Petition for Writ of Certiorari — Southern Christian Leadership Conference v. Supreme Court of Louisiana
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No.01-- O1%1 360 aug 27 2009
IN THE OFFICE OF THE CLERK
Supreme Court of the United States
SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE,
LOUISIANA CHAPTER; ST. JAMES CITIZENS FOR JOBS &
THE ENVIRONMENT; CALCASIEU LEAGUE FOR
ENVIRONMENTAL ACTION NOW; HOLY CROSS
NEIGHBORHOOD ASSOCIATION; FISHERMEN & CONCERNED
CITIZENS’ ASSOCIATION OF PLAQUEMINES PARISH;
ST. THOMAS RESIDENTS COUNCIL; LOUISIANA
ENVIRONMENTAL ACTION NETWORK; LOUISIANA
ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR
REFORM NOW; NORTH BATON ROUGE ENVIRONMENTAL
ASSOCIATION; LOUISIANA COMMUNITIES UNITED; ROBERT
KUEHN; CHRISTOPHER GOBERT; ELIZABETH E. TEEL; JANE
JOHNSON; WILLIAM P. QUIGLEY; TULANE ENVIRONMENTAL
LAW SOCIETY; TULANE UNIVERSITY GRADUATE AND
PROFESSIONAL STUDENT ASSOCIATION; INGA HAAGENSON
CAUSEY; CAROLYN DELIZIA and DANA HANAMAN,
. Petitioners,
v.
SUPREME COURT OF THE STATE OF LOUISIANA,
Respondent.
On PETITION FOR A Writ OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
David S. UDELL
Counsel of Record
BRENNAN CENTER FOR JUSTICE
AT NYU Scuoo i oF LAw
PauL K. SONN 161 Avenue of the Americas
Burt NEUBORNE Twelfth Floor
E. JOSHUA ROSENKRANZ New York, NY 10013
Puitiep G. GALLAGHER (212) 998-6730
Attorneys for Petitioners
(Additional Attorneys Listed on Inside Cover)
168988 g
COUNSEL PRESS
(800) 274-3321 + (800) 359-6859
JupitH L. MoGuL
18 Wyndham Road
Scarsdale, NY 10583
Mary E. Howe.
HowE._ & SNEAD
316 South Dorgenois Street
New Orleans, LA 70119
MARJORIE R. ESMAN
701 South Peters Street
Suite 100
New Orleans, LA 70130
ii amici anata.
i
QUESTIONS PRESENTED
1. Does the First Amendment forbid a state court from
promulgating purportedly neutral rules governing student law
practice that are openly designed to suppress the presentation
of disfavored viewpoints to the judiciary?
2. May areviewing court consider a state body’s motive
_ when determining whether promulgation of purportedly
neutral rules openly designed to suppress the presentation
of disfavored viewpoints violates the First Amendment?
3. Does the First Amendment forbid a state from barring
qualified law students enrolled in faculty-supervised clinics
operated by private law schools from appearing in litigation
brought by the clinic if any clinic student or supervising
faculty member played a role in notifying prospective clients
of their legal rights and offering them assistance?
4. Does the First Amendment forbid a state from
conditioning authorization to engage in faculty-supervised
student law practice on a coerced waiver of the speech rights
of student practitioners, faculty supervisors, and potential
clients?
5. Does the First Amendment forbid a state from
dictating the nature of the clients to whom faculty-supervised
law clinics operated by private law schools may offer their
services on a pro bono basis?
ul
TABLE OF CONTENTS
k Page
Questions Presented ........----+-+eeeeereees i
Table of Contents ..........-0e cece eee ee ees il
Table of Cited Authorities .........---++eee ees iv
Table of Appendices .........--- sees eeeerees Vill
Opinions Below .......--.---eeeeeeeereeteees l
Statement of Jurisdiction ..........--++eeeeee l
Constitutional Provisions, Statutes and Rules
rere rrr l
Statement of the Case ......... 2. eee eee ee eee 2
A. Statement of Facts ..........--0:eeeeeees 2
B. The Proceedings Below .......---+++++: 6
Reasons for Granting the Petition .......--.++-: 9
I. The Core of the First Amendment is an
Absolute Ban on Governmental Viewpoint
Discrimination. As the Restrictive Rules at
Issue Here Were Motivated By a Desire to
Silence a Particular Viewpoint, the Court
Should Clarify the Circumstances Under
Which Courts Must Consider Viewpoint
Suppressive Motive in Determining Whether
a Purportedly Neutral Rule Violates the First
Ammen. . oc5 a isc cknens eee neeersas 9
iil
| Contents
Page
A. This Court Has Not Articulated A
Standard for When Motive Inquiry
is Appropriate in Assessing the
Constitutionality of a Purportedly
Neutral Rule Limiting First Amendment
DE htsubinedssccurdewaeskasne 10
B. The Fifth Circuit Erred in Finding that
the Louisiana Supreme Court’s Motive
to Suppress Disfavored Speech was
Irrelevant to Plaintiffs’ Viewpoint
Discrimination Claim. .............. 15
II. The Court Should Clarify How the First
Amendment Unconstitutional Conditions
Doctrine Applies to Efforts to Restrict
Student Practice in Faculty-Supervised
Clinics Operated and Maintained by Private
Law Schools. Participants in Law School
Clinics May Not Be Compelled to Sacrifice
Fundamental Free Speech Rights in Order to
Represent Clients Under Appropriate Faculty
ee cc eLeeyecdeakeasns 19
Ill. The Court Should Clarify Whether Rules
That Significantly Burden Efforts by
Participants in Law School Clinics to Inform
Persons of Their Legal Rights Are Subject
to Exacting First Amendment Scrutiny. ... 24
EEE GS I a a a 29
iv
TABLE OF CITED AUTHORITIES
Page
Cases:
Application of Thom for Approval of Incorporation
of Lambda Legal Defense & Educ. Fund, Inc., 301
N.E.2d $42 (N.Y. 1973) ......2ccccccscceees 23
Bates v. State Bar of Ariz., 433 U.S. 350(1977) .. 25
Board of Educ. v. Pico, 457 U.S. 853 (1982) ....... 11,12
Buckley v. Valeo, 424 U.S. 1 (1976) ......------ 26
Church of Lukumi Babalu Aye, Inc. v. City of .
Hialeah, 508 U.S. 520 (1993) .......----+5-: 13
City of Cleburne v. Cleburne Living Ctr., Inc., 473
CS MCI conc cba cesusicnenseeusneess 26
City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) .. 14
Cornelius v. NAACP Legal Defense and Educ. Fund,
Inc., 473 U.S. 788 (1985) ........----- 11, 16, 17, 18
Edwards v. Aguillard, 482 U.S. 578 (1987) ...13, 17, 18
Epperson v. Arkansas, 393 U.S. 97 (1968) ......- 13
Families Achieving Indep. & Respect v. Nebraska
Dep't of Social Servs., 111 F.3d 1408 (8th Cir.
MOTE vcncckaws conden rans nceasennseenan 15
Vv
Cited Authorities
Finley v. National Endowment for the Arts, 524 U.S.
| eer eer re yr ie 19
Grosjean v. American Press Co., Inc., 297 U.S. 233
GRNOE a0 did oneekatiessedesse eee 12
Grossbaum v. Indianapolis-Marion County Bldg.
Authority, 100 F.3d 1287 (7th Cir. 1996), cert.
Getad, HOUR. AEROS ni accskcssdenes 14
In re New Hampshire Disabilities Rights Ctr., Inc.,
S58 ADE Bee ae NOEE 2s ceanencnenecnees 23
In re Primus, 436 U.S. 412 (1978) ..... 5, 24, 25, 26, 27
in ve Solar, GOL U.S. ZS CISTI} iv avcccaasacaess 22
Legal Servs. Corp. v. Velazquez, 121 S. Ct. 1043
SED a bskewes bab phase nies 19, 20, 21
Magsino v. Gridiron Constr. Co., No. 99-6002
(Parish of Orleans Civil Dist. Ct., Div. “B”) ... 6
McCray v. United States, 195 U.S. 27 (1904) ..... 14
Middlesex County Ethics Comm. v. Garden State Bar
dae, 43 US. 423 CAGES) | 6 hv svalsatevecess 21
_ Minneapolis Star & Tribune Co. v. Minnesota
Comm 'r of Revenue, 460 U.S. 575 (1983) ..... 12
vi
Cited Authorities
Page
NAACP v. Button, 371 U.S. 415 (1963) ..... 5, 24, 25, 26
NAACP vy. State of Alabama, ex rel. Patterson, 357
UB. GAD CUSSED 0c cnccctencssecbccveseecesss 25
Palmer v. Thompson, 403 U.S. 217 (1971) ....... 14 |
Perry Educ. Ass'n v. Perry Local Educators’ Ass'n,
460 U.S. 37 CRSGS) ccccccscccccdecacsses 12, 13, 16
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ... 9
Rosenberger v. Rector and Visitors of the Univ. of
Va., S1S UZ. SID CIGSS) .ccccccccssccess 16, 19, 20
Rust v. Sullivan, 500 U.S. 173 (1991) ........... 19, 20
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290
CROIDD oc cccccccccebecsuccddocsascbeseuave 13
Shelton v. Tucker, 364 U.S. 479 (1960) .......... 22
South Carolina Educ. Ass'n v. Campbell, 883 F.2d
1251 (4th Cir. 1989), cert. denied, 493 U.S. 1077
CEGOED on cv ccccccvccsaceceiuvenatecueuneses 14, 15
State of Arizona v. State of California, 283 U.S. 423
CIGBED 6 0c oncccccncdanctuhaeed aa uvesesees 14
Tovar v. Billmeyer, 721 F.2d 1260 (9th Cir. 1983)
vii
Cited Authorities
Page
United States v. O'Brien, 391 U.S. 367 (1968) ....13, 14
Village of Schaumberg v. Citizens for a Better
Env 't, 444 U.S. 620 (1980) ................. 1]
Wallace v. Jaffree, 472 U.S. 38 (1985) .......... 17
United States Constitution:
Pas I 6 wan a CuRH ES 046 EKh 005 005S8 passim
Statute:
Se es 1 ROUEED os dca snewaKeteus cueneees l
Rules:
aA. . OF Paar. Cosme. S50) .cccccscccsccccces 27
St GU CAEN hn vc ccheccasecuéncaeuadys 27
Mp EE bb pk cNababutesetdsccenaes passim
Other Authorities:
William Glaberson, Hazy Legal Terrain: Museum
Fight Pits Free Expression Against Control of
Public Spending, N.Y. Times, Sept. 30, 1999 ... 19
Economic Freedom Law Clinic at the George Mason
University School of Law, available at http://
www.wilf.org/Litigating/econfreedom.asp ..... 24
vill
TABLE OF APPENDICES
: Page
Appendix A — Opinion Of The United States Court
Of Appeals For The Fifth Circuit Dated May 29,
eer ere yere TeTTTT etree la
Appendix B — Order And Reasons Of The United
States District Court For The Eastern District Of
. Louisiana Dated July 27, 1999 ............... 30a
Appendix C — Rule Involved ................. 63a
Appendix D — Complaint Dated April 16,1999 .. 72a
|
Plaintiff-petitioners Southern Christian Leadership
Conference, et al. respectfully petition for a writ of certiorari
to review the judgment of the United States Court of Appeals
for the Fifth Circuit in this case.
OPINIONS BELOW
The opinion of the district court, dated July 27, 1999,
granting defendant the Louisiana Supreme Court’s motion
to dismiss the complaint for failure to state a claim is reported
at Southern Christian Leadership Conference v. Supreme
Court of the State of Louisiana, 61 F. Supp. 2d 499 (E.D.
La. 1999). The opinion of the United States Court of Appeals
for the Fifth Circuit, filed May 29, 2001, affirming the
decision of the District Court granting defendant’s motion
to dismiss is reported at Southern Christian Leadership
Conference v. Supreme Court of the State of Louisiana, 252
F.3d 781 (Sth Cir. 2001). These opinions are reproduced in
the Appendix to this Petition for Writ of Certiorari as
Appendices A and B.
STATEMENT OF JURISDICTION
The Fifth Circuit entered its judgment on May 29, 2001.
This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISIONS, STATUTES
AND RULES INVOLVED
The following constitutional provisions, statutes and
regulations are involved in this case:
1. United States Constitution, Amendment I; and
2. Rule XX of the Rules of Supreme Court of
Louisiana (Apr. 15, 1999) (App. C at 63a-7 1a).
2
STATEMENT OF THE CASE
A. Statement of Facts
In 1999, after nearly thirty years of permitting Louisiana
law students to represent disadvantaged parties under faculty
supervision through law school clinical programs, the
Louisiana Supreme Court amended its student practice rules
in an open effort to silence vigorous advocacy on behalf of
clients whose health and environmental safety are threatened
by efforts to locate noxious industrial plants in poor
neighborhoods.
In 1971, the Louisiana Supreme Court adopted Rule XX,
which authorized law students to represent clients on a pro
bono basis under faculty supervision in the context of law
school clinics. See La. Sup. Ct. R. XX (1971). The Rule had
as its stated purposes to “provid[e] assistance to clients
unable to pay for such services and to encourage law schools
to provide clinical instruction in trial work of varying kinds.”
Id. § 1. In 1988, the Louisiana Supreme Court amended Rule
XX to authorize law students to represent community
organizations, as well as individuals. See La. Sup. Cr. R.
XX (1988).
In 1996 and 1997, the Tulane Environmental Law Clinic
(TELC) successfully represented a community group and
local residents in St. James Parish, Louisiana in opposing a
proposal by the Shintech Corporation to construct a chemical
plant in their community. The planned facility would have
released an additional 1.5 million tons of pollution (some of
it carcinogenic) each year into the surrounding air. Compl.
qq 23-27 (App. D at 91a-94a).
TELC’s successful representation of these clients in the
Shintech matter provoked a barrage of criticism from
no ae
3
powerful political and business figures in Louisiana. These
forces launched a concerted campaign to prevent TELC and
other law school clinics from continuing to represent
disadvantaged communities in Louisiana seeking to raise
environmental and health concerns. Compl. ¥ 28 (App. D at
94a). Louisiana Governor Murphy J. “Mike” Foster called the
President of Tulane University to complain about TELC, Compl.
4] 28 (App. D at 94a); urged business leaders to withhold their
support for Tulane University until it reined in TELC, Compl.
{29 (App. D at 94a); and suggested that the Louisiana
legislature should consider stripping Tulane of its tax-exempt
status in retaliation for TELC’s activities. Other high state
officials joined the attack on TELC, including the Secretary of
the Louisiana Department of Economic Development, who
vilified TELC and its community group clients as
“environmental fascists” who used “brown-shirt tactics.”
Compl. {J 35-36 (App. D at 96a-97a).
When these attempts at direct pressure on Tulane failed,
the political and business interests turned to the elected
Louisiana Supreme Court, launching a heavy-handed political
campaign to urge the court to limit student law practice, and
specifically demanding that law school clinics be restricted from
representing community groups and from engaging in legal
outreach of the sort that public interest organizations routinely
conduct. Compl. ff 29-49 (App. D at 94a-104a). Not shy about
declaring that their displeasure with TELC and its clients arose
from the viewpoints they were voicing, major industry trade
associations filed a complaint with the Louisiana Supreme Court
charging that TELC’s actions hurt Louisiana business and urging
the court to investigate the positions advocated by TELC and
to restrict its activities. Compl. FJ 31, 33 (App. D at 95a-96a).
The business community exerted pressure on the Louisiana
Supreme Court not only from the outside, but from within the
4
courthouse as well. Supreme Court of Louisiana Deputy
Judicial Administrator Kim Sport served as the court’s public
liaison and was one of its initial investigators of the complaint
concerning TELC and its clients. Simultaneously, however,
she served as an officer with the New Orleans Chamber of
Commerce, one of the major trade associations lobbying the
Louisiana Supreme Court to limit the activities of TELC and
the other law school clinics. Compl. 4 34 (App. D at 96a).
Responding to this mounting political pressure, the
Louisiana Supreme Court launched an official investigation
into the activities of TELC and Louisiana’s other law school
clinics. Compl. Jf 41, 43 (App. D at 99a-100a). The court
has never made public the results of that investigation.
However, two of its members, including the Chief Justice,
have disclosed that the investigation reveaied no evidence
that the student practice rules had been violated; that student
practitioners at any Louisiana law school clinic had engaged
in unethical or inappropriate conduct; or that any clinic had
represented clients capable of affording private legal counsel.
Compl. ff 45, 46 (App. D at 101a-102a).
Despite the results of its own internal investigation, the
Louisiana Supreme Court succumbed to the campaign to
silence the law school clinics, sharply curtailing their
activities in a transparent effort to prevent additional
environmental litigation. The March 30, 1999 amendments
(denominated as the Rule XX amendments),' imposed
significant new restrictions on the ability of community
groups in Louisiana to obtain assistance from law clinic
students — historically one of the few sources of legal aid
1. The text of the amended Rule XX is set forth as Appendix
C at pages 63a-7 1a.
ee tte
5
for community organizations in Louisiana unable to afford
private counsel. Compl. 4 56 (App. D at 107a).
