Supreme Court Declines to Review Poor Ninth Circuit Decision

By on January 9, 2008

The Supreme Court has decided not to review Flint v. Dennison, thereby leaving the poorly reasoned