of the University to make academic judgments as
to how best to allocate scarce resources.” 454 U.S. at 270. The
quoted language in Widmar was but a proper recognition of the
principle that when the State is the speaker, it may make content-
based choices. . . .
It does not follow, however, and we did not suggest in Wid-
mar, that viewpoint-based restrictions are proper when the Uni-
versity does not itself speak or subsidize transmittal of a message
it favors but instead expends funds to encourage a diversity of
views from private speakers.
515 U.S. at 833-34 (emphasis added). We are presented in this case not
with the speech of the University of Montana but with the speech of stu-
dents involved in campaigning for student government. Here, it is Flint’s
spending of his own money that was regulated, not University funds or
subsidies to Flint. Thus, contrary to defendants’ assertions, Widmar’s ref-
erence to broad deference is not determinative.
6644 FLINT v. DENNISON
so long as the university’s funding support was viewpoint
neutral.
[8] In sum, we conclude that the constitutionality of the
campaign expenditure limitation depends on the nature of the
forum and whether the limitation on speech is a legitimate
exercise of government power in preserving the character of
the forum.9
9
Given that the speech at issue in this case is not “school-sponsored,”
see supra note 8, we need not consider whether the principles of Hazel-
wood School District v. Kuhlmeier, 484 U.S. 260 (1988), apply with full
force in a university setting—a question neither we, see Brown v. Li, 308
F.3d 939, 957 (9th Cir. 2002) (Reinhardt, J., concurring in part and dis-
senting in part), nor the Supreme Court, Hazelwood, 484 U.S. at 273 n.7,
have definitively answered. Our sister circuits are split on the question.
Compare Kincaid v. Gibson, 236 F.3d 342, 352 (6th Cir. 2001) (en banc),
and Student Gov’t Ass’n v. Bd. of Trs. of Univ. of Mass., 868 F.2d 473,
480 n.6 (1st Cir. 1989) (“Hazelwood . . . is not applicable to college news-
papers.”), with Hosty v. Carter, 412 F.3d 731, 734-48 (7th Cir. 2005) (en
banc) (applying Hazelwood to university context), and Ala. Student Party
v. Student Gov’t Ass’n of the Univ. of Ala., 867 F.2d 1344, 1346-47 (11th
Cir. 1989) (same). Hazelwood addressed whether a high school was
required affirmatively to promote particular speech by allowing the
speech’s inclusion in a school newspaper. 484 U.S. at 266-74. Here, we
are presented with student campaign speech in a forum opened by the Uni-
versity. This is a scenario in which the University is not sponsoring, as in
Hazelwood, any of the candidates’ speech but is allowing the campaign-
related speech.
We note that Hazelwood reinforces the conclusion that we must analyze
the ASUM expenditure limitations within the confines of traditional forum
analysis. In Hazelwood, the Supreme Court first determined that the high
school student newspaper at issue was not a public forum for expression
and concluded that in the specific setting of a high school, the school
could “exercis[e] editorial control over the style and content of student
speech in school-sponsored expressive activities so long as their actions
are reasonably related to legitimate pedagogical concerns.” Id. at 273.
Here, the University seeks to avoid the threshold question—namely, what
type of forum is the ASUM election—and asks us to defer to its reason-
able, educational related regulations. As shown, neither the Supreme
Court’s nor this court’s precedents permit such avoidance.
FLINT v. DENNISON 6645
IV.
A.
[9] Although the student campaign expenditures constitute
speech protected by the First Amendment, “[e]ven protected
speech is not equally permissible in all places and at all
times.” Cornelius, 473 U.S. at 799. Indeed, the Supreme
Court has made clear:
Nothing in the Constitution requires the Government
freely to grant access to all who wish to exercise
their right to free speech on every type of Govern-
ment property without regard to the nature of the
property or to the disruption that might be caused by
the speaker’s activities. . . . [T]he Government “no
less than a private owner of property, has power to
preserve the property under its control for the use to
which it is lawfully dedicated . . . .”
Id. at 799-800 (citation omitted) (quoting Greer v. Spock, 424
U.S. 828, 836 (1976); see also Faith Ctr. Church Evangelistic
Ministries v. Glover, 480 F.3d 891, 906-07 (9th Cir. 2007).