First, the Rule XX amendments added an “anti-
solicitation” provision designed to cut law school clinics off
from the poor communities they had served. Notwithstanding
this Court’s teaching that the First Amendment guarantees
freedom to pursue public education about legal rights
accompanied by offers of pro bono legal assistance,
see In re Primus, 436 U.S. 412 (1978), and NAACP v. Button,
371 U.S. 415 (1963), the amended rule bars clinical law
students from representing clients on any matter that was
the subject of community legal education by anyone
associated with the clinic — whether licensed clinic lawyers,
other clinic staff, or students. See La. Sup. Cr. R. XX § 10
(1999) (App. C at 70a). The “anti-solicitation” provision
effectively precludes anyone associated with a Louisiana law
school clinic from offering community legal education and
accompanying pro bono assistance, since the essence of a
clinical educational experience is the ability to engage in
faculty-supervised practice. Under the anti-solicitation rule,
a law clinic may engage in education of the community, or
litigation on behalf of the community, but not both.
Second, in an ostensible effort to target law clinic
resources toward the poor, the Rule XX amendments added
a group client eligibility restriction that prohibits law clinic
students from representing a community organization unless
at least 51% of the group’s members are below a specified
income level. See La. Sup. Cr. R. XX §§ 4 & 5 (1999) (App.
C at 65a).
The use of community organizations as plaintiffs in
environmental litigation is particularly important because
individual plaintiffs are often vulnerable to economic
6
retaliation. However, as a practical matter, the new group-
eligibility rule requires members of a community group
seeking representation by a law clinic to disclose their
identities and personal finances in order for the clinic to be
confident that the representation is legally permitted. In doing
so, the rule effectively destroys the ability of community
organizational plaintiffs to shield individuals from potential
reprisals. In view of this impact and the significant
administrative burdens associated with documenting group
eligibility, Louisiana law school clinics have decided they
have no option but to stop having students provide
representation to community organizations.’ Thus, although
the income eligibility rules ostensibly direct clinic resources
toward the poor, they are in fact designed to function as a
hurdle cutting poor communities off from legal
representation.
B. The Proceedings Below
Plaintiffs, consisting of clients who sought representation
by Louisiana law school clinics, law school clinical
2. Many low-income community group members, like people
of any income level, are reluctant to disclose their identities and
information about their finances, particularly where it might get into
the hands of powerful litigation adversaries who could use it to harass
or embarrass them. Compl. 44 57-58 (App. D at 107a-108a).
Additionally, complying with the certification requirements imposes
severe burdens on community groups, which typically lack the
administrative resources to gather and regularly update information
on their members’ incomes sufficient to document their eligibility
for representation. Compl. J] 64-65 (App. D at 110a-11 1a).
Moreover, in at least one incident, a court has permitted opposing
counsel in a law clinic case to pursue intrusive discovery of an
individual’s finances in an effort to challenge that client’s eligibility
for law student representation. Magsino v. Gridiron Constr. Co.,
No. 99-6002 (Parish of Orleans Civil Dist. Ct., Div. “B”).
7
professors, and law students enrolled in law school clinics,
filed this lawsuit challenging the constitutionality of the
amendments to Rule XX. They alleged that the amendments
were an exercise in impermissible viewpoint discrimination
because they had the purpose and effect of suppressing the
presentation of politically unpopular viewpoints to |
Louisiana’s courts. In addition, plaintiffs argued that the
Rule XX amendments violated the First Amendment’s
unconstitutional conditions doctrine because they
conditioned the plaintiffs’ participation in the law student
practice program on surrendering important First
Amendment rights.
On July 27, 1999, the U.S. District Court for the Eastern
District of Louisiana granted the Louisiana Supreme Court’s
motion to dismiss the complaint for failure to state a claim.
App. B at 30a. The court did not address plaintiffs’
unconstitutional conditions claim, and found irrelevant
plaintiffs’ allegations that the amendments to Rule XX were
improperly motivated by a desire to suppress the disfavored
viewpoints espoused by the law students and their clients.
Indeed, the district court suggested that it was not only
permissible but inevitable for the elected Louisiana Supreme
Court to respond to political pressure, commenting that “[i]n
Louisiana, where state judges are elected, one cannot claim
complete surprise when political pressure somehow
manifests itself within the judiciary.” App. B at 61a.
The Fifth Circuit affirmed the dismissal. App. A at la.
Beginning with plaintiffs’ unconstitutional conditions
challenge to the group eligibility requirement, the court found
that it triggered mere rational basis review — a test that the
court said the rule readily met.
re
8
Addressing next plaintiffs’ unconstitutional conditions
claim involving the rule’s restriction of pro bono solicitation,
the court found that, because the solicitation restriction
merely “indirectly discourages speech,” App. A at 16a, rather
than “prohibit[ing] [it] directly,” App. A at 21a, and because
student practitioners are not licensed members of the bar,
the solicitation restriction posed no legally cognizable burden
on plaintiffs’ First Amendment rights. App. A at 17a-19a.
Turning finally to plaintiffs’ viewpoint discrimination
claim, the court of appeals acknowledged that “[t]he
Plaintiffs have alleged facts that may arguably support their
claim that the LSC reacted to pressure from the Governor
and business interests who bore [TELC] significant animus.”
App. A at 26a. But it found that even if the motive behind
the amendments was to “defuse political pressure on the
[Louisiana Supreme Court], and to diminish the likelihood
of the recurrence of similar activities in the future,” such
motivation would not “transform Rule XX into an
unconstitutional state action.” App. A at 27a.
eed i i el
The court concluded that the restrictions imposed by the
amendments to Rule XX amounted to a refusal to support
certain types of speech rather than an effort to stamp it out
or suppress it, and that “the new version of Rule XX will not
silence any group or individual’s speech except to the extent
that it ceases to support private speech.” App. A at 28a.
Although the court acknowledged that the jurisprudence
regarding the impact of viewpoint suppressive motivation
“is less than clear,” App. A at 22a, it ultimately held that
any such motive of the Louisiana Supreme Court was
irrelevant, and that the plaintiffs had failed to state a claim
that the amendments to Rule XX constituted viewpoint
discrimination. App. A at 28a-29a.
9
REASONS FOR GRANTING THE PETITION
I. The Core of the First Amendment is an Absolute Ban
on Governmental Viewpoint Discrimination. As the
Restrictive Rules at Issue Here Were Motivated By a
Desire to Silence a Particular Viewpoint, the Court
Should Clarify the Circumstances Under Which
Courts Must Consider Viewpoint Suppressive Motive
in Determining Whether a Purportedly Neutral Rule
Violates the First Amendment.
The core of First Amendment protection is a ban on
viewpoint discriminatory censorship by the government.
When evidence of viewpoint discrimination appears on the
face of a government enactment, this Court has been
merciless in its condemnation. See, e.g., R.A.V. v. City of
St. Paul, 505 U.S. 377, 381 (1992). Where, however,
government viewpoint discrimination is codified in a
purportedly neutral restriction, this Court has given
conflicting signals about the duty of the lower courts to
consider such motive when enforcing the First Amendment.
Not surprisingly, the Fifth Circuit candidly acknowledged
confusion about the relevance of the Louisiana Supreme
Court’s alleged viewpoint-suppressive motive in amending
the law student practice rules. In something of an
understatement, the court observed that “the jurisprudence
in this area is less than clear.” App. A at 22a.
This Court has embraced motive inquiry in some First
Amendment cases involving facially neutral laws or
pronouncements, and eschewed it in others, without
articulating a clear rule as to when it is appropriate for a
court to look behind the purportedly neutral words of a rule
or law regulating speech in order to take cognizance of the
censor’s viewpoint discriminatory motive. This inconsistency
10
has left the lower courts without guidance, resulting in
differing approaches to the treatment of motive, subjecting
litigants to the risk of inconsistent outcomes, and inviting
cynical regulations that masquerade as neutral measures, but
which are nothing more than sophisticated exercises in
viewpoint discrimination. This case provides an ideal vehicle
through which the Court can announce a consistent approach
to First Amendment motive inquiry, providing much needed
guidance to lower courts, litigants, and rule-making bodies
alike.
A. This Court Has Not Articulated A Standard for
When Motive Inquiry is Appropriate in Assessing
the Constitutionality of a Purportedly Neutral
Rule Limiting First Amendment Activity.
Concern about improper government motive drives most
First Amendment jurisprudence. From the void-for-
vagueness doctrine to the least-restrictive-means test to the
refusal to allow viewpoint-based judgments to the ban on
standardless permits to strict enforcement of First
Amendment equality rules, First Amendment doctrine is
designed to minimize the opportunity for government
officials to suppress disfavored speech. Because policing
improper governmental motive is so central to ensuring First
Amendment freedoms, it is critical that the Court provide
clear guidance as to the role of motive — and, in particular,
motive to suppress disfavored viewpoints — in First
Amendment review of purportedly neutral rules.
Regrettably, the Court’s precedents in this critical area
are confusing. On one side of the spectrum lie a series of
cases in which the Court has allowed parties to pierce the
purportedly neutral language of a government regulation for
proof of discriminatory motive, as well as cases where the
11
Court itself has actually invalidated a facially neutral
legislative enactment because of impermissible motive.
For example, in Cornelius v. NAACP Legal Defense and
Educational Fund, Inc., 473 U.S. 788 (1985), the Court
assessed an Executive Order and implementing agency
regulation governing access to a federal workplace charity
drive. A virtually unlimited array of charitable causes were
permitted to participate, but not groups that sought to
influence “the determination of public policy through
political activity or advocacy, lobbying, or litigation on
behalf of parties other than themselves.” Jd. at 795. The
restriction was viewpoint neutral on its face, and the Court
found the government’s justification reasonable. But that did
not end the inquiry. Rather, the Court concluded that no
justification will “save a regulation that is in reality a facade
for viewpoint based discrimination.” /d. at 811. Put another
way, a potentially valid justification “cannot save an
exclusion that is in fact based on the desire to suppress a
particular point of view.” /d. at 812 (citing Village of
Schaumberg v. Citizens for a Better Env’t, 444 U.S. 620,
634 (1980)). In light of evidence in the record that “cast doubt
upon [the] genuineness” of the asserted grounds for excluding
certain types of organizations, the Court authorized those
groups to pursue, on remand, their contention that in
excluding them, the rule’s authors were “impermissibly
motivated by a desire to suppress” their point of view. /d. at
812-13.
Motive was also a central factor in Board of Education
v. Pico, 457 U.S. 853 (1982). There the Court considered a
challenge to a school board’s decision to remove certain
books from a school library. Focusing entirely on the
motivation for that decision, this Court held that if the school
board members “intended by their removal decision to deny
2 12
[students] access to ideas with which [the board] disagreed,
and if this intent was the decisive factor in [the board’s]
decision, the [board members] have exercised their discretion
in violation of the Constitution.” Jd. at 871 (emphasis in
original). Explaining that the removal decision would be
perfectly constitutional if based on the vulgarity of the books
or their educational suitability, id., the Court sent the case
back to the trial court to consider the board’s motivation.
The Court has actually gone on to invalidate legislative
acts under the First Amendment where they were driven by
improper viewpoint-based motivation. For example, the
Court held that a Louisiana tax on the gross advertising
receipts of larger newspapers was “bad because, in light of
its history and the present setting, it is seen to be a deliberate
and calculated device in the guise of a tax to limit the
circulation of information.” See Grosjean v. American Press
Co., Inc., 297 U.S. 233, 250 (1936). As the Court later
explained, the “history” and “present setting” to which the
Court referred was the politically charged climate of tension
between then Senator Huey Long and the Louisiana press.
Long and the Governor of Louisiana had distributed a circular
referring to “lying newspapers,” and the tax in question as a
“tax on lying.” See Minneapolis Star & Tribune Co. v.
Minnesota Comm'r of Revenue, 460 U.S. 575, 579-80 (1983)
(discussing Grosjean). In a bow to the propriety of inquiring
into a legislature’s motive, the Court in Minnesota Star
observed that “the motivation of the legislature may have
been significant” in the decision to strike the Louisiana tax
in Grosjean. Id.
Conversely, the Court has also found decisive the
absence of evidence that a challenged action was improperly
motivated. For example, in Perry Education Association v.
Perry Local Educators’ Association, 460 U.S. 37 (1983),
13
the Court held that restrictions imposed on a union’s access
to a school’s internal mail system did not amount to
viewpoint discrimination. The holding hinged in part on the
absence of evidence “that the school board intended to
discourage one viewpoint and advance another.” /d. at 49.
Moreover, the Court has routinely inquired into improper
motivation in First Amendment contexts other than free
speech. For example, it relied on the “legislature’s
preeminent religious purpose” in holding that a state law
requiring that creationism be taught whenever evolution was
covered violated the Establishment Clause. See Edwards v.
Aguillard, 482 U.S. 578, 590 (1987). See also Epperson v.
Arkansas, 393 U.S. 97 (1968). More recently, the Court held
that it was appropriate and, indeed, necessary to inquire into
the circumstances surrounding enactment of a school policy
permitting student-led invocations before football games to
determine if it violated the Establishment Clause. See Santa
Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 315 (2000).
See also Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520, 540-41 (1993) (Kennedy, J., concurring)
(in First Amendment Free Exercise challenge to municipal
ordinance, “[rjelevant evidence includes, among other things,
the historical background of the decision under challenge,
the specific series of events leading to the enactment or
official policy in question, and the legislative or
administrative history . . .””).
Although the Court’s First Amendment decisions are
replete with instances where improper motive was not only
considered by the Court but determinative of the outcome,
there are, on the other side of the spectrum, cases in which
the Court has declined to inquire into motive, sometimes
expressing a broad disinclination to do so. Perhaps the
strongest statement of that position is found in United States
14
v. O'Brien, 391 U.S. 367 (1968), in which the Court referred
to the “familiar principle of constitutional law that this Court
will not strike down an otherwise constitutional statute on
the basis of an alleged illicit legislative motive.” Jd. at 383
(citing McCray v. United States, 195 U.S. 27, 56 (1904),
and State of Arizona v. State of California, 283 U.S. 423,
455 (1931)). That view has been echoed more recently in
City of Erie v. Pap’s A.M., 529 U.S. 277, 292 (2000). The
Court has explained that “[i]nquiries into congressional
motives or purposes are a hazardous matter.” O’Brien, 391
U.S. at 383. Among the reasons offered for refraining from
such inquiry are the difficulty in ascertaining the dominant
motive of a large group of legislators and the futility of
invalidating a law because of bad motive, when it could
simply be reenacted for proper reasons. See Palmer v.
Thompson, 403 U.S. 217, 225 (1971).
The Court has thus reached different conclusions about
the role of motive in its analysis of First Amendment claims
depending on the particular circumstances presented.
Although some patterns emerge from these cases — for
example the Court is more inclined to consider motive when
there is evidence of pretext or a sham rationale, and reluctant
in some instances where the body whose motive is questioned
is a large legislative one — the lack of guidance from the
Court on this question has generated confusion in the lower
courts, and has resulted in inconsistent treatment of motive
in free speech cases.’ Guidance from this Court is thus needed
3. See, e.g., Grossbaum v. Indianapolis-Marion County Bldg.
Authority, 100 F.3d 1287, 1290 (7th Cir. 1996) (concluding that
“motive of a government body is irrelevant when it enacts a content-
neutral rule that regulates speech in a nonpublic forum”), cert.
denied, 520 U.S. 1230 (1997); South Carolina Educ. Ass'n v.
(Cont'd)
15
in order to provide fair notice to all involved and ensure
uniform standards.
B. The Fifth Circuit Erred in Finding that the
Louisiana Supreme Court’s Motive to Suppress
Disfavored Speech was Irrelevant to Plaintiffs’
Viewpoint Discrimination Claim.
Led astray by the lack of reliable guidance in this area,
the Fifth Circuit dismissed as legally irrelevant the evidence
strongly suggesting that the Louisiana student practice rule
changes were driven by a desire to discourage disfavored
speech. While the lower court’s candid confusion was
understandable to a degree, the weight of this Court’s recent
authority suggests that the unusually stark evidence of
viewpoint suppressive motive in this case should not have
been ignored. :
The complaint, which must be taken as true in this
context, contains detailed allegations that the Louisiana
Supreme Court issued the amendments to Rule XX in order
to silence student law clinic programs, as a direct result of
political pressure from the Governor and powerful business
(Cont’d)
Campbell, 883 F.2d 1251, 1259 (4th Cir. 1989) (allowing motive
inquiry only in case of laws that “on their face directly inhibit or
have the inevitable effect of inhibiting freedom of speech or related
constitutional rights”) (emphasis in original), cert. denied, 493 U.S.
