Flint v. Dennison

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.