Accordingly, we apply a forum analysis to determine when
the government has legitimate interests in restricting the use
of a forum to certain intended purposes that outweigh a speak-
er’s interest in using the forum for a different purposes. Cor-
nelius, 473 U.S. at 800; Faith Ctr., 480 F.3d at 907. “Forum
analysis has traditionally divided government property into
three categories: public fora, designated public fora, and non-
public fora. Once the forum is identified, we determine
whether restrictions on speech are justified by the requisite
standard.” Faith Ctr., 480 F.3d at 907 (citation omitted).
On one end of the fora spectrum lies the traditional public
forum, “places which by long tradition . . . have been devoted
to assembly and debate.” Perry, 460 U.S. at 45; accord Ark.
Educ. Television Comm’n v. Forbes, 523 U.S. 666, 677
6646 FLINT v. DENNISON
(1998). Next on the spectrum is the so-called designated pub-
lic forum, which exists “[w]hen the government intentionally
dedicates its property to expressive conduct.” Faith Ctr., 480
F.3d at 907. A designated public forum cannot exist in the
absence of specific action on the part of the government. Cor-
nelius, 473 U.S. at 802 (“The government does not create a
public forum by inaction or by permitting limited discourse,
but only by intentionally opening a nontraditional public
forum for public discourse.”). A content-based restriction on
speech in a public or designated public forum is subject to
strict scrutiny, requiring the state to show a compelling inter-
est in the restriction that is drawn narrowly to meet that inter-
est. Perry, 460 U.S. at 45. A content-neutral time, place, and
manner restriction is permissible so long as it is “narrowly tai-
lored to serve a significant government interest, and leave[s]
open ample alternative channels of communication.” Id.;
Faith Ctr., 480 F.3d at 907.
At the opposite end of the fora spectrum is the non-public
forum. The non-public forum is “[a]ny public property that is
not by tradition or designation a forum for public communica-
tion.” Faith Ctr., 480 F.3d at 907. We subject speech restric-
tions in a non-public forum to less-exacting judicial scrutiny:
“[A]s long as the regulation on speech is reasonable and not
an effort to suppress expression merely because public offi-
cials oppose the speaker’s view,” the government may pre-
serve the forum for its intended purposes. Perry, 460 U.S. at
46.
[10] The government is not left with only the two options
of maintaining a non-public forum or creating a designated
public forum; if the government chooses to open a non-public
forum, the First Amendment allows the government to open
the non-public forum for limited purposes. The “limited pub-
lic forum is a sub-category of a designated public forum that
‘refer[s] to a type of nonpublic forum that the government has
intentionally opened to certain groups or to certain topics.’ ”
Hopper v. City of Pasco, 241 F.3d 1067, 1074 (9th Cir. 2001)
FLINT v. DENNISON 6647
(alteration in original) (quoting DiLoreto v. Downey Unified
Sch. Dist. Bd. of Educ., 196 F.3d 958, 965 (9th Cir. 1999));
see also Rosenberger, 515 U.S. at 829 (“The necessities of
confining a forum to the limited and legitimate purposes for
which it was created may justify the State in reserving it for
certain groups or for the discussion of certain topics.”). But
“[o]nce [a government] has opened a limited forum, . . . [it]
must respect the lawful boundaries it has itself set.” Rosenber-
ger, 515 U.S. at 829. Specifically, the government “may not
exclude speech where its distinction is not ‘reasonable in light
of the purpose served by the forum,’ ” id. (quoting Cornelius,
473 U.S. at 806), “nor may [the government] discriminate
against speech on the basis of its viewpoint,” id.; see also
Faith Ctr., 480 F.3d at 907; Cogswell v. City of Seattle, 347
F.3d 809, 814 (9th Cir. 2003).
B.
We conclude that the ASUM student election constitutes a
limited public forum. While “the campus of a public univer-
sity, at least for its students, possesses many of the character-
istics of a public forum,” Widmar, 454 U.S. at 267 n.5, the
forum in this case is not the University of Montana campus.