1077 (1990); Tovar v. Billmeyer, 721 F.2d 1260, 1264-65 (9th Cir.
1983) (assuming without discussion that inquiry into motive of city
legislators would be proper in case challenging zoning ordinance);
Families Achieving Indep. & Respect v. Nebraska Dep’t of Social
Servs., 111 F.3d 1408, 1422-23 (8th Cir. 1997) (en banc) (examining
motive behind government policy but ultimately concluding that
rule’s adoption was not intended to suppress disfavored viewpoints).
16
organizations infuriated by the “anti-business” viewpoint
expressed by the clinics and some of their clients. The district
court recognized the “close temporal proximity between the
business community’s expressions of outrage and the
subsequent changes” to Rule XX. App. B at 60a. In view of -
these facts, the court of appeals acknowledged that “[tJhe
Plaintiffs have alleged facts that may arguably support their
claim that the LSC reacted to pressure from the Governor
and business interests who bore [the Tulane Environmental
Law Clinic] significant animus.” App. A at 26a.
But neither court found the allegations of suppressive
motivation legally relevant to the claims of viewpoint
discrimination. Indeed, the district court went so far as to
suggest that political pressure of the sort alleged in the
complaint is to be expected, commenting that “in Louisiana,
where state judges are elected, one cannot claim complete
surprise when political pressure somehow manifests itself
within the judiciary.” App. B at 61a.
Contrary to the district court’s jaded appraisal, it is
precisely when such political pressure results in suppression
of a disfavored viewpoint that the protections afforded by
the First Amendment come into play. This Court has been
unwavering in its opposition to viewpoint-based
discrimination, characterizing it as an “egregious form” of
First Amendment violation. Rosenberger v. Rector and
Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995).
See also Perry, 460 U.S. at 46; Cornelius, 473 U.S. at 811.
By refusing to consider the Louisiana Supreme Court’s
suppressive motive in amending the student practice rules,
the courts below have condoned exactly the kind of viewpoint
discrimination this Court has always condemned.
17
Plaintiffs do not argue, as the Fifth Circuit suggests, that
an illicit motive “can turn any state action into an
unconstitutional suppression of speech.” App. A at 25a
(emphasis in original). Their contention is not that impure
motive standing alone is actionable, but rather that illicit
motive can provide salient evidence of unconstitutional
viewpoint suppression. If permitted to prove their case,
plaintiffs would show that the amendments to Rule XX, in
purpose and effect, restrict the expression of their viewpoint,
while presenting no impediment to the viewpoint espoused
by the government and business interests who have so
doggedly sought to silence them.
Thus, this matter fits neatly into the line of cases in which
the Court appears to be most willing to pierce a facially
neutral rule: when there is evidence suggesting that a
proffered, apparently neutral justification serves as a pretext
for an unconstitutional purpose. In Edwards v. Aguillard,
the Court observed that “[w]hile the Court is normally
deferential to a State’s articulation of a secular purpose, it is
required that the statement of such purpose be sincere and
not a sham.” 482 U.S. at 586-87. Similarly, the Court’s
authorization for an inquiry into motive in Cornelius was
triggered by evidence that “cast doubt upon [the]
genuineness” of the government’s purported justification for
its regulations excluding certain types of charities from the
Combined Federal Campaign. 473 U.S. at 812. Concurring
in Wallace v. Jaffree, Justice O’Connor has suggested that
inquiry into motive is appropriate when there is objective
evidence of improper intent. See 472 U.S. 38, 76 (1985)
(O’Connor, J., concurring).
Here, as the two lower courts grudgingly acknowledged,
there is abundant evidence alleged in the complaint that the
asserted rationale for amending the student practice rules
MB 5 ia” “bide RANT RC OM
18
was a pretext for suppressing the views expressed by the
clinics and their clients.‘ Indeed, dissenting from the
amendment to the student practice rules, one of the members
of the Louisiana Supreme Court, Justice Bernette Johnson,
confirmed that her colleagues had been pressured to rein in
the clinics because of complaints that “business in the state
was being negatively impacted by [the clinics’] misguided
challenges to environmental permits and other practices.”
Resolution of the La. Supreme Ct. Adopting Amendments
to La. Supreme Ct. R. XX (Mar. 30, 1999) (Johnson, J.,
dissenting). This frank acknowledgment of viewpoint
suppressive motive, combined with the related extensive
circumstantial evidence (including the blatant conflict of
interest of the Louisiana Supreme Court’s lead staffer, Kim
Sport) and the lack of evidence of any improper conduct by
law clinic students or staff, are the sort of evidence of
improper government action that the Court in Cornelius and
Edwards v. Aguillard found violated the First Amendment.
This Court has never asked federal courts to look away when
confronted by evidence of viewpoint suppressive motive.
The Fifth Circuit accordingly erred in holding that the
Louisiana Supreme Court’s motive was irrelevant.
4. For example, after construction of the controversial Shintech
plant was blocked by community groups represented by TELC,
Louisiana Governor Murphy J. “Mike” Foster and various business
groups launched a concerted and highly visible campaign to prevent
future clinical representation of community organizations raising
health and environmental claims. Governor Foster complained
directly to the President of Tulane University and, when that failed,
enlisted various business groups to lobby the Louisiana Supreme
Court. They sought to bar clinics from representing community
groups in opposing development plans favored by the Governor and
industry, and to restrict their freedom to solicit clients. Compl.
1] 28-31, 33, 37, 39-40, 47, 49 (App. D at 94a-99a, 102a-104a).
19
II. The Court Should Clarify How the First Amendment
Unconstitutional Conditions Doctrine Applies to
Efforts to Restrict Student Practice in Faculty-
Supervised Clinics Operated and Maintained by
Private Law Schools. Participants in Law School
Clinics May Not Be Compelled to Sacrifice
Fundamental Free Speech Rights in Order to
Represent Clients Under Appropriate Faculty
Supervision.
It has become a truism that existing precedents concerning
application of the First Amendment unconstitutional conditions
doctrine do not yield clear-cut guidance.* In recent years,
frequent disagreements have arisen in the context of
important private institutions dependent for their operation
on government financial support. At issue has been the
breadth of the government’s power to limit the speech-related
activities pursued in private programs operating with
government funds. This Court has grappled with this question
in a series of cases and contexts including Rust v. Sullivan,
500 U.S. 173 (1991) (subsidized family planning programs);
Rosenberger, 515 U.S. 819 (subsidized student press at
public university); Finley v. National Endowment for the
Arts, 524 U.S. 569 (1998) (subsidized arts programs); and
Legal Services Corporation v. Velazquez, 121 S. Ct. 1043
(2001) (subsidized legal services for the poor). In this
5. See, e.g., William Glaberson, Hazy Legal Terrain: Museum
Fight Pits Free Expression Against Control of Public Spending, N.Y.
Times, Sept. 30, 1999, at B12 (“The Supreme Court has ducked a
straight-on resolution in every case involving funding.”) (quoting
Harvard Law School Professor Richard H. Fallon, Jr.); id. (“This is
a black hole of First Amendment law. No one really knows how to
think about it, including the Supreme Court Justices.”) (quoting
University of Chicago Law School Professor David A. Strauss).
20
emerging case law, the Court has endeavored to balance grant
recipients’ First Amendment rights against the government’s
prerogative to choose what goals and messages to promote
using the limited public funds at its disposal. See Velazquez,
121 S. Ct. at 1048-49.
This case poses a related but largely unaddressed
question: what are the contours of the First Amendment
unconstitutional conditions doctrine when it is a non-
economic government permission — not a grant of funds —
that is at issue? The Fifth Circuit assumed that the same
unconstitutional conditions principles that apply to
government grants apply to non-economic government
decisions to permit certain activity:
Although the [Louisiana Supreme C]ourt is not
funding the clinics, the LSC is supporting those
clinics by its allowance of unlicensed students’
representation in the role of attorneys of clinic
clients — an allowance that the Court was under
no obligation whatsoever to grant.
App. A at 26a. Relying on Velazquez and Rust — two of the
Court’s leading government funding cases — the Fifth
Circuit concluded that “[T]he LSC must be able to define
the scope of the law practice that unlicensed students
undertake as part of the clinical programs.” App. A at 26a.
But it is by no means obvious that government “must be
able to define the scope” of the substantive activities carried
out by private law school clinics. It is true that “When the
government disburses public funds to private entities to
convey a governmental message, it may take legitimate and
appropriate steps to ensure that its message is neither garbled
nor distorted by the grantee.” Rosenberger, 515 U.S. at 833,
21
quoted in Velazquez, 121 S. Ct. at 1048. Moreover, even
when a grant is not meant to convey a government message,
but rather to subsidize the delivery of a service — for
example, legal services for the poor — the government is
still permitted to define (in viewpoint-neutral fashion)
the categories of services for which it is willing to pay.
See Velazquez, 121 S. Ct. at 1052.
The rationale for permitting such government control is
that the state is disbursing scarce public dollars and so must
be permitted to prioritize how they are spent. The same
dynamics and concerns do not obtain, however, where the
government exercises its regulatory power to permit law
students to represent clients under close faculty supervision.
The crucial difference is that regulating private law school
clinics neither involves allocation of a limited resource (like
tax dollars) nor implicates questions of the government
“speaking.” Because the law school clinic will not be
understood as speaking for the government, and because the
clinic does not cost the government anything, the
justifications that permit some content regulation of
government-funded private programs are absent in the
context of privately funded law school clinics.
The fact that the Court’s First Amendment funding case
law does not readily translate to law school clinics is not to
say that the Court has offered no guidance in this area. The
chief basis on which the government has historically regulated
the practice of law has been compliance with professional
standards of accreditation and ethics. See Middlesex County
Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 434
(1982). Where, however, government rules have attempted to
condition permission to practice law or to pursue other
professions in ways that burden First Amendment rights, the
Court has responded skeptically and applied heightened
22
scrutiny. Thus, the Court has held that rules requiring bar
applicants, see In re Stolar, 401 U.S. 23 (1971), or teacher
candidates, see Shelton v. Tucker, 364 U.S. 479 (1960), to
reveal the names of any organizations to which they may
belong as a condition of licensing violate the First Amendment.
But this limited case law notwithstanding, the Court has
offered scant guidance on the core question of when and how
student practitioners operating under faculty supervision can
be forced to surrender First Amendment rights as the price
of being permitted to participate in a law school Clinic. For
example, why should student practitioners be precluded from
appearing in any case that results from clinic efforts to
provide public legal education and accompanying offers of
pro bono assistance to disadvantaged communities?
Similarly, as to the new group eligibility restriction, although
it is praiseworthy on one level, why does the Louisiana
Supreme Court’s claimed purpose of reserving privately
financed law clinic representation exclusively for low-
income groups and individuals qualify as a valid government
interest?
To be sure, low-income communities in Louisiana and
across the nation have great unmet legal needs. And if the
State of Louisiana were to extend grants to private
universities or organizations to subsidize the delivery of legal
services to those unable to afford them — something which,
ironically, it does not do — the state would be free and, in
fact, encouraged to target those services based on need to
the state’s low-income residents. But when the government
is not funding an activity, but simply permitting private
universities and students to volunteer their assistance, what
business is it of the state to dictate whom they may help and
how — as long as the traditional regulatory criteria of
competence and ethics are satisfied?
23 ;
Occasionally states have attempted to wield their
authority to license the practice of law so as to restrict private
groups offering pro bono legal services to serving only
categories of clients deemed by the government sufficiently
needy or worthy. When challenged, state courts have
followed this Court’s associational rights precedents and
concluded that such conditions impermissibly burden the
First Amendment freedoms of pro bono legal services
providers to choose the clients they will serve. See In re
New Hampshire Disabilities Rights Ctr., Inc., 541 A.2d 208,
215 (N.H. 1988) (Souter, J.) (state may not condition
authorization of not-for-profit corporation to practice law
— an exception to the general bar against practice of law by
corporations — on requirement that it restrict itself to serving
only low-income clients). As Justice Souter explained,
writing for the New Hampshire Supreme Court, “[the]
members and employees [of a non-profit public interest law
organization] have an associational right under the first
amendment to engage in advocacy on behalf of [their target
client community] ... whether or not the clients are poor
.... Id. at 215 (citing and discussing Button and related
cases). Accord Application of Thom for Approval of
Incorporation of Lambda Legal Defense & Educ. Fund, Inc.,
301 N.E.2d 542, 544-45 (N.Y. 1973) (Burke, J., concurring)
(application of public interest legal organization for non-
profit corporate charter cannot be denied on grounds that
organization does not limit its services to indigents).
Of course, many private providers of pro bono legal
services — including private universities that elect to
establish law school clinics — will choose to direct their
services toward low-income clients, believing that their needs
are greatest. But there is a world of difference between private
entities choosing how to direct the services that they
24
volunteer, and the government leveraging its licensing power
into the power to dictate what clients private entities,
operating entirely with private funds, may volunteer to help.
Why does the state’s “greater power” to refuse to authorize
law student practice embrace the “lesser power” of
authorizing it but subject to limitations about to whom such
services may be offered? To take an unusual but not entirely
hypothetical case, if private groups and law students seek to
establish a law school clinic to teach commercial litigation
skills or defend principles of free enterprise by serving the
legal needs of business, why does the First Amendment allow
the government to refuse permission on the ground that it
would prefer that they volunteer their services to different
categories of clients?°
Iii. The Court Should Clarify Whether Rules That
Significantly Burden Efforts by Participants in Law
School Clinics to Inform Persons of Their Legal
Rights Are Subject to Exacting First Amendment
Scrutiny.
It goes without saying that if the Louisiana Supreme
Court had directly prohibited clinical law professors from
approaching persons to inform them of their rights and offer
them representation, it would have violated clear Supreme
Court precedent. See Button, 371 U.S. 415; Primus, 436 U.S.
412. The question before this Court is whether the same
conclusion follows where Louisiana’s high court instead
placed a dramatic burden on clinical law professors’ right to
engage in such community education — a burden that forces
6. In fact, the George Mason University School of Law in
conjunction with the conservative Washington Legal Foundation
currently operates just such an “Economic Freedom Law Clinic.”
See <<http://www.wlf.org/Litigating/econfreedom.asp >>,
25
a clinical law professor to choose between exercising her
constitutional right to inform the community of its legal
rights, and fulfilling her educational obligation to develop
cases suitable for student participation.
In Button and Primus, the Court identified two important
components of the First Amendment “right ‘to engage in
association for the advancement of beliefs and ideas.’ ”
Button, 371 U.S. at 430 (quoting NAACP v. State of Alabama,
ex rel. Patterson, 357 U.S. 449, 460 (1958)). The first is the
freedom to engage in public interest reform litigation where
pursued “for the advancement of ideas and beliefs [rather .
than lawyers’] own commercial interests.” Primus, 436 U.S.
at 438 n.32. The second, a significant adjunct to the first, is
the right to engage in pro bono solicitation of clients. See id.
at 431-32; Button, 371 U.S. at 437. See also Bates v. State
Bar of Ariz., 433 U.S. 350, 377 n.32 (1977) (“Underlying
[Button and its progeny] was the Court’s concern that the
aggrieved receive information regarding their legal rights
and the means of effectuating them.”’).
Typically, such solicitation entails outreach by lawyers
to members of communities adversely affected by a particular
practice or problem to inform residents about their rights
and offer pro bono legal assistance. As the Court has
explained,
[T]he efficacy of litigation as a means of
advancing the cause of civil liberties often
depends on the ability to make legal assistance
available to suitable litigants. ‘Free trade in ideas’
means free trade in the opportunity to persuade
to action, not merely to describe the facts. The
First and Fourteenth Amendments require a
measure of protection for advocating lawful
26
means of vindicating legal rights, including
advising another that his legal rights have been
infringed and referring him to a particular attorney
or group of attorneys . . . for assistance.
Primus, 436 U.S. at 431-32 (citations, internal quotation
marks & editing omitted). In light of this important role of
pro bono solicitation, the Court has held that government
restrictions on public interest solicitation “must withstand
the ‘exacting scrutiny applicable to limitations on core F irst
Amendment rights ....’” Jd. at 432 (quoting Buckley vy.
Valeo, 424 U.S. 1, 44-45 (1976)).
While recognizing this body of authority, the Fifth
Circuit found that it was not controlling because the
restrictions at issue in Button and Primus involved more
direct government prohibitions of solicitation. App. A at l6a
(“At most, Rule XX indirectly discourages speech”). The
panel concluded that, instead, the restriction was subject
merely to rational basis review. App. A at 18a.’
However, contrary to the court’s suggestion, the real
world impact of the ban on “solicitation” imposed by Rule
XX is dramatic. It functionally prevents teacher and student
7. Despite the lower court’s conclusory treatment of this issue,
there is a very substantial question whether the restriction, in fact,
survives even rational basis review. Rationality review requires that
any government classification be “rationally related to a legitimate
state interest.” City of Cleburne v. Cleburne Living Ctr., Inc., 473
U.S. 432, 440 (1985). The Fifth Circuit found that Rule XX “is
rationally related to the LSC’s goal of discouraging solicitation
generally.” App. A at 19a. But Button and Primus cast serious doubt
on whether, as a matter of law, discouraging pro bono solicitation
can ever constitute a “legitimate state interest.”
27
from engaging in both community education and clinical
representation. Clinical professors are forbidden from
educating members of the community about their legal nights
and then representing them through the clinic, if clinic
students are to be able to appear as practitioners in the
resulting case. Indeed, as to a faculty member, violation of
Rule XX’s ban on solicitation in a case in which students
participate as practitioners appears to be punishable as a
violation of state bar disciplinary rules, thus rendering Rule
XX indistinguishable from the rule in Primus.* Moreover,
as applied to law students, the restriction is equally dramatic.
The purpose of a law school clinic is to permit a qualified
law student, operating under close faculty supervision, to
experience the responsibility and challenge of representing
a client in the American legal system. The aim of the clinical
experience is a greater understanding of what it means to be
an American lawyer. Rule XX denies that experience to any
student who engages in educational efforts in the community.
By preventing law students from acting in a representative
Capacity in cases where pro bono community education and
solicitation has taken place, the Rule effectively forces both
faculty and student to choose between educating the
community and representing it.
The Fifth Circuit sought to minimize the impact of this
restriction, theorizing that while the Rule discourages legal
outreach, it does not technically foreclose a clinic from taking
8. A licensed clinic professor who exercises her right to solicit
and then has a student enter an appearance in the resulting case
would appear to violate La. R. or Pror. Conn. 5.5(b), which forbids
a lawyer from “[a]ssist[ing] a person who is not a member of the
bar in the performance of activity that constitutes the unauthorized
practice of law.” Violations of state rules of professional conduct
are grounds for lawyer discipline. La. Sup. Ct. R. XIX § 9(a).
28
on cases in which the students cannot practice. App. A at
20a. But such an effort to minimize the impact of Rule XX
ignores the very purpose of student law school clinics, which
exist in order to train student lawyers and which depend on
students’ acting in that capacity in order to permit them to
experience the demands of actual law practice. Thus, not
only is the anti-solicitation regulation a clear violation
of traditional First Amendment doctrine, it is also an
impermissible interference with the academic freedom of
legal educators to shape the experience of student participants
in a law school clinic. No basis whatsoever exists for a state-
imposed rule that forces students in a law school clinic to
forgo learning about representation of clients as the price of
learning about community legal education. An excellent law
school clinic teaches students to explain legal rights, as well
as to enforce them. Accordingly, on both traditional free
speech and academic freedom grounds, the anti-solicitation
rules are clearly unconstitutional.
i. = eee = to
29
CONCLUSION
For the foregoing reasons, the Petition for a Writ of
Certiorari shculd be granted.
JupitH L. MoGuL
18 Wyndham Road
Scarsdale, NY 10583
Mary E. Howe.
HOwELL & SNEAD
316 South Dorgenois Street
New Orleans, LA 70119
MARJORIE R. ESMAN
701 South Peters Street .
Suite 100
New Orleans, LA 70130
Respectfully submitted,
Davip S. UDELL
Counsel of Record
BRENNAN CENTER FOR JUSTICE
AT NYU Scuoo. oF LAw
PAUL K. SONN
BuRT NEUBORNE
E. JOSHUA ROSENKRANZ
PHILIP G. GALLAGHER
161 Avenue of the Americas
Twelfth Floor
New York, NY 10013
(212) 998-6730
Attorneys for Petitioners
SY Se
APPENDIX
la
APPENDIX A — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
DATED MAY 29, 2001
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 99-30895
SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE,
LOUISIANA CHAPTER; ST. JAMES CITIZENS FOR
JOBS & THE ENVIRONMENT; CALCASIEU LEAGUE
FOR ENVIRONMENTAL ACTION NOW; HOLY CROSS
NEIGHBORHOOD ASSOCIATION; FISHERMEN &
CONCERNED CITIZENS’ ASSOCIATION OF
PLAQUEMINES PARISH; ST. THOMAS RESIDENTS
COUNCIL; LOUISIANA ENVIRONMENTAL ACTION
NETWORK; LOUISIANA ASSOCIATION OF COMMUNITY
ORGANIZATIONS FOR REFORM NOW; NORTH
BATON ROUGE ENVIRONMENTAL ASSOCIATION;
LOUISIANA COMMUNITIES UNITED; ROBERT
KUEHN; CHRISTOPHER GOBERT; ELIZABETH E.
TEEL; JANE JOHNSON; WILLIAM P. QUIGLEY;
TULANE ENVIRONMENTAL LAW SOCIETY; TULANE
UNIVERSITY GRADUATE AND PROFESSIONAL
STUDENT ASSOCIATION; INGA HAAGENSON
CAUSEY; CAROLYN DELIZIA; DANA HANAMAN,
Plaintiffs-Appellants,
v.
SUPREME COURT OF THE STATE OF LOUISIANA,
Defendant-Appellee.
2a
Appendix A
May 29, 2001
* * *
Appeal from the United States District Court
for the Eastern District of Louisiana
Before GODODWIN,* GARWOOD and JONES, Circuit
Judges.
GARWOOD, Circuit Judge:
On April 16, 1999, the Plaintiffs! filed a complaint under
42 U.S.C. § 1983 in the United States District Court for the
Eastern District of Louisiana, alleging that Louisiana
Supreme Court Rule XX impermissibly suppresses Plaintiffs’
freedoms of speech and association as protected under the
First and Fourteenth Amendments. The complaint seeks
injunctive and declaratory relief, costs and attorneys’ fees.
Defendant, the Louisiana Supreme Court (LSC),? filed two
* Circuit Judge of the Ninth Circuit, sitting by designation.
1. The plaintiffs in this case are composed of four general
groups: law professors, law students, community organizations, and
student organizations. For simplicity we will refer to all plaintiffs
collectively as “Plaintiffs.”
2. Although it is well established that the Eleventh Amendment
protects state supreme courts, see Landers Seed Co., Inc. v.
Champaign National Bank, 15 F.3d 729 (7th Cir.1994), the only
defendant in this case is “the Supreme Court of the State of
Louisiana.” But, the LSC has refrained from advancing any argument
that the Eleventh Amendment bars suit at this stage of the case,
even after inquiry at oral argument.
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motions, asking the district court to dismiss the action under
Fed.R.Civ.P. 12(b)(6) for failure to state a claim, and, in the
alternative, to dismiss for lack of standing. Oral argument
was held on July 21, 1999, and on July 27, 1999, the district
court granted the LSC’s motions. This appeal by Plaintiffs
followed. We affirm.
Facts and Proceedings Below
In 1971, the LSC adopted the precursor to what is now
Rule XX, which for the first time allowed the limited practice
of law by students as part of supervised clinical education
programs in Louisiana law schools. The rule allowed eligible
law students in certain circumstances to appear in court or
before administrative tribunals in a representative capacity
on behalf of the state, its subdivisions, or any indigent person.
In 1988, the LSC amended Rule XX to clarify that the rule
also allowed students to represent indigent community
organizations. See Louisiana Supreme Court Rule XX
(1988). It is the LSC’s most recent set of amendments to
Rule XX that prompted the current suit. The rule as it exists
now, and as it has always existed, operates only to set forth
the limited circumstances under which unlicensed law
students may engage in the practice of law in Louisiana; it
has no other reach.
Over the years, several Louisiana law school clinics,
including the Tulane Environmental Law Clinic (TELC),
have supplied legal advice and representation to numerous
individuals and various community organizations. In 1996,
TELC agreed to represent St. James Citizens for Jobs and
the Environment (St. James Citizens), a group of
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approximately one hundred low-income and working-class
residents of St. James Parish. St. James Citizens was formed
in response to a proposal by Shintech, a chemical
manufacturer, to build a chemical plant in Convent, a small
town in St. James Parish. The group was dedicated to
resisting the construction of the Shintech plant in their
community and to raising public awareness of community
environmental and health concerns related to the proposed
plant. TELC represented St. James Citizens in a variety of
ways: at hearings before the Louisiana Department of
Environmental Quality, in state court, and by filing
objections to the proposed plant with the EPA. Eventually
the resistance of the local community to the new plant drove
Shintech to reject Convent as its site, and the plant was
located elsewhere in Louisiana.
According to the Plaintiffs’ complaint,’ TELC’s
representation of St. James Citizens induced significant
criticism of the clinic from political and business leaders in
Louisiana. The complaint alleges that various Louisiana
business and political leaders, including Governor Foster,
tried to convince Tulane University to curtail the endeavors
of TELC. Tulane University proved unresponsive to this
pressure, and so, according to the complaint, the “powerful
political and business interests” opposed to the clinic turned
their attention to the LSC. The complaint alleges that these
political and business interests urged the LSC to prevent
TELC and other clinics from continuing to aid community
3. For the purposes of a motion to dismiss for failure to state a
claim, we assume that all of the allegations in the complaint are
true. Brown v. Nationsbank Corp., 188 F.3d 579, 585-86 (Sth
_ Cir.1999).
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groups in giving voice to environmental and health concerns.
The Plaintiffs allege several specific incidents that they claim
document the political pressure exerted on both Tulane and
the LSC, including phone calls from Governor Foster to the
President of Tulane University, statements of Governor
Foster at a meeting of the New Orleans Business Council
requesting assistance in curtailing the efforts of TELC,
various public criticisms of TELC by Governor Foster, a
letter from a chamber of commerce organization urging the
LSC to eliminate the TELC because the faculty and students
involved were “in direct conflict with business positions,”
and letters from various business organizations, including
the Business Council, the Louisiana Association of Business
and Industry, and The Chamber/Southwest Louisiana, urging
the LSC to eliminate TELC.
Allegedly in response to the concerns of the Governor
and business groups, in the fall of 1997 the LSC launched
an official investigation into the activities of TELC and
Louisiana’s other law school clinics. The results of this
investigation have not been made public, but the Plaintiffs
allege in their complaint that two Justices of the LSC have
disclosed that the investigation did not reveal any
inappropriate or unethical behavior by any person associated
with any Louisiana law school clinic.
The LSC did in fact alter its rule concerning student
practitioners, and on March 22, 1999, the Court announced
the amendments that established the current form of
Louisiana Supreme Court Rule XX. The amendments became
effective April 15, 1999, and by their terms “shall not impact
or apply to any cases, and/or the representation of any clients,
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in which the representation commenced prior to the effective
date of the amendments.” The amendments to Rule XX
altered the existing rule in two ways that are relevant to the
present case. First, the rule’s indigence requirements were
tightened. The new rule allows representation of individuals
or families only if their annual income does not exceed 200%
of the federal poverty guidelines. The rule also now requires
that any indigent community organization that wishes to
obtain representation from a clinic must certify in writing
its inability to pay for legal services, and at least fifty-one
percent of the members of the organization must meet the
income guidelines. The second major change to Rule XX
involves the community outreach efforts of the law school
clinics. Under the new rule, clinical student practitioners are
prohibited from representing in the role of attorneys an
otherwise qualified individual or organization if any person
associated with the clinic initiated contact with that individual
or organization for purposes of that representation.‘
4. Louisiana Supreme Court Rule XX section 10 now reads:
“, .. no student practioner shall appear in a representative capacity
pursuant to this rule if any clinical program supervising lawyer,
staffperson, or student practitioner initiated in-person contact, or
contact by mail, telephone or other communications medium, with
an indigent person or indigent community organization for the
purpose of representing the contacted person or organization.”
The Commentary to section 10 reads, in relevant part, “. .. in
furtherance of the Court’s policy against solicitation of legal clients
generally, the ethical prohibitions against attorney solicitation, and
the Court’s view that law students should not be encouraged to
engage in the solicitation of cases, Section 10, as amended, prohibits
a student practitioner from representing a client who has been the
(Cont’d)
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In response to the LSC’s new Rule XX, the Plaintiffs filed
this lawsuit on April 16, 1999.
In an opinion dated July 27, 1999, the district court
dismissed the case for lack of standing and for failure to
state a claim. The district court held that the complaint failed
to establish the deprivation of any cognizable federal right.
The court found that the indigence requirements did not
implicate any freedom of association or speech, and that the
limitation of clinical services to the poor was rationally
related to a legitimate government purpose. Southern
Christian Leadership Conference v. Supreme Court, 61
F.Supp.2d 499, 511 (E.D.La.1999). The court noted that the
LSC has broad power to regulate student practice, and held
that in this context, the solicitation restrictions of Rule XX
did not violate the First Amendment. The court reasoned:
“While free speech rights do exist in this area, they are
precariously perched when balanced against the imperatives
(Cont'd)
subject of targeted solicitation by any law clinic representative.”
(emphasis added).
At oral argument, the Plaintiffs asserted that the current version
of the rule prevents clinics from engaging in any kind of advertising
or outreach. Our interpretation of this rule, however, is that the
clinics must refrain from all targeted solicitation, and that initiating
in-person or any other kind of direct contact with a potential client
prohibits student representation in any matter related to the initiated
contact. While the rule certainly discourages solicitous phone calls,
letters, and in-person offers of legal services, our reading of the
rule would not, for instance, prevent a clinic from merely distributing
a generalized leaflet or flyer indicating that the clinic’s legal services
are available for those who meet the income requirements.
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Appendix A
of protecting the public and monitoring professional ethics.
Particularly where student solicitation of potential clients is
involved, concern for protecting the public grows
considerably.” /d. at 512. Applying rational basis review,
the court held that the solicitation restrictions were justified
because the restrictions were rationally related to the state’s
legitimate interest in protecting the public and monitoring
professional ethics. Jd. The court also dismissed the
Plaintiffs’ claims of viewpoint discrimination, holding that
the political motivations of the LSC could not transform an
otherwise permissible action into a constitutional violation.
Id. at 513. Accordingly, the district court dismissed the
Plaintiffs’ claims in their entirety. This appeal followed.
Discussion
We review de novo a district court’s dismissal for failure
to state a claim under Rule 12(b)(6). Leffall v. Dallas
Independent School Dist., 28 F.3d 521, 524 (Sth Cir.1994).
In considering a motion to dismiss, the complaint should be
construed in favor of the plaintiff, and all facts pleaded should
be taken as true. Brown v. Nationsbank Corp., 188 F.3d 579,
585-86 (5th Cir.1999). Motions “to dismiss for failure to
state a claim [are] ‘viewed with disfavor, and [are] rarely
granted.’ ” Tanglewood East Homeowners v. Charles-
Thomas, Inc., 849 F.2d 1568, 1572 (Sth Cir.1988) (quoting
Sosa v. Coleman, 646 F.2d 991, 993 (Sth Cir.1981)). A Rule
12(b)(6) dismissal will not be affirmed “unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.”
Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 101, 2 L.Ed.2d
80 (1957). However, “conclusory allegations or legal
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conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss.” Fernandez-Montes
v. Allied Pilots Ass'n, 987 F.2d 278, 284 (Sth Cir.1993). In
the context of a 12(b)(6) motion in a section 1983 suit, the
focus should be “whether the complaint properly sets forth
a claim of a deprivation of rights, privileges, or immunities
secured by the Constitution or laws of the United States
caused by persons acting under color of state law.” Fontana
v. Barham, 707 F.2d 221, 225 (5th Cir.1983). If there is no
deprivation of any protected right the claim is properly
dismissed. /d.
The Plaintiffs make a variety of claims, but their
challenges to Rule XX fall into two basic groups. First, they
claim that the rule is invalid on its face as an impermissible
restriction of the First Amendment freedoms of the
individuals and organizations that are parties to this suit.
This first type of claim encompasses challenges to both of
the substantive changes the LSC has made in Rule XX: the
new, more specific indigence requirements as well as the
restriction on student representation in the role of an attorney
of any group or individual whose representation has been
solicited by any person associated with the clinic.
The Plaintiffs’ second general claim is that regardless
of whether Rule XX, on its face, restricts speech in violation
of the First Amendment, the rule was enacted in retaliation
for the clinics’ and their clients’ political speech and
advocacy in the Shintech matter, and is therefore an
impermissible form of viewpoint discrimination. The
Plaintiffs’ claim that the LSC amended Rule XX in direct
response to pressure from business interests who were
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Appendix A
opposed to the TELC’s environmental outreach and
advocacy. This second claim depends heavily on the
motivation of the LSC in enacting Rule XX.
In general, the LSC challenges the standing of all of the
Plaintiffs in this suit, and alleges that none of the parties
have suffered an injury in fact sufficient to justify this
challenge to Rule XX. In response to the first set of claims,
the LSC points out that the indigence requirements are not
unlike those of several other states and the federal government,
that the income level that disqualifies individuals from clinic
representation is significantly higher than the standard used
by many states and the federal Legal Services Corporation,
and that since none of the client organizations are entitled to
pro bono representation in civil cases there has been no
actionable deprivation of any protected right.