Rather, because Flint challenges the limitations on speech
within the confines of the ASUM election, whether the speech
is delivered on campus or off, the relevant forum is the
ASUM election itself, with its accompanying rules and regula-
tions.10 See Cornelius, 473 U.S. at 801 (“[I]n defining the
forum we have focused on the access sought by the speak-
er.”); DiLoreto, 196 F.3d at 965 (“The relevant forum is
defined by the access sought by the speaker.”). Although the
ASUM election “is a forum more in a metaphysical than in a
10
While the spending limit is found in the ASUM Bylaws, the limitation
is nonetheless one imposed by the government on the forum. The Univer-
sity, as required by Board of Regents policy, has established ASUM as the
associated student organization on the campus. Neither party disputes that
the forum and the associated limitations are attributable to the University.
6648 FLINT v. DENNISON
spatial or geographic sense,” the forum analysis outlined
above is equally applicable. Rosenberger, 515 U.S. at 830;
see supra note 5.
The ASUM election is not a traditional public forum:
unlike parks and streets, it has not “by long tradition or by
government fiat” been “devoted to assembly and debate.”
Perry, 460 U.S. at 45; see also Forbes, 523 U.S. at 678 (“The
Court has rejected the view that the traditional public forum
status extends beyond its historic confines . . . .”).
The ASUM election also is not a designated public forum.
“To create a forum of this type, the government must intend
to make the property generally available to a class of speak-
ers.” Forbes, 523 U.S. at 678 (internal quotation marks and
citation omitted). “[G]overnment does not create a public
forum by inaction or by permitting limited discourse, but only
by intentionally opening a nontraditional forum for public dis-
course.” Cornelius, 473 U.S. at 802 (emphasis added); see
also Planned Parenthood of S. Nev., Inc. v. Clark County Sch.
Dist., 941 F.2d 817, 822 & n.5 (9th Cir. 1991) (en banc).
Here, the ASUM election provides for the selection of stu-
dents to govern student affairs; the election does not provide
University installations for outsiders to showcase ideas in gener-
al.11 Thus, the ASUM election exists to allow campaigns for
11
This is in contrast to Widmar, where the state university had “created
a forum generally open for use by student groups,” 454 U.S. at 267, by
“routinely provid[ing] University facilities for the meetings of registered
organizations,” id. at 265. The ASUM election is akin, rather, to the forum
in Perry. There, the Supreme Court rejected the contention that a school
mail system was a designated public forum because “there [was] no indi-
cation in the record that the school mailboxes and interschool delivery sys-
tem are open for use by the general public.” 460 U.S. at 47; see also
Forbes, 523 U.S. at 680 (holding that a candidate debate was not a desig-
nated public forum because the station broadcasting the debate “reserved
eligibility for participation in the debate to candidates” and made “deter-
minations as to which of the eligible candidates would participate in the
debate”).
FLINT v. DENNISON 6649
student office and to elect student representatives to ASUM
leadership positions in order to provide student candidates a
valuable educational experience. The ASUM Bylaws define
campaigning “as any activity which directly or indirectly pro-
motes the candidacy of one or more individuals for an office,”
including a candidate’s personal appearances, the posting or
publishing of advertisements, distribution of literature, lobby-
ing voters, and the buying of votes with money, gifts, or alco-
hol. ASUM Bylaws art. V, § 2.A. While the Bylaws do not
limit the content of campaign speech, the Bylaws certainly do
not permit students or the general public to use the ASUM
election system indiscriminately. See Perry, 460 U.S. at 47.
Thus, a careful review of the ASUM Constitution and the
ASUM Bylaws shows the University’s purpose of opening a
limited public forum, in the form of the ASUM elections. See
Faith Ctr., 480 F.3d at 908 n.8 (“A limited public forum is a
sub-category of the designated public forum, where the gov-
ernment opens a nonpublic forum but reserves access to it for
only certain groups or categories of speech.”); Hopper, 241
F.3d at 1074 (same); DiLoreto, 196 F.3d at 965 (same); see
also Rosenberger, 515 U.S. at 829; Ala. Student Party, 867
F.2d at 1353 (Tjoflat, J., dissenting) (noting that regulations
governing campaigns for student government at a university
created a limited public forum). For example, a student’s abil-
ity to participate in the forum as a candidate is selective and
the standards are clear. To run for office, a student must be
registered for seven or more credits during the fall and spring
semesters, pay a student activity fee, and maintain at least a
2.0 cumulative grade point average. ASUM Const. art. 7, § 1.
Only students registered for at least one credit are allowed to
vote in the ASUM election. Id.