The LSC responds to the Plaintiffs’ attack on the
solicitation restrictions by arguing that there is no right of
non-lawyers to represent others in litigation, that the
litigation activities the clinics engage in cannot be considered
“speech” and that therefore no party’s “speech” or other
rights have been impacted. The LSC responds to the
viewpoint discrimination claims in much the same way,
arguing that Rule XX does not affect any party’s rights of
association or free speech. The LSC argues that although
attorneys may have speech and associational freedoms that
protect pro bono representation of clients for political
reasons, lay persons and law students have no such rights.
Since Rule XX does not affect the ability of any attorney to
represent pro bono clients, the LSC argues, the rule does
not implicate any protected speech or associational interests.
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Thus, this case involves four issues: (1) whether the
Plaintiffs have standing; whether Plaintiffs have stated a
claim that Rule XX, on its face, violates protected freedoms
of speech and association by (2) the tightening of the
indigence requirements or by the (3) imposition of
solicitation restrictions on student representation in the role
of an attorney; and (4) whether the LSC’s promulgation of
the rule constitutes actionable viewpoint discrimination in
this context.
Standing
All of the Plaintiffs in this case fall into one of four
categories. The first group is comprised of community
organizations and individuals that have either been clients
of the student clinics or who are concerned that they will
not be able to obtain representation from the clinics in the
future. The second consists of law professors and clinical
law instructors who oversee or are otherwise involved in the
student clinics. The third group consists of three Tulane
University law students, two third year students who were
“student practitioner” members of TELC during the 1998-99
academic year and one second year student who had been
accepted as a TELC member and “student practitioner” for
the 1999-2000 academic year. The fourth and last group
consists of two student organizations, the Tulane
Environmental Law Society (an organization of students that
includes some of the students enrolled in the Tulane
Environmental Law Clinic) and the Tulane Graduate and
Professional Student Association.’ Neither Tulane University
5. Another individual party plaintiff below (Shearer) did not
join in this appeal; consequently, we disregard him.
ee
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Appendix A
nor TELC is a party to the suit; nor is any other university
or law clinic.
To satisfy the standing requirement, a party must
establish basic three elements. First, the plaintiff must have
suffered an injury in fact. An “injury in fact” is an invasion
of a legally protected interest which is both (a) concrete and
particularized, and (b) actual or imminent and not conjectural
or hypothetical. Lujan v. Defenders of Wildlife, 504 U.S.
555, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Second,
there must be a causal connection between the injury and
the conduct complained of — in other words, the injury must
be traceable to the defendant and not the result of the
independent action ofa third party. Jd. Third, the injury must
be redressible; it must be likely, as opposed to merely
speculative, that a favorable decision will redress-the
plaintiff's injury. Jd. The party invoking federal jurisdiction
bears the burden of establishing these elements, but “Talt
the pleading stage, general factual allegations of injury~
resulting from the defendant’s conduct may suffice, for on a
motion to dismiss we ‘presum[e] that general factual
allegations embrace those specific facts that are necessary
to support the claim.’” Jd. (quoting Lujan v. National
Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 3189,
111 L.Ed.2d 695 (1990)). /
According to the complaint, Rule XX directly regulates
the operations of law school clinics in Louisiana and
significantly alters the ways in which those clinics can
permissibly function. Further, the complaint alleges that
under the new rule, several of the client organizations will
hereafter be unable to obtain representation from the clinics.
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Appendix A
Given the expansive and deferential way in which we
construe pleadings at this stage of a suit, we find that Rule
XX has enough of an impact on at least some of the Plaintiffs
so as to constitute an injury in fact. At least some of the
Plaintiffs have standing to bring each type of claim currently
before the court. Accordingly, we next address the merits of
the Plaintiffs’ claims. We begin with the Plaintiffs’ claim -
that the indigence and solicitation restrictions, on their face,
improperly infringe on the Plaintiffs’ rights under the First
Amendment.
Indigence Requirements
Rule XX now requires that clinical student practitioners
represent only those individuals who are “indigent,” which
is defined as having an annual income that is less than 200%
of the current federal poverty guidelines as established by
the Department of Health and Human Services. Louisiana
Supreme Court Rule XX, section 4. As the commentary to
Rule XX points out, applying the current federal poverty
standards the clinics are permitted to represent an individual
if his annual income is less than $16,480, and may represent
a family of four if the family’s annual income is less than
$33,340. Jd. Contrary to the Plaintiffs’ assertions, the rule
does not require individuals to provide detailed financial
information to obtain representation — the rule simply states
that the clinics may only represent individuals who fall within
the income guidelines. The Plaintiffs claim that this aspect
of the rule subjects their clients to invasive discovery
intended to obtain embarrassing financial information.
However, the LSC has always required that student
practitioners represent only “indigent” community
l4a
Appendix A
organizations. See Louisiana Supreme Court Rule XX,
section 3 (1988). Also, the assertion that improper discovery
requests will dramatically increase is clearly based almost
entirely on speculation, and in any event can be adequately
addressed in any particular instance in which it does arise.
This part of the rule does not, on its face, restrict speech in
any way other than to limit clinical representation to clients
who are poor.
The indigence requirements alone implicate no speech
interests, and are simply subject to Equal Protection
requirements. Classifications based on wealth alone are not
subject to strict scrutiny. See San Antonio Independent School
District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 1293-94, 36
L.Ed.2d 16 (1973). Strict scrutiny, therefore, is inappropriate
in a facial challenge of this part of Rule XX. Under rational
basis review, the indigence requirements are valid. They are
rationally related to one of the stated purposes of Rule XX:
providing representation to those who cannot afford it for
themselves. See Louisiana Supreme Court Rule XX, section
1. Because the indigence requirements do not, on their face,
implicate any speech interests the district court was correct
to dismiss this part of the Plaintiffs’ challenge to Rule XX.
Solicitation Restrictions
The Plaintiffs argue that section 10 of Louisiana Supreme
Court Rule XX is an impermissible restriction on their rights
of free speech and association protected by the First
Amendment. While this may be a closer question than the
challenge to the indigence requirements, we conclude that
section 10 does not impermissibly restrict the Plaintiffs’
speech.
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Appendix A
The First Amendment prohibits the government from
enacting solicitation restrictions that prevent attorneys from
offering their services pro bono to individuals or groups.
For example, the Supreme Court held in NAACP v. Button,
371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), that
Virginia could not prohibit the NAACP from advising
individuals of their legal rights and referring those
individuals to lawyers. And, in Jn re Primus, 436 U.S. 412,
98 S.Ct. 1893, 56 L.Ed.2d 417 (1978), the Court held that a
lawyer could not be constitutionally subjected to discipline
for informing members of the public of their legal rights and
offering free legal services on behalf of the ACLU. The
Plaintiffs cite both Button and Primus for the proposition
that all pro bono legal advocacy (even when conducted by
persons who are not licensed attorneys) is protected speech
that cannot be infringed without a compelling state interest.
A careful examination of those decisions reveals,
however, significant differences from the restrictions in the
present case. For example, in both Button and Primus, the
solicitous speech was itself prohibited. In Button, under
Virginia’s statute solicitation was a misdemeanor, and the
penalties for solicitation included imprisonment for up to
six months. Button, 83 S.Ct. at 334 n. 7 (citing Va.Code
§ 54.82 (1958)). Similarly, Edna Primus’s letter soliciting a
client on behalf of the ACLU was, in and of itself, a violation
of the South Carolina bar’s disciplinary rules. See Primus,
98 S.Ct. at 1898-1900. In both cases, the solicitous speech
itself was prohibited, and engaging in such speech subjected
the speaker to criminal or disciplinary sanctions.
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Appendix A
In contrast, nothing in Rule XX prohibits or prevents
speech of any kind. Rule XX does not prevent the clinics or
their members from engaging in outreach, or even from
contacting particular clients, advising them of their rights,
and offering and then proceeding to represent those clients.
The rule only prohibits the non-lawyer student members of
the clinics from representing as attorneys any party the clinic
has so solicited. Since the rule does not directly regulate
speech and the ability of unlicensed students to practice law
need not exist at all, it is inaccurate to describe the restrictions
in Rule XX as impairing or prohibiting speech. No one is
required to participate in any of the clinical programs, and
even if someone chooses to, they are not punished for or
prohibited from speaking. At most, Rule XX indirectly
discourages speech — by refusing the educational experience
of acting as an attorney in a particular matter to unlicensed
student practitioners in clinics whose members or employees
engaged in solicitation of that matter.
The impact of Rule XX’s section 10 (see note 4, supra)
on the educational experience is far from extreme. The
students are not prohibited from or restricted in working on
clinic solicited cases as paralegals, as legal (or factual)
researchers, or as trial assistants,° and they are not subject to
6. Indeed, the students are barred only from serving in an
attorney’s representative capacity by Rule XX, and could perform a
wide variety of legal related work or research, so long as it was
reviewed and any formal documents (such as pleadings, motions,
agreements or the like) were actually submitted by a licensed
supervising attorney.
(Cont'd)
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discipline for contacting potential clients and informing them
of both their rights and that free legal representation is
available from the clinics. And, targeted solicitation only
implicates the students’ representation as attorneys of that
particular client — students would remain free to-represent
as an attorney other clients who were not solicited by the
clinic.’ These limitations are a far cry from the criminal and
disciplinary sanctions invalidated by the Supreme Court in
Button and Primus.®
The other major difference between this case and Button
and Primus is, of course, that the student practitioners are
not licensed members of the bar. The LSC has a heightened
interest in overseeing the practice of law by non-attorneys
in Louisiana. Indeed, the LSC need not have ever allowed —
and did not at all until relatively recently — non-attorneys to
(Cont’d)
Nothing in Rule XX (or its challenged amendments) in any
way broadens the categories of conduct which constitute the practice
of law so as to require one engaging in same to either be a licensed
attorney or to come under the exemption for student practitioners
provided by Rule XX since 1971.
7. And, of course, the clinic’s supervising attorneys could
continue to represent any client they wish, including clients who
had been solicited.
8. The Court in Primus did not hold that all solicitation
restrictions were invalid. Instead, the Court noted that in some
situations solicitation restrictions on practicing attorneys would be
permissible, so long as those restrictions were narrowly tailored and
did not impermissibly abridge associational freedoms. Primus, 98
S.Ct. at 1908.
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Appendix A
participate in the actual practice of law in Louisiana. The
ability of students to represent clients as attorneys in legal
matters is entirely the relatively recent creation of the LSC
and continues to exist entirely at the LSC’s complete
discretion.’ The clinical programs are an educational benefit
that the LSC has decided to grant to Louisiana law students.
Rule XX’s solicitation restrictions do not prohibit or
punish speech, they merely limit one aspect of the
participation of unlicensed students in clinical education
programs — namely doing what only an attorney can otherwise
do — to representing as attorneys nonsolicited clients. And,
this limitation is entirely viewpoint neutral.'® Rule XX is
significantly different from the criminal or quasi-criminal
prohibitions of speech invalidated by the Supreme Court in
Button and Primus. We conclude that the district court was
correct to subject section 10 of Rule XX to rational basis
review. The stated rationale for section 10 is to further “the
Court’s policy against solicitation of legal clients generally,
9. Indeed, the regulation of the practice of law in Louisiana is
uniquely within the power of the Louisiana courts: “The right to
practice law in the state courts is not a privilege or immunity of a
citizen of the United States. It is limited to those who are licensed
for that purpose. ... The supreme court possesses the power,
irrespective of the legislature, to determine the qualifications of those
who apply for admission to practice law.” State v. Kaltenbach, 587
So.2d 779, 784 (La.App. 3 Cir.1991) (citing State v. Rosborough,
152 La. 945, 94 So. 858 (1922)), writ denied, 592 So.2d 1332 (1992).
10. On its face, section 10 of Rule XX is unquestionably
viewpoint neutral. We address below the Plaintiffs’ claim that the
rule was, nevertheless, motivated by a desire to suppress a particular
viewpoint.
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Appendix A
the ethical prohibitions against attorney solicitation, and the
Court’s view that law students should not be encouraged to
engage in the solicitation of cases. . . .” Louisiana Supreme
Court Rule XX section 10, Commentary. Section 10 is
rationally related to the LSC’s goal of discouraging
solicitation generally. The nature of the solicitation
provision, combined with the unique status of the clinics’
student practitioners, convince us that section 10 of Rule
XX is a constitutional exercise of the LSC’s regulatory
power.
By allowing unlicensed law students at clinics to practice
law under limited conditions, the LSC furthers two goals:
providing legal representation to poor Louisianians and
providing educational opportunities to Louisiana law
students. See Louisiana Supreme Court Rule XX section 1
(“As one means of providing assistance to clients unable to
pay for [legal] services . . . the following rule is adopted.”).
In Legal Services Corporation v. Velazquez, 531 U.S.
533, 121 S.Ct. 1043, 1049-51, 149 L.Ed.2d 63 (2001), the
Supreme Court invalidated a congressional funding
restriction that prohibited Legal Services Corporation
attorneys from participating in cases attempting to reform
or challenge a state or federal welfare system. The Court -
held that the restrictions unconstitutionally regulated private
expression in an arena in which Congress had funded Legal
Services Corporation attorneys to represent indigent litigants.
Velazquez, 121 S.Ct. at 1051-52. A major concern of the
Court was that the restrictions would do more than simply
prevent representation in certain classes of cases; the
restrictions, the Court noted, would interfere with attorneys’
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Appendix A
advocacy of their clients by preventing them from making
certain arguments in particular cases: “Restricting [Legal
Services Corporation] attorneys in advising their clients and
in presenting arguments and analyses to the courts distorts
the legal system by altering the traditional role of the
attorneys. . . . By seeking to prohibit the analysis of certain
legal issues and to truncate presentation to the courts, the
enactment under review prohibits speech and expression
upon which courts must depend for the proper exercise of
the judicial power.” /d. at 1050-51. The fact that a Legal
Services Corporation lawyer could withdraw from a
representation if a problem arose did not, according to the
Court, alleviate the problems the rule caused. Jd. at 1051.
In Velazquez, the Court noted that “Congress was not
required to fund a [Legal Services Corporation] attorney to
represent indigent clients, and when it did so, it was not
required to fund the whole range of legal representations or
relationships. The [Corporation] and the United States,
however, in effect ask us to permit Congress to define the
scope of the litigation it funds to exclude certain vital theories
and ideas.” Velazquez, 121 S.Ct. at 1052. In contrast to the
regulations in Velazquez, Rule XX does not limit speech by
the clinics’ members — any person associated with a clinic
can engage in any sort of outreach activity and can even
solicit individual clients. Indeed, the clinics are allowed to
represent clients so solicited, with one caveat — the students,
who are not lawyers, may not represent, as lawyers, any client
so solicited. Unlike the regulations struck down in Velazquez,
Rule XX imposes no restrictions on the kind of
representations the clinics can engage in or on the arguments
that can be made on behalf of a clinic client. Rule XX applies
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Appendix A
to all clinic students equally, and is entirely viewpoint
neutral. Nothing in Rule XX implicates the proper
functioning of the judicial system. None of the special
considerations present in Velazquez apply in the context of
this case.
The parties in Button and Primus were licenced
attorneys, the student clinical practitioners are not. Instead,
they are the beneficiaries of an educational program that the
LSC has decided to permit and which the LSC could end at
will. Moreover, unlike the criminal sanctions and disciplinary
penalties involved in Button and Primus, the restrictions
imposed by Rule XX do not regulate or prohibit speech
directly. And, none of the special concerns mentioned by
the Court in Velazquez are implicated by Rule XX. The First
Amendment does not prohibit the LSC from imposing this
viewpoint neutral limit on the scope of unlicensed law
students’ educational use, as attorneys, of the Louisiana
courts.
Viewpoint Discrimination and Retaliation
Our holding that the solicitation requirements are facially
permissible does not end our inquiry. The Plaintiffs also
claim that the enactment of Rule XX constitutes an
unconstitutional attempt by the Court to suppress political
speech it has deemed undesirable. Specifically, the Plaintiffs
allege that the Governor and various business interests
pressured the Court into enacting Rule XX because of the
success of the clinics and community organizations in their
attempts to resist the construction of chemical plants in their
communities. The Plaintiffs argue that even if Rule XX is
22a
Appendix A
an otherwise permissible restriction, the Court’s allegedly
suppressive motivation in enacting Rule XX transforms the
rule into an unconstitutional action. Since the rule is facially
viewpoint neutral and is not otherwise constitutionally
objectionable, this claim depends entirely on the effect the
Court’s alleged motivation has on the constitutionality of
Rule XX.
Although the jurisprudence in this area is less than clear,
there is some support for the Plaintiffs’ contentions that the
motivation of a state actor can transform an otherwise
permissible action into a violation of the First Amendment.
The Supreme Court has held that the motivation of a
legislature or other state actor can be the primary factor in
the constitutional analysis of state action in other areas of
First Amendment law, such as cases involving the
Establishment Clause or the termination of public employees
because of protected speech. See, e.g., Edwards v. Aguillard,
482 U.S. 578, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987)
(striking down a state statute requiring equal time for
“creation-science” based on the motivation of the legislature
as indicated in the statute’s legislative history); Perry vy.
Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 2698, 33 L.Ed.2d
570 (1972) (finding a suit by a junior college professor whose
contract had not been renewed, allegedly because of the
professor’s public criticism of the Board of Regents, to
present a “bona fide constitutional claim”).
In Cornelius v. NAACP Legal Defense and Educational
Fund, 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985),
the Supreme Court upheld as against a facial challenge an
executive order which limited participation in a charity drive
23a
Appendix A ‘
among federal employees (the “CFC”) to organizations that
provided direct health and welfare services to individuals or
their families. The order excluded legal defense and political
advocacy groups. The district court and the court of appeals
had sustained the facial challenge, but had not addressed the
argument of the plaintiffs (respondents), the NAACP Legal
Defense & Education Fund and other legal defense funds,
that they were excluded from the CFC because the
government disagreed with their viewpoints. The Supreme
Court reversed the decisions of the lower courts facially
invalidating the order. The court went on to state, however:
“While we accept the validity and reasonableness
of the justifications offered by petitioner for
excluding advocacy groups from the CFC, those
justifications cannot save an exclusion that is in
fact based on the desire to suppress a particular
point of view.”
—
“. .. the purported concern to avoid controversy
excited by particular groups may conceal a bias
against the viewpoint advanced by the excluded
speakers. ... Organizations that do not provide
direct health and welfare services, such as the
World Wildlife Fund, the Wilderness Society, and
the United States Olympic Committee, have been
permitted to participate in the CFC . . . .the issue
whether the Government excluded respondents
because it disagreed with their viewpoints was
neither decided below nor fully briefed before this
Court. We decline to decide in the first instance
24a
Appendix A
whether the exclusion of respondents was
impermissibly motivated by a desire to suppress
a particular point of view. Respondents are free
to pursue this contention on remand.”
Id. at 3454.
This language in Cornelius provides the Plaintiffs with
some support for their claim, but is not controlling in the
present context. Cornelius involved a rule which actually
prevented certain groups from speaking. The executive order
in Cornelius was viewpoint neutral, but it did exclude
speakers from a nonpublic forum on the basis of both their
identity and the content of their speech. Jd. at 3451. Those
speakers were shut out of a forum of which they might
otherwise have availed themselves, and in that way the order
directly regulated speech within that forum. Other speakers,
such as the Wilderness Society, were not excluded. Rule XX,
in contrast, does not create a forum for speech,'! does not
exclude any speaker from any opportunity to speak, and does
not in any way prohibit or punish speech. Nor does Rule XX
in any way distinguish between speakers on the basis of the
content of their message. There is no “picking and choosing”
here. Instead, the Plaintiffs allege, the rule makes it somewhat
more difficult to obtain and to provide free legal services.
While Cornelius does indicate that an individual or group
cannot be excluded from even a nonpublic forum on the basis
of viewpoint, we do not agree with the Plaintiffs that the
case requires us to examine the motivation underlying every
governmental decision for viewpoint neutrality.
11. Nor do Plaintiffs argue that Rule XX creates any kind of
forum for speech.
25a
Appendix A
Additionally, the Plaintiffs’ assertion that Cornelius
stands for the proposition that the motivation or purpose of
a State actor can turn any state action into an unconstitutional
suppression of speech or viewpoint is belied by the Court’s
decision in Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759,
114 L.Ed.2d 233 (1991). In Rust, the Supreme Court upheld
Department of Health and Human Services regulations that
attached several conditions on the receipt of federal funds
for Title X projects. Among the regulations were
requirements that Title X projects refrain from providing
counseling concerning abortion as a method of family
planning, and programs that received Title X money were
expressly prohibited from referring a pregnant woman to an
abortion provider, even upon request. Rust, 111 S.Ct. at 1765
(citing 42 C.F.R. § 59.8(a)-(b) (1989)). The Supreme Court
held that the government was entitled to “refus[e] to fund
activities, including speech, which are specifically excluded
from the scope of the project funded.” Jd. at 1773. The
restrictions on speech upheld in Rust explicitly prohibited
the expression of a particular viewpoint by program
participants. In later cases, the Court has limited the holding
of Rust to occasions in which the government itself is the
speaker, or to “instances, like Rust, in which the government
‘used private speakers to transmit information pertaining to
its own program.’ ” Velazquez, 121 S.Ct. at 1048 (quoting
Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S.
819, 115 S.Ct. 2510, 2519, 132 L.Ed.2d 700 (1995)).
There are differences between Rust and the present case.
The LSC is not itself a speaker — there is no government
message that the clinics are relaying to their clients. And,
Rule XX does not clearly qualify as an attempt by the LSC
26a
Appendix A
to use private speakers to transmit information pertaining to
its own program. On the other hand, the LSC need not have
allowed any unlicensed student to serve in an attorney
representative capacity. The Court has chosen to allow the
unlicensed student clinic members to engage in the practice
of law in Louisiana under certain conditions. Although the
court is not funding the clinics, the LSC is supporting those
clinics by its allowance of unlicensed students’ representation
in the role of attorneys of clinic clients — an allowance that
the Court was under no obligation whatsoever to grant.
The analogy between Rust and the present case is an
imperfect one, but we think that Rust, while not controlling,
informs our current decision. The fact that the state decides
to fund or support a program does not give the government
carte blanche to restrict the rights of program participants.
See Velazquez, 121 S.Ct. at 1049-50; Rust, 111 S.Ct. at 1776.
But, at the same time, the LSC must be able to define the
scope of the law practice that unlicensed students undertake
as part of the clinical programs. We accordingly turn to an
examination of the effects of Rule XX and the alleged
motivation of the LSC in its enactment. The issue here is
whether the Plaintiffs’ allegations of suppressive purpose,
if true, would render Rule XX unconstitutional.
The Plaintiffs have alleged facts that may arguably
support their claim that the LSC reacted to pressure from
the Governor and business interests who bore the TELC
significant animus. But the Plaintiffs’ allegations of improper
purpose, while extensive, do not focus on the LSC. Although
the Plaintiffs have certainly alleged animus on the part of
the Governor and various business groups, there is no express
27a
Appendix A
allegation, nor do the facts alleged tend to suggest, that the
LSC itself bore any particular ill will towards any of the
Plaintiffs. Instead, the complaint in essence alleges that the
LSC gave in to pressure from others to restrict the activities
of the student clinics. The Plaintiffs allege that Rule XX
was enacted to silence the TELC, but the rule is of wholly
general and prospective application — it applies to all student
legal clinics in Louisiana, not just TELC. Plaintiffs can be
understood to have asserted that the LSC ultimately bore
some character of ill will towards the TELC, at least on
account of its activities having generated unwanted political
pressure on the LSC, and that the LSC accordingly desired
to defuse the political pressure, and to diminish the likelihood
of the recurrence of similar activities in the future, by
enacting the challenged amendments to Rule XX. Such an
alleged motivation on the part of the LSC does not, however,
transform Rule XX into an unconstitutional state action.
The fundamental purpose behind the First Amendment
is to promote and protect the free expression of ideas,
unfettered by government intrusion. We are convinced,
however, that Rule XX will produce no legally significant
chilling effect on the expressive speech of any of the
Plaintiffs in this case. Rule XX does in effect impose some
restrictions on clinic activities, and, according to the
complaint, the solicitation restrictions and the new, more
strict indigence requirements will result in a decrease in the
availability of clinical representation for some of the -
Plaintiffs. Some of the client organizations in this case may
indeed find it somewhat more difficult to qualify for clinic
representation in the wake of Rule XX, and the clinics
themselves will either be forced to change their educational
28a
Appendix A
model or to refrain from soliciting particular clients. But,
even this minimal impact on the clinics and the client
organizations is “suppressive” only in comparison to the
earlier version of Rule XX. This is a crucial distinction. We
conclude that a refusal to promote private speech is not on a
par with a regulation that prohibits or punishes speech, or
which excludes a speaker from a public or nonpublic forum.'”
Rather than stamping out or suppressing private speech, the
LSC’s action has reduced the availability of support for such
speech, and the LSC — the highest judicial body in Louisiana
exercising its undisputed power and responsibility — has
reduced this support by an across-the-board, wholly
prospective and viewpoint neutral general rule. We are
convinced that the new version of Rule XX will not silence
any group or individual’s speech except to the extent that it
ceases to support private speech. The United States
Constitution does not require the LSC to continue its support
for the clinical education programs until its motives are
shown to be pure. The LSC need not have ever allowed
unlicensed students to practice law in Louisiana, and indeed
did not do so until 1971, and that Court can end thé program
at any time, and for any reason.'* The motivation of the LSC,
12. Nor does Rule XX impermissibly interfere with the content
of the private speech promoted as in Velazquez.
13. At oral argument, the Plaintiffs asserted that even a
complete refusal to allow unlicensed students to practice law in
Louisiana could be considered a violation of the First Amendment
if the change was motivated by a desire to suppress political speech.
We do not agree that the First Amendment requires the LSC to
continue, in perpetuity, an optional program that allegedly benefits
a particular political viewpoint once that program has begun.
29a
Appendix A
in this limited context, is irrelevant. As the Supreme Court
stated in Rust, “[t]his is not a case of the Government
“suppressing a dangerous idea,’ but of a prohibition on a
project grantee or its employees from engaging in activities
outside of the project’s scope.” Rust, 111 S.Ct. at 1772-73.
The LSC’s amendment of Rule XX does not, under these
circumstances, constitute impermissible viewpoint
discrimination in violation of the First Amendment.
Conclusion
For the foregoing reasons, the judgment of the district
court dismissing the action is
AFFIRMED.
30a
APPENDIX B — ORDER AND REASONS OF THE
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF LOUISIANA
DATED JULY 27, 1999
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
No. CIV. A. 99-1205
SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE,
LOUISIANA CHAPTER, et al.
v.
SUPREME COURT OF THE STATE OF LOUISIANA
July 27, 1999.
* *
ORDER AND REASONS
FALLON, District Judge.
Before the Court is the Motion of Defendant Louisiana
Supreme Court to Dismiss Plaintiffs’ Complaint for failure
to state a claim upon which relief can be granted, pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure,
and for lack of standing.
For the following reasons, the Defendant’s Motion to
Dismiss pursuant to Rule 12(b)(6) is hereby GRANTED, and
the Plaintiffs’ Complaint is hereby DISMISSED with
prejudice, and with costs.
3la
Appendix B
BACKGROUND
A. Factual Overview
In 1971, the Louisiana Supreme Court adopted Rule XX,
entitled “Limited Participation of Law Students in Trial
Work.” See La. Sup.Ct. R. XX. Section 1 of the Rule stresses
the primary responsibility of the bench and bar for supplying
legal services to all persons, including those unable to afford
them. Section 1 further declares that the adoption of Rule
XX should serve “[a]s one means of providing assistance to
clients unable to pay for such services and to encourage law
schools to provide clinical instruction in trial work of varying
kinds.” Jd. § 1. The Rule permits an eligible law student to
appear in court or before administrative tribunals in a
representative capacity on behalf of the state, its subdivisions,
or any indigent person. See id. § 3. The Louisiana Supreme
Court amended the original rule in 1988 to include student
representation of indigent community organizations.
Over the years several law school sponsored clinics,
including the Tulane Environmental Law Clinic (“TELC”),
have supplied legal advice and representation to various
indigent community organizations. According to the
Plaintiffs’ Complaint, sometime around November 1996
Plaintiff St. James Citizens for Jobs & the Environment
(“St. James”) sought TELC’s assistance in opposing the
construction of a polyvinyl chloride and ethylene dichloride
production facility by Shintech in the St. James Parish town
of Convent. See Pls.’ Compl., J 23. St. James opposed the
plant’s location on the grounds that, as a small, lower income
and predominantly African-American community, Convent
32a
Appendix B
was already host to a disproportionate share of chemical
facilities posing risks to both the environment and to the
health of local inhabitants. St. James avers that it was unable
to secure legal representation in its fight against Shintech
from any source other than TELC.
TELC appeared at hearings on behalf of St. James and
some of the other Plaintiffs to this suit, and opposed the
Shintech project. After the Louisiana Department of
Environmental Quality (“LDEQ”) submitted proposed air
permits for the plant, TELC filed objections to them with
the U.S. Environmental Protection Agency (“EPA”). In April
1997, EPA instructed LDEQ to reevaluate the proposals in
light of the environmental justice concerns raised by TELC
on behalf of its clients. See id. 26. TELC then filed
additional objections, contending that the air permits violated
a Presidential Executive Order on environmental justice as
well as Title VI of the Civil Rights Act of 1964. Shintech
eventually decided to locate elsewhere.
Plaintiffs allege that TELC’s successful advocacy
“provoked intense criticism and retribution” from business
and political leaders around Louisiana. See id. | 28. They
further assert that the Governor, citing concerns that TELC
and other groups like it were discouraging business
investment in Louisiana, mounted an aggressive campaign
aimed at galvanizing business interests to exert pressure on
Tulane University to reign in the clinic. See id. J 28-29. In
turn, these business groups sent a series of letters to the
Louisiana Supreme Court, complaining about TELC’s
activities and asking for tighter regulation of student practice.
See id. J 30-40. After conducting an investigation,
33a
Appendix B
the Supreme Court on June 17, 1998 amended Rule XX to
impose additional regulations on the operation of student
clinics throughout the State. Rule XX was thereafter amended
on two occasions, and on March 22, 1999, the Louisiana
Supreme Court published the latest version, which became. ~
effective April 15, 1999, and is the primary focus of this
lawsuit.
The Rule as finally amended provides in relevant part:
Section 4. Standard for Determining Eligibility
for Representation. Law School clinical program
staff and student practitioners who appear in a
representative capacity pursuant to this rule may
represent any individual or family unit whose
annual income does not exceed 200% of the
federal poverty guidelines established by the
Department of Health and Human Services. These
guidelines need not be applied when the client is
court-appointed or court-referred and the
appointing or referring court has reviewed the
economic condition of the client and has
determined that the client is indigent.
Section 5. Representation of Indigent
Community Organizations. Any indigent
community organization that wishes to obtain
representation pursuant to this rule must certify
in writing to the inability to pay for legal services.
The written certification shall be subject to
inspection by the Supreme Court of Louisiana.
~—
34a
Appendix B
Law school clinical program staff and student
practitioners who appear in a representative
Capacity pursuant to this rule may represent any
indigent community organization provided at least
51% of the organization’s members are eligible
for legal assistance pursuant to Section 4 of this
rule. The indigent community organization shall
also provide information to clinic staff which
shows that the organization lacks, and has no
practical means of obtaining, funds to retain
private counsel.
Section 7. The certification of a student by the
law school dean. . . (c) May be terminated by this
court at any time without notice or hearing and
without any showing of cause.
Section 10. Lawyer staffpersons of law school
clinical programs and certified student
practitioners shall adhere to the Rules of
Professional Conduct, including the rules
prohibiting solicitation of cases or clients. In
addition, no student practitioner shall appear in a
representative capacity pursuant to this rule if any
clinical program supervising lawyer, staffperson,
or student practitioner initiated in-person contact,
or contact by mail, telephone or other
communications medium, with an indigent person
or indigent community organization for the
purpose of representing the contacted person or
organization.
35a
Appendix B
Section 12. Nothing contained in this rule shall
affect the right of any person who is not admitted
to practice law to do anything that he/she might
lawfully do prior to the adoption of this rule.
La. Sup.Ct. R. XX.