Furthermore, unmistakably clear standards govern cam-
paigning within the forum. Under the ASUM Bylaws, cam-
paign materials may be displayed only after the official
campaigning period begins. Id. § 2.B. The Bylaws prohibit
any door-to-door campaigning in University residence halls or
6650 FLINT v. DENNISON
family housing. Campaign speech may occur in a classroom
only with the consent of the professor. Id. § 2.E. Posters may
be placed in residence halls only with the approval of the resi-
dence hall office and in the University Center only with the
approval of the University Center office. Id. § 2.F.2, 3. On the
University campus itself, campaign materials may be posted
only on kiosks. Id. § 2.F.4. And, of course, student candidates
are not allowed to spend more than $100 promoting their
campaign. There is nothing in the ASUM Constitution or
Bylaws, or the record before us, to suggest that these limita-
tions, save the expenditure limitation, do not apply equally to
all who participate in a student campaign, candidates and non-
candidates alike. There is also no dispute that the University,
through ASUM, applies these policies consistently. The
spending limits have been in place since 1970, and Defendant
Gale Price, who ran on a ticket with Flint in the 2003 election,
was censured along with Flint for violating the spending lim-
its. See Hopper, 241 F.3d at 1076 (“[C]onsistency in applica-
tion is the hallmark of any policy designed to preserve the
non-public status of a forum.”).
[11] In summary, the restrictions on who may participate as
a candidate or voter, and the regulations of the manner in
which the campaign is conducted, together demonstrate that
the ASUM election constitutes a limited public forum. This
forum exists solely to allow campaigns for ASUM student
office and the election of student representatives, thereby pro-
viding an educational experience for the student candidates
and student voters.
C.
[12] We now apply this framework to analyze the constitu-
tionality of the campaign expenditure limitation. We must
analyze whether the expenditure limitation is viewpoint neu-
tral and reasonable given the purposes of the forum. Rosen-
berger, 515 U.S. at 829; Faith Ctr., 480 F.3d at 907;
Cogswell, 347 F.3d at 814. Because government “must
FLINT v. DENNISON 6651
respect the lawful boundaries it has itself set” in opening a
limited public forum, any restriction on speech which is not
viewpoint neutral or is unreasonable, fails constitutional scru-
tiny. Rosenberger, 515 U.S. at 829.
1.
Viewpoint neutrality is the requirement that government
not favor one speaker’s message over another’s regarding the
same topic. When “government has excluded perspectives on
a subject matter otherwise permitted by the forum,” the gov-
ernment is discriminating on the basis of viewpoint. Faith
Ctr., 480 F.3d at 912. If certain speech “fall[s] within an
acceptable subject matter otherwise included in the forum, the
State may not legitimately exclude it from the forum based on
the viewpoint of the speaker.” Cogswell, 347 F.3d at 815. The
Supreme Court has been clear that viewpoint discrimination
occurs when the government “denies access to a speaker
solely to suppress the point of view he espouses on an other-
wise includible subject.” Cornelius, 473 U.S. at 806 (empha-
sis added); see also Sammartano v. First Judicial Dist. Court,
303 F.3d 959, 971 (9th Cir. 2002) (recognizing that “where
the government is plainly motivated by the nature of the mes-
sage rather than the limitations of the forum or a specific risk
within that forum, it is regulating a viewpoint”). “Discrimina-
tion against speech because of its message is presumed to be
unconstitutional.” Rosenberger, 515 U.S. at 828.
[13] There is no dispute in this case that the spending limit
applies equally to all ASUM student candidates, as do all
other campaign restrictions. The district court was presented
no evidence showing that the University, through the spend-
ing limit, is attempting to suppress a particular point of view
in the context of the ASUM election. Conversely, as evi-
denced by Gale Price’s censure, the record demonstrates that
the spending limit is applied equally to all student candidates,
regardless of their views.