B. Procedural History
1. Plaintiffs’ Complaint
On April 16, 1999 Plaintiffs instituted this suit pursuant
to 42 U.S.C. § 1983, styled as “an action to preserve access
to legal representation for individuals and community
organizations in Louisiana who seek to enforce public laws
and advance the public good, but who cannot afford to retain
private counsel.” Pls.’ Compl., J 1. Plaintiffs comprise
twenty-one separate parties, including ten community
organizations allegedly in need of law clinic representation
(“client-plaintiffs”), five law school professors who are
licensed attorneys and act as clinic instructors (“professor-
plaintiffs”), two student groups and three individual students
claiming direct interests in clinical education programs
(“student-plaintiffs”), and one private, individual donor of
funds to TELC (“donor-plaintiff’). Plaintiffs name the
Louisiana Supreme Court as sole Defendant and seek
declaratory and injunctive relief, asking this Court to declare
the amendments to Rule XX unconstitutional under both the
United States Constitution and the Constitution of the State
of Louisiana. |
In their Complaint, Plaintiffs list eight specific bases
for the relief sought by asserting that the Rule XX
36a
Appendix B
Amendments: 1) constitute impermissible viewpoint
discrimination in violation of both the First Amendment of
the United States Constitution and Article I, Section 7 of the
Louisiana Constitution; 2) violate Equal Protection under
the Fourteenth Amendment as well as Article I, Section 3 of
the Louisiana Constitution by discriminating against
Plaintiffs on the basis of their political views; 3) infringe
Plaintiffs’ rights of freedom of speech, association, and to
petition government for redress of grievances under the First
Amendment and Louisiana Constitution, by placing
restrictions on student solicitation of clients and cases (Rule
XX, Section 10); 4) impinge on the academic freedom of
professors and students in contravention of the First and
Fourteenth Amendments and Article I, Sections 7, 9, and 23
of the Louisiana Constitution by imposing the newer, more
restrictive income requirements potential clients must meet
in order to qualify for representation (Rule XX, Sections 4
and 5); 5) violate the First and Fourteenth Amendments in
addition to Article I, Sections 7, 9, and 22 of the Louisiana
Constitution because the new income guidelines and
allegedly intrusive verification procedures suppress
Plaintiffs’ freedom of speech, freedom of association, and
right to petition government for redress of grievances (Rule
XX, Section 5); 6) are unconstitutionally vague and
overbroad in that the financial disclosure and certification
requirements contained in Rule XX, Section 5 provide
insufficient guidance on how to comply, thereby violating
the rights of the clients, students, and professors under the
First and Fourteenth Amendments and Article I, Section 7
of the Louisiana Constitution; 7) violate the donor’s rights
to freedom of speech and association to advance his beliefs
by contributing funds, contrary to the First and Fourteenth
37a
Appendix B
Amendments and to Article I, Sections 7, 9, and 22 of the
Louisiana Constitution; and 8) violate Plaintiffs’ rights under
the Due Process Clause of the Fourteenth Amendment as
well as Article I, Section 2 of the Louisiana Constitution by
virtue of the arbitrary and capricious manner in which the
Rule XX Amendments were adopted, depriving them of
fundamental rights without fair notice or any opportunity to
be heard.
Plaintiffs ask this Court to declare the Rule XX
Amendments unconstitutional, and grant preliminary and
permanent injunctive relief against their enforcement and
against any disciplinary action by Defendant against any
Plaintiff or other attorney based on the Amendments.
Plaintiffs also seek an injunction directing Defendant to
reinstate Rule XX as it existed prior to the 1998 and 1999
Amendments. Finally, Plaintiffs pray for costs and attorneys’
fees pursuant to 42 U.S.C. § 1988.
2. Defendant’s Motions
The Louisiana Supreme Court filed two motions on May
26, 1999, asking this Court to dismiss Plaintiffs’ Complaint
for failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6), or
alternatively for lack of standing, and to grant a stay of
discovery pending the Court’s ruling on the Motion to
Dismiss. At oral argument on July 21, 1999, this Court
granted the Motion to Stay Discovery pending a ruling on
the Motion to Dismiss, reserving to the parties their right to
reurge any discovery matters after such ruling.
38a
Appendix B
In its Motion to Dismiss, Defendant takes the position
that Plaintiffs state no colorable cause of action since there
exists no statutory or constitutional right of a nonlawyer to
represent individuals or organizations, nor is there any right
of a litigant to legal representation in civil cases. Defendant
views the Complaint as an attempt by the Plaintiffs to establish
arule giving nonlawyers unilateral permission to solicit clients
and to appear in court and assert the rights of others.
Defendant further maintains that this Court lacks
jurisdiction over Plaintiffs’ asserted violations of the
Louisiana Constitution, as the Eleventh Amendment to the
United States Constitution operates to bar state law claims
against a nonconsenting state in federal court. Defendant then
attacks the standing of each group of Plaintiffs to prosecute
this suit, arguing that the absence of the predicate rights to
nonlawyer representation or to legal counsel in a civil case
prevents them from pleading any injury sufficient to establish
standing under the United States Supreme Court’s decision
in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct.
2130, 119 L.Ed.2d 351 (1992).
Defendant seeks dismissal of the case at Plaintiffs’ cost.
3. Plaintiffs’ Response
Plaintiffs’ filed their opposition on July 13, 1999,
contending that both motions should be denied. As for the
Motion to Dismiss, Plaintiffs maintain that it completely
misconstrues the theory underlying their Complaint. They
insist that this case is not about recognizing a constitutional
right for nonlawyers to represent clients, or about creating a
similar right of litigants to civil representation. At the core
39a
Appendix B
of this dispute, rather, is the Louisiana Supreme Court’s
exercise of its power to regulate the legal profession in an
unconstitutional manner. Plaintiffs attest that the ability to
represent others is amenable to First Amendment protection,
and that, under the standard of review for a Rule 12(b)(6)
motion, dismissal is inappropriate where a party has made
claims such as viewpoint discrimination or impingement of
free speech, which raise inherently factual issues.
ANALYSIS
A. Standard of Review
When considering a motion to dismiss pursuant to Rule
12(b)(6), a court “must accept all material allegations of
the complaint as true and construe them in the light
most favorable to the nonmoving party.” Garrett v.
Commonwealth Mortgage Corp. of America, 938 F.2d 591,
593 (Sth Cir.1991). Dismissal is not appropriate unless “it
appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to
relief.” Hernandez v. Maxwell, 905 F.2d 94, 96 (5th
Cir.1990). In making this determination, the Fifth Circuit
has stated that it is inappropriate to go beyond the face of
the pleadings. See id. .
In analyzing a suit instituted under 42 U.S.C. § 1983 in
the context of a Rule 12(b)(6) motion, the initial inquiry is
“whether the complaint properly sets forth a claim of a
deprivation of rights, privileges, or immunities secured by
the Constitution or laws of the United States caused by
persons acting under color of state law.” Fontana v. Barham,
707 F.2d 221, 225 (5th Cir.1983). A court must focus on the
40a
Appendix B
plaintiff's complaint, the nature of the purported protected
interest, and the nature of the alleged deprivation. See id.
Failure of the complaint to set forth a deprivation of a
protected interest warrants dismissal of the case. See id.
Section 1983 does not “open{ ] the federal courthouse doors
to relieve the complaints of all who suffer injury at the hands
of the state or its officers.” Jd. (quoting White v. Thomas,
660 F.2d 680, 683 (Sth Cir.1981)).
This Court’s focus, then, should be on whether the
Plaintiffs allege the deprivation of interests protected by the
Constitution or other laws of the United States. If the
Complaint cannot satisfy this threshold showing, dismissal
is appropriate.
B. The Eleventh Amendment Bars Plaintiffs’ State Law
Claims
The Defendant takes the position that the Eleventh
Amendment to the United States Constitution prohibits
Plaintiffs from seeking in federal court a declaration that
the Rule XX Amendments violate the Louisiana Constitution.
The United States Supreme Court has pronounced the basic
maxim that, under the Eleventh Amendment, “an unconsenting
State is immune from suits brought in federal courts by her
own citizens as well as by citizens of another State.” Edelman
v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 39 L.Ed.2d
662 (1974).! The U.S. Supreme Court has elaborated on this
1. The Eleventh Amendment does not, however, bar a federal
court from granting prospective injunctive relief against state
officials whose enforcement of particular laws would violate the
Fourteenth Amendment. See id. at 664, 94 S.Ct. 1347 (discussing
Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)).
4la
Appendix B
doctrine in a series of cases, the most relevant for purposes
of this dispute being Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67
(1984).
In Pennhurst, the Supreme Court reiterated its position
that the Eleventh Amendment’s jurisdictional bar to suit
against a state or one of its agencies in federal court applies
regardless of the relief sought. See id. at 100, 104 S.Ct. 900.
The Court then extended this rule by concluding that “a
federal suit against state officials on the basis of state law
contravenes the Eleventh Amendment when ... the relief
sought and ordered has an impact directly on the State itself.”
Id. at 117, 104 S.Ct. 900. The decision determined that this
principle controls even state law claims brought into federal
court under pendent jurisdiction. See id. at 121, 104 S.Ct.
900.
The Fifth Circuit has previously recognized that the
Louisiana State Bar Association is an agent of the Louisiana
Supreme Court and that it may therefore invoke Eleventh
Amendment protection. See Lewis v. Louisiana State Bar
Ass'n, 792 F.2d 493, 497 (Sth Cir.1986). By implication,
- similar relief is available to the Louisiana Supreme Court
itself. See id. at 497-98.
Plaintiffs urge Word of Faith World Outreach Ctr.
Church, Inc. v. Morales, 986 F.2d 962 (5th Cir.1993), for
the proposition that “Pennhurst does not affect a federal
court’s jurisdiction to determine whether state officials have
violated state law when such a determination is a necessary
antecedent to resolving the merits of a federal law claim.”
42a
Appendix B
Pls.” Mem. Opp’n, at 44. They contend that since violations
of state law form the basis of their federal claims, and because
they are seeking to enforce federal law, Pennhurst does not
apply to this action. See id.
In Word of Faith, the Fifth Circuit refused to find an
Eleventh Amendment prohibition to federal jurisdiction
because the Texas Attorney General had acted beyond the
scope of the authority conferred on him by state law, thereby
rendering himself subject to suit in his individual capacity.
See 986 F.2d at 965-66. The panel noted, however, that this
holding was not inconsistent with Pennhurst, since in that
case there was no allegation that the state officers in question
were acting in other than their official capacities. See id. at
966. The opinion added that nothing in Pennhurst prevents
a federal court from construing state law to divine whether
or not an official is exceeding his or her authority. See id.
Thus the cases draw a distinction between a federal court
construing state law to determine whether a state official
has acted in either an individual or official capacity, and
actually entertaining a lawsuit against a state in which state
law claims form the basis of the complaint.
The command of Pennhurst seems clearly applicable to
this dispute. Plaintiffs’ allegations that Rule XX in its current
form violates the Louisiana Constitution are purely state law
claims, lodged against a state entity that is entitled to invoke
the Eleventh Amendment. While this Court agrees with
Plaintiffs that Pennhurst does not preclude a separate
determination that Rule XX violates the United States
Constitution, finding a contravention of Louisiana’s
Constitution is not a “necessary antecedent” to resolving the
43a
Appendix B
federal claims raised here. To the extent that this Court finds
it necessary to construe state law to ascertain whether
violations of federal law have occurred, it possesses the
inherent power to do so without the prerequisite that the
Complaint contain specific state law allegations. Pennhurst
controls this case, and Plaintiffs’ state law claims must be
dismissed as jurisdictionally barred. See generally Alden vy.
Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636
(1999) (recognizing the States’ immunity from suit as a
fundamental aspect of sovereign immunity protected by the
Constitution).
C. The Complaint Fails to State the Deprivation of Any
Cognizable Federal Right
The Complaint contains allegations that Rule XX in its
current form deprives the Plaintiffs of their federal
constitutional rights. In essence, Plaintiffs express two
concerns, objecting both to the income criteria for
determining which individuals or organizations qualify for
clinic representation, and to the restrictions placed on
~ students appearing in a representative capacity on behalf of
solicited clients. Because the Plaintiffs in this case are
comprised of four discrete groups, it is helpful to examine
each category’s claims separately to determine whether any
state a cause of action. ;
1. The Client-Plaintiffs
The first group of complainants are the ten community
organizations asserting that the new clinic regulations violate
their constitutional rights by depriving them of the ability to
—oo.hrrti‘CwmUCltC*@S
44a
Appendix B
speak, associate, and petition government freely, without fear
of harassment or discrimination on the basis of their
viewpoint. These groups also maintain that the income
guidelines imposed by Rule XX infringe on their protected
right to collective activity by compelling the disclosure of
sensitive, private financial information that could expose
their members to retaliation. They assert that application of
the income criteria will force them to segregate their
members along economic lines, further abridging their
freedom of association.
The Defendant argues that, at bottom, the client-
plaintiffs’ claim is that “individuals and organizations have
a right to have representation in civil matters.” Def.’s Mem.
Supp. Mot. Dismiss, at 22. Because no such right exists, the
client-plaintiffs lack a critical predicate to stating the
deprivation of a protected interest sufficient to survive a Rule
12(b)(6) motion. See id. at 23.
Plaintiffs’ response is that their objections address the
deprivation of fundamental constitutional rights which are
independent of any right to counsel. Rule XX operates to
restrict these rights and is therefore unconstitutional
regardless of the existence of an antecedent right to
representation in civil matters. See Pls.” Mem. Opp’n,
at 5-8. |
The parties appear to agree, and the law is clear, that
there is no constitutional right to legal representation in a
civil case. See Bass v. Perrin, 170 F.3d 1312, 1320 (11th
Cir.1999); United States v. Sardone, 94 F.3d 1233, 1236 (9th
Cir.1996). Under U.S. Supreme Court jurisprudence, “[t}he
45a
Appendix B
pre-eminent generalization that emerges . . . on an indigent’s
right to appointed counsel is that such a right has been
recognized to exist only where the litigant may lose his
physical liberty if he loses the litigation.” Lassiter v.
Department of Soc. Servs. of Durham County, N.C., 452 U.S.
18, 25, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). “It is against
this presumption that all the other elements in the due process
decision must be measured.” /d. at 27, 101 S.Ct. 2153. The
Fifth Circuit has explained this rule to mean that there is no
Sixth Amendment right to appointment or effective assistance
of counsel in a civil case. See Salmon v. Corpus Christi Indep.
Sch. Dist., 911 F.2d 1165, 1166 (Sth Cir.1990); Sanchez v.
United States Postal Serv., 785 F.2d 1236, 1237 (5th Cir.1986).
Even in the criminal context, there are limits on the type
of legal assistance an indigent may obtain. For example, in
recognizing a fundamental right of access to courts for prison
inmates, the U.S. Supreme Court has cautioned that
acknowledgment of a prisoner’s right to adequate legal
resources forpursuing redress to actual harms “did not create
an abstract, freestanding right to a law library or legal
assistance, [and] an inmate cannot establish relevant actual
injury simply by establishing that his prison’s law library or
legal assistance program is sub-par in some theoretical
sense.” Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174,
135 L.Ed.2d 606 (1996). Thus even in the case of prisoners,
no right to legal assistance, let alone counsel, exists without
some concrete, particularized injury. See id. at 351-52, 116
S.Ct. 2174.
The significance of Lewis is that, even where there is a
generally recognized constitutional right to legal assistance,
46a
Appendix B
that entitlement remains subject to certain constraints. In
view of the sort of burdens on legal aid to prisoners allowed
by the Supreme Court, it is difficult to see how rules which
may incidentally erect boundaries to the availability of civil
representation can give rise to constitutional claims,
especially when no right to civil representation exists in the
first instance.
The Plaintiffs rely on cases such as Jn re Primus, 436
U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978), and NAACP
v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963),
for the proposition that representation of public interest
groups organized for the purpose of collective political
expression is amenable to First Amendment protection.
While those decisions indeed buttress such a contention, they
are distinguishable from this case. In those disputes, the
government regulations at issue operated directly on the
community organizations themselves, or on any and all
licensed attorneys who were employed, associated, or
otherwise regularly affiliated with those groups. Regulation
of the groups’ lawyers thus placed a direct restraint on the
right, as well as the ability, of those organizations to advance
the causes for which they were formed.
Here we confront the regulation of nonlawyers who are
not directly employed, associated, or otherwise affiliated with
the client-plaintiffs. The only connection alleged between
the clinics and the client-plaintiffs is a history of past
representation and a desire for future representation. Any
licensed attorneys, including the clinics’ law professors,
whom the client-plaintiffs hire, or who volunteer their
services to the client-plaintiffs, would not be limited by Rule
47a
Appendix B
XX in any fashion with regard to the scope of their advocacy.
The organizations in this suit remain free to act in any way
they choose, unburdened by the strictures of Rule XX,
whereas the groups or lawyers in Primus and Button found
themselves legally barred from certain activities no matter
who carried out the representation. To the extent that the
amendments might affect the client-plaintiffs’ expressive
activities, they only impact the community organizations’
preferred channel for advocating, as opposed to their right
to do so. Although the Plaintiffs surely feel otherwise, this
Court is of the view that this distinction matters from a
constitutional standpoint.
The client-plaintiffs argue that this reasoning rings
hollow, since they cannot effectively exercise their rights
without law clinic representation due to their inability to
secure legal services from any other source. In essence, the
client-plaintiffs’ complaint is that the manner in which Rule
XX constricts the operation of law clinics interferes with
their ability to exercise their constitutional rights in a legal
forum. One cannot exercise rights in a legal forum without
representation by counsel. This purported intrusion upon the
client-plaintiffs’ rights, then, necessarily presupposes a right
to representation in the civil context. Here, the civil
representation at issue is that provided by the students in the
law clinics. As the cases cited earlier demonstrate, no such
right exists in civil cases.
Without a predicate right to representation in civil cases,
the essential bridge to stating a claim that regulation of the
clinics burdens the client-plaintiffs’ constitutional rights
collapses. Rule XX does not operate upon the client-plaintiffs
48a
Appendix B
at all unless they voluntarily seek to engage the services of
TELC or its brethren. Under no set of facts can these
community organizations establish that Rule XX impinges
a legally protected interest, so that they fail to state a claim
under 42 U.S.C. § 1983. Their claims, therefore, must be
dismissed.