6652 FLINT v. DENNISON
This case stands in contrast to Rosenberger and Good News
Club v. Milford Central School, 533 U.S. 98, 107-08 (2001),
both of which involved viewpoint discrimination in a limited
public forum. In Rosenberger, the Supreme Court found that
by excluding funding to a student religious group solely
because the religious group promoted a particular religious
perspective, the university was discriminating in a limited
public forum on the basis of that group’s viewpoint. 515 U.S.
at 829-37. Examining this holding in Faith Center, we
explained that, “[b]ecause other student publications were free
to discuss the topic of religion from a myriad of views other
than the prohibited perspective, the University had discrimi-
nated on the basis of viewpoint.” 480 F.3d at 913. Similarly,
in Good News Club, the Supreme Court found viewpoint dis-
crimination where a public school excluded a Christian club
from meeting on the school’s grounds while permitting nonre-
ligious groups to meet at the school. 533 U.S. at 107-09. The
religious club sought only “to address a subject otherwise per-
mitted [in] the [limited public forum], the teaching of morals
and character, from a religious standpoint.” Id. at 109. Thus,
exclusion of the religious group from the forum amounted to
impermissible viewpoint discrimination.
[14] Here, no evidence suggests that the University’s desire
to limit student candidate spending results from a desire to
suppress any student’s viewpoint or that the limitation in any
way suppresses a particular candidate’s viewpoint. The $100
limit does not apply solely to vegetarians, pacifists and Marx-
ists, but not to meat-eaters, bellicists and fascists. Neither
does the limit apply to candidates who might wish to abolish
student government or at least intercollegiate athletics, but not
to servile apple-polishers of the status quo or “jocks.” Thus,
the campaign expenditure limitation does not constitute view-
point discrimination.
Flint’s contentions do not persuade us to hold otherwise.
Flint argues that the campaign expenditure limitation consti-
tutes viewpoint discrimination because the limitation
FLINT v. DENNISON 6653
“[a]llow[s] noncandidate students, student associations and
outside groups . . . to speak with unlimited volume while lim-
iting candidate speech.”
The candidate/non-candidate distinction, however, is based
on the status of the speaker, not on the speaker’s viewpoint.
The Supreme Court has held that in a non-public (or limited
public) forum the government may “make distinctions in
access on the basis of subject matter and speaker identity.”
Perry, 460 U.S. at 49 (holding that allowing different access
based on the status of one union as the exclusive representa-
tive for the school district was not viewpoint discrimination
because it distinguished based upon status, not particular
views) (emphasis added); see also Ariz. Right to Life Political
Action Comm. v. Bayless, 320 F.3d 1002, 1009-10 (9th Cir.
2003) (noting that a statute restricting the political speech of
Political Action Committees but not candidates or other par-
ticipants did not discriminate by viewpoint). Here, the spend-
ing limit is directed at the student candidates because they are
the focus of the forum’s purpose. Whether such focus is rea-
sonable to achieve that purpose is our next inquiry.
2.
[15] We are also satisfied that the candidate spending limit
is reasonable. The reasonableness inquiry “focuses on
whether the limitation is consistent with preserving the prop-
erty [here the ASUM election] for the purpose to which it is
dedicated.” DiLoreto, 196 F.3d at 967; see also Perry, 460
U.S. at 50-51. Reasonableness is not the legal equivalent of
narrow tailoring or least restrictive means; indeed, the govern-
ment’s chosen method to preserve the character of a limited
public forum “need not be the most reasonable or the only
reasonable limitation.” Cornelius, 473 U.S. at 808; accord
Cogswell, 347 F.3d at 817 (“[T]here is no requirement that a
restriction in a limited public forum be narrowly tailored or
the government’s interest be compelling for a restriction to be
reasonable.”). So long as the government can reasonably jus-
6654 FLINT v. DENNISON
tify its regulation on speech in the limited public forum in
light of the purposes of the forum, the regulation passes con-
stitutional muster.
[16] Since its inception, ASUM has been subject to the
University of Montana’s educational mission. ASUM’s fac-
ulty advisor explained that ASUM exists for “essentially edu-
cational purposes.” ASUM’s Constitution declares that
ASUM is “organized exclusively for educational and non-
profit purposes.” ASUM Const. art. II, § 1. The election of
student representatives to ASUM leadership positions is
designed to help further the educational purpose of ASUM.
The evidence before us clearly shows that the University
views the spending limitation as vital to maintain the charac-
ter of ASUM and its election process as an educational tool,
rather than an ordinary political exercise. ASUM’s senior fac-
ulty advisor explained that the spending limit was adopted in
the revised ASUM Constitution of 1969-1970 “as a measure
intended to defend ASUM against being steered away from its
properly educational goals.” The “primary intent” of the
spending limits is “to prevent student government’s being
diverted by interests other than ones educational.” It is thus
obvious that the purpose of imposing the spending limit on
student candidates is to serve pedagogical interests in educat-
ing student leaders at the University.
We find that the spending limits reasonably serve this peda-
gogical aim. ASUM exists to teach students responsible lead-
ership and behavior. Imposing limits on candidate spending
requires student candidates to focus on desirable qualities
such as the art of persuasion, public speaking, and answering
questions face-to-face with one’s potential constituents. Stu-
dents are forced to campaign personally, wearing out their
sho-leather rather than wearing out a parent’s—or an activist
organization’s—pocketbook. Our conclusion is supported by
the declaration of Gale Price, former ASUM President:
Unlimited spending in ASUM elections also would
change the nature of the election process as a learn-
FLINT v. DENNISON 6655
ing experience. The spending limits mean that stu-
dents have to figure out no-cost or low-cost ways of
campaigning. They have to plan ahead to figure out
their strategy, rather than just dumping a lot of
money into advertising materials at the last minute.
They have to make decisions about allocating their
resources effectively. Without spending limits, the
well-off students would not have to face these con-
straints or make these kinds of decisions in the
course of running for ASUM.
The spending limitation is thus consistent with the purpose of
the limited public forum in providing student leaders an edu-
cational experience as they campaign for, and are elected to,
student government. See DiLoreto, 196 F.3d at 967.12
[17] Furthermore, it is reasonable for the University to con-
fine this spending limitation to student candidates. Because
the purpose of ASUM is to provide an educational experience
to those students who actively participate in the organization,
it is reasonable for the University to limit the campaign
expenditure limitation to student candidates. In Perry, where
several teacher unions received different levels of access to a
12
Flint contends that the expenditure limitation teaches students “that
the First Amendment doesn’t protect political speech [and] how not to
conduct elections in a free society.” Aside from its obvious hyperbole, this
argument is not persuasive. So long as the purported educational goal of
the expenditure limitation—here, a lesson in strategy, campaigning, and
leadership—is reasonably capable of fruition, any additional “lessons” that
students like Flint might learn do not affect the reasonableness, and thus
the constitutionality, of ASUM’s regulations. Furthermore, nothing in the
First Amendment requires universities to set up student elections to mimic
exactly political elections and political fund-raising. It is beyond dispute
that government may impose reasonable, viewpoint neutral restrictions
even on pure political speech in limited public forums. See Ark. Educ.
Television Comm’n v. Forbes, 523 U.S. 666, 678-83 (1998); Cogswell,
347 F.3d at 814-18 (finding voter pamphlets a limited public forum and
holding that a limitation on candidate’s statements in voter pamphlets is
viewpoint neutral and reasonable in light of the purpose of the forum).
6656 FLINT v. DENNISON
limited public forum, the Supreme Court explained that “[t]he
differential access provided [the teacher unions] is reasonable
because it is wholly consistent with the district’s legitimate
interest in ‘preserv[ing] the property . . . for the use to which
it is lawfully dedicated.’ ” 460 U.S. at 50-51 (alterations in
original) (quoting U.S. Postal Serv. v. Council of Greenburgh
Civic Ass’ns, 453 U.S. 114, 129-30 (1981)). Here too, apply-
ing the spending limitation only to candidates helps preserve
the nature of the ASUM election as an educational experience
for those students actively participating therein. Even if not
the best or most effective means of providing the student can-
didates the educational experience that the University seeks to
provide through the ASUM elections, we are confident the
spending limits reasonably serve the purpose of the forum.
See Cornelius, 473 U.S. at 808. In a limited public forum, the
First Amendment requires nothing more.
V.
[18] By creating a student election process, the University
of Montana has opened a limited public forum dedicated to
allow campaigning for and election to leadership positions in
student government. The University’s purpose in opening
such a forum is to provide student candidates and student vot-
ers a certain type of educational experience. We hold that
imposing an expenditure limitation on student candidates is
viewpoint neutral and serves to effectuate the purpose of the
ASUM elections. We therefore affirm the district court’s sum-
mary judgment in favor of defendants.
AFFIRMED.