2. The Donor-Plaintiff
This category consists of one individual Plaintiff who
asserts that Rule XX implicates his constitutional rights due
to the manner in which the new conditions imposed on the
clinics dictate how they spend the private funds he
contributes. He insists that the Amendments interfere with
the independent pedagogic judgment of the clinic professors
and limit their freedom to advance the causes he intends to
support. In this way, Rule XX impinges on the donor-
plaintiff's own constitutional right to express and advance
his beliefs.
Defendant asserts that the donor-plaintiff’s claim must
be dismissed because of his failure to demonstrate standing.
The suggestion that Rule XX controls the use of private funds
is unsupportable because the rule applies instead to the
conduct of nonlawyer representation in Louisiana courts.
Moreover, the donor-plaintiff’s purported injury is too
theoretical to establish standing under U.S. Supreme Court
precedents.
Among other authorities, Plaintiffs cite Colorado
Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604,
116 S.Ct. 2309, 135 L.Ed.2d 795 (1996) (plurality opinion),
49a
Appendix B
for the proposition that government “may not restrict or
coercively discourage speech simply because it involves the
expenditure of money.” Pls.” Mem. Opp’n, at 38. The
Plaintiffs’ brief in this area relies on several decisions dealing
with the question of government regulation of political
campaign contributions and expenditures as a burden on First
Amendment rights. Presumably their argument is that the
donor-plaintiff’s situation is analogous to that of a contributor
to a political campaign.
On its face, Rule XX nowhere imposes any limit on the
amount of funds an individual or organization may contribute
to law school clinics, nor does it prescribe how such
donations may be spent. The argument is that, though facially
neutral, the Amendments have the effect of dictating how
the clinics utilize the private funds they receive, thereby
curtailing the scope of expression the donor-plaintiff seeks
to achieve through his contributions. Even assuming as true
the Plaintiffs’ contention that the application of Rule XX
burdens the expenditure of private funds for political -
expression, the case law does not support the notion that
this automatically rises to an unconstitutional constraint on
a donor’s speech or expression. See, e.g., Buckley v. Valeo,
424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam)
(upholding limits on the amount that any one person or group
may contribute).
Plaintiffs’ position also seems to be that the burden at
issue is not the imposition of a particular spending limit, but
the way in which Rule XX controls how funds are spent.
Nothing in Rule XX prohibits the donor-plaintiff from
contributing funds directly to the community organizations
50a
Appendix B
he seeks to support, however. He is free to distribute and
condition the use of money to them in any way he desires,
preserving his right to express himself through donations,
to the degree such a right even exists. At most, the donor-
plaintiff's objection is that Rule XX restricts his ability to
channel funds to their ultimate recipients, the community
groups, in the manner he sees fit.
This Court does not read any of the cases cited by
Plaintiffs to stand for the proposition that a donor has a
constitutional right to demand that funds he supplies be
expended in a certain way, particularly when the complained
of regulation burdens the conduit (i.e., TELC), and not the
ultimate recipient, of the donation, and when the donor
remains completely free to provide funds directly to the
beneficiary in any amount and under any conditions he deems
appropriate.
Even if Rule XX, which on its face does not mention
financial donations, somehow implicated a right to
contribute, this Court fails to see how the donor-plaintiff
can show that the Rule constrains that interest, since he
remains free to exercise this right through direct donations
to the community groups themselves. The donor-plaintiff’s
grievance is not cognizable under 42 U.S.C. § 1983, and his
claims must be dismissed.
3. The Professor-Plaintiffs
The law faculty’s complaint is that Rule XX inhibits
their ability to recruit clients for, and engage students in, the
types of cases which afford the best possible teaching and
Sla
Appendix B
learning opportunities. They insist that this burdens their
constitutional rights to freedom of association with students,
freedom of speech, and academic freedom.
The Defendant attacks the faculty’s standing to raise such
claims. It takes the position that they do not allege a
particularized injury or invasion of any legally protected
interest, since nothing in Rule XX controls their actions
inside or outside the classroom. They remain free to speak
or associate in any way they see fit and in any forum they
desire. In essence, Defendant’s response is that the
Amendments have no impact on how the professors
themselves, as licensed attorneys, practice law or advocate
for clients oftheir own choosing.
The professor-plaintiffs rely on, among others, cases
such as Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573,
96 L.Ed.2d 510 (1987), and Regents of the Univ. of California
v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750
(1978), for the proposition that courts apply exacting scrutiny
to legislative attempts to “interfere with the ability of teachers
to educate in the manner they deem appropriate.” Pls.” Mem.
Opp’n, at 23. Those cases, however, involved legislative
actions, laws, or other government policies which, in one
fashion or another, directly regulated the operation of the
academic institutions concerned. Here Rule XX does not
operate directly on the schools themselves, but indirectly by
controlling what law students are permitted to do outside
the classroom, as part of clinical training. Plaintiffs
undoubtedly feel this is another distinction without a
difference, but the critical contrast is that in many of cases
cited, government was requiring schools to do certain things,
52a
Appendix B
while in this situation the Amendments simply place limits
on what students can do under certain narrowly defined
circumstances.
The Court is of the opinion that, at its core, the professor-
plaintiffs’ grievance is that the Amendments deprive them
of the freedom to instruct and employ law students in
whatever fashion they desire. The professor-plaintiffs are
not complaining that Rule XX impinges their own right to
espouse any theory or advocate any idea in the classroom,
but that it intrudes upon a derivative right, one drawn from
the supposed freedom of law students to obtain a clinical
education in the manner that is most pedagogically beneficial.
Maximizing the academic experience is certainly a laudable
goal and is the very cornerstone of higher education, but
this lofty aim is nevertheless subject to legitimate societal
boundaries.
From an incremental perspective, the professor-
plaintiffs’ argument involves three steps. First, the faculty
assert a free speech right to tell students how they should
practice, implying that any limitations on this right constitute
impermissible government interference. Second, they posit
a right to show or demonstrate to law students how to practice
law, further suggesting that any curtailment of this freedom
automatically violates the principle of academic freedom.
Finally, the professor-plaintiffs want their students to learn
by doing, and when government impedes the faculty from
accomplishing this objective in the manner they deem most
appropriate, by placing limits on what the faculty can permit
students to do, it has infringed the faculty’s constitutional
right to teach freely.
53a
Appendix B
Taken to its logical conclusion, the right the faculty
implores this Court to recognize is one that bestows upon
professors unfettered discretion to instruct students, not only
in the classroom but also in the “real-world” context, in
whatever manner they choose so long as the professors feel
it is the most pedagogically beneficial. Under this theory, a
professor supervising a criminal law clinic might determine
that the best educational experience for students would be
to first learn how it feels to be a criminal and to spend time
incarcerated. If the Louisiana Supreme Court then amended
Rule XX to prohibit student practitioners from any activity
that might constitute a crime, this would automatically
burden the professors’ constitutional rights. While this may
actually be true in a purely theoretical sense, it is clear that
the State could constitutionally proscribe such behavior. In
this case, the Rule XX Amendments more narrowly define
the students’ already limited privilege to engage in what
would otherwise be the unauthorized practice of law. To
place restrictions on such a privilege burdens the professors’
rights no more than the above hypothetical proscription
against criminal law clinic students engaging in criminal
activity.
In short, Rule XX does not prohibit the professor-
plaintiffs from representing or soliciting whomever they
wish, or from employing students in any non representative
capacity they desire, just as any licensed attorney would rely
on a student law clerk or paralegal. If it is within the province
of the Louisiana Supreme Court to erect boundaries to student
practitioners’ authority to appear in court, then it is also
appropriate for the same limitations to govern how professors
direct those students. This Court cannot discern any
54a
Appendix B
cognizable injury wrought upon the professor-plaintiffs by
Rule XX, and their claims must be dismissed.
4. The Student- and Student-Organization Plaintiffs
The students and student organizations object that Rule
XX infringes their constitutional rights because it detracts
from their educational opportunities and burdens their ability
to associate and advocate for expression of collective views.
Because the new Amendments deprive them of a critical
aspect of clinical legal training, the student-plaintiffs
maintain that they have suffered a concrete, particularized
injury to a protected interest.
Defendant argues that the students cannot state a
constitutional claim because there is no predicate right of a
nonlawyer to practice law. Law students enjoy no
constitutional right to represent others in court, and the
Louisiana Supreme Court can impose restrictions on their
ability to practice without implicating fundamental freedoms.
As for the student organizations, Defendant’s reasoning is
that they lack standing to assert a right, on behalf of the
students, that does not even exist in the first instance.
The Plaintiffs do not contest the propositions that there
exists no fundamental right of a nonlawyer to practice law,
and that courts possess the inherent power to regulate both
lawyers and clinical law student practice. See Pls.’ Mem.
Opp’n, at 5; see also Dodson v. Spiliada Maritime Corp.,
951 F.2d 40, 43 (Sth Cir.1992); Ex parte Steckler, 179 La.
410, 154 So. 41, 44-45 (1934); Drew v. Unauthorized
Practice of Law Comm., 970 S.W.2d 152, 155 (Tex.App.
55a
Appendix B
1998). The natural corollary of this rule is that nonlawyer
students may practice only with the permission of the
Louisiana Supreme Court, and then only under the guidelines
promulgated by that tribunal. The students insist, however,
that the Louisiana Supreme Court may not regulate their
ability to practice in ways that violate the United States
Constitution.
One of the Plaintiffs’ arguments addresses the manner
in which Rule XX uses the federal poverty guidelines to place
resirictions on who the clinics may represent. Section 4
dictates that lawyer staff persons and students appearing in
a representative capacity may “represent any individual or
family unit whose annual income does not exceed 200% of
the federal poverty guidelines established by the Department
of Health and Human Services.” Sup.Ct. R. XX § 4. The
complaint is that this ceiling, coupled with the restrictions
contained in Section 5, forces the clinics to decline
representation of certain, otherwise qualified groups on the
basis of their income. In short, the students complain that
this provision prevents them from representing more affluent
individuals or organizations.
Courts routinely uphold the utilization of income levels
as criteria for conditioning certain public benefits. See, e.g.,
Downhour v. Somani, 85 F.3d 261, 270 (6th Cir.1996)
(validating state statute which used 600% of federal poverty
guidelines as the basis for determining whether or not it was
permissible to balance bill groups of Medicare recipients).
Significantly, Downhour also held that, at least under the
circumstances of that dispute, “the constitutional right to
privacy does not extend to protect the plaintiffs’ desire not
56a
Appendix B
to disclose their private financial information.” Jd. The U.S.
Supreme Court has further stated that, “at least where wealth
is involved, the Equal Protection Clause does not require
absolute equality or precisely equal advantages.” San Antonio
Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 24, 93 S.Ct. 1278,
36 L.Ed.2d 16 (1973).
The use of these very same federal poverty guidelines
by the Legal Services Corporation (“LSC”) to determine
eligibility for free legal services for the poor is standard
practice, and the Second Circuit has found that subsequent
Congressional restrictions on lobbying activities by LSC did
not discriminate against speech on the basis of viewpoint.
See Velazquez v. Legal Servs. Corp., 164 F.3d 757, 767-68
(2d Cir.1999).
Plaintiffs’ rejoinder is that all of these decisions
somehow involved the use of public funds. The clinics
receive only private funds, so that their situation is
distinguishable. Upon closer review, this distinction is not
so great. Although the Louisiana Supreme Court does not
offer public funding for legal services for the poor, through
the mechanism of Rule XX it does supply “labor” for the
provision of legal services to the poor. By allowing students
to represent indigents, the State is essentially offering free
assistance through the students themselves, rather than
through public funds. By analogy, then, the State should be
permitted to employ the same guidelines for determining who
will receive these limited public resources. This is especially
true in the present case, where the income guidelines adopted
by Rule XX are in fact more generous than those used by
LSC itself. While the maximum annual income level for
57a
Appendix B
representation under LSC rules is 125% of the federal poverty
guidelines, Rule XX sets a limit of 200%. See La. Sup.Ct.
R. XX § 4 cmt. (1999). This in spite of the fact that, according
to the amicus curiae brief filed by Louisiana Appleseed,
Louisiana ranked forty-seventh in the nation in personal
income in 1989. See La. Appleseed Amicus Brf., at 4.
Consistency would seem to require that income guidelines
be structured to ensure that the poorest of the poor have their
needs met before permitting those in less dire circumstances
to receive free aid. When viewed from this perspective, the
new burdens placed on student representation does not seem
egregious.
From its inception in 1971, the purpose of Rule XX has
been similar to the role envisioned for LSC: to provide legal
services to the indigent, while simultaneously affording
students enhanced educational opportunities. Thus Rule XX
has always had a public service orientation, one geared
towards supplying needed legal services to those least able
to pay for them. Without any income criteria whatsoever for
determining who might qualify for aid, it is conceivable that
the poor themselves might not receive any legal assistance.
The amicus briefs indicate that the poorest of the poor in
Louisiana are not having their legal needs met. See id.
at 5-8. To the extent that student practitioners seek to use
their time and resources offering assistance to clients whose
income exceeds 200% of the federal poverty guidelines, they
further deprive the very poorest people in Louisiana of an
opportunity for legal representation. Income restrictions are
not an improper method for conditioning the availability of
free legal services, since they are consistent with the original
purpose of Rule XX. In light of the foregoing, it seems quite
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Appendix B
a stretch to suggest, as Plaintiffs do, that use of income
guidelines to condition a benefit somehow violate freedom
of speech or association.
Another of the students’ primary objections to Rule XX
involves Section 10, which imposes restrictions on their
ability to solicit potential clients, and on their freedom to
appear in a representative capacity on behalf of clients whom
clinic lawyers or staffpersons have solicited. See La. Sup.Ct.
R. XX § 10. At the outset it is important to note that the
Louisiana Supreme Court possesses “ ‘exclusive and plenary
power to define and regulate all facets of the practice of law,
including . . . the client-attorney relationship.’ ” Dodson, 951
F.2d at 43 (quoting Succession of Wallace, 574 So.2d 348,
350 (La.1991)). This authority necessarily must encompass
appropriate regulation of the solicitation of clients. Indeed,
this Court cannot conceive of many functions closer to the
core of the Louisiana Supreme Court’s responsibilities to
the bar than the regulation of solicitation, an area pregnant
with concerns for protection of the public and the appropriate
conduct of attorneys. While free speech rights do exist in
this area, they are precariously perched when balanced
against the imperatives of protecting the public and
monitoring professional ethics. Particularly where student
solicitation of potential clients is involved, concern for
protecting the public grows considerably.
The Commentary to Section 10 indicates that the
Louisiana Supreme Court was concerned with the possibility
that future attorneys’ first experience with solicitation might
occur in the law school setting, during their embryonic stage,
before they have had the opportunity to mature into
See»
59a
Appendix B
full-time, practicing lawyers. See La. Sup.Ct. R. XX § 10
cmt. (1999). This is a legitimate state interest and a proper
matter for the Supreme Court to address. There are also
legitimate concerns that students engaged in solicitation
might unintentionally mislead or oversell clinic services to
the public. It is significant that the only restriction placed
on solicitation by licensed clinic attorneys is that students
would not be permitted to appear in a representative capacity
in such cases. This leaves the door open for students to
participate in solicited cases in other fashions, and to become
fully involved, including in a representative capacity, in cases
that the clinics have not solicited. Finaily, the Commentary
notes that the Rule is not designed to “in any way restrict or
prohibit law school clinical activities which are intended to
provide education or information to Louisiana citizens.” Jd.
In short, this Court is of the opinion that Section 10 does not
implicate the students’ constitutional freedoms due to the
Louisiana Supreme Court’s inherent power to regulate
student practice, and even if it did, the Court believes that
Section 10 strikes the proper balance between the government
and individual interests at stake. It is rationally related to a
legitimate state interest. See generally City of New Orleans
v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511
(1976); Williamson v. Lee Optical of Okla., 348 U.S. 483,
75 S.Ct. 461, 99 L.Ed. 563 (1955).
D. Summary
This Court is aware that it is considering a 12(b)(6)
motion. The burden on the movant in such a motion is heavy.
Nevertheless, failure of a complaint to set forth a deprivation
of a protective interest compels its dismissal. Nonlawyers
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Appendix B
have no constitutional or legal right to represent individuals
or organizations in courts or before administrative tribunals.
Rule XX authorizes law students in clinics to do so on a
limited basis. The limitations are rationally related to
legitimate state interests. They are an appropriate exercise
of the Supreme Court’s duty, responsibility and power. There
is no protective interest and thus there can be no deprivation.
Once the rhetoric has been stripped away from this
dispute, what essentially remains is the Plaintiffs’ assertion
that the change in Rule XX was precipitated by political
pressure, and was not based on any improper conduct on the
clinics’ part. The Plaintiffs allege that this political pressure
took the form of letters and public comments directed at the
Louisiana Supreme Court Justices during an election
campaign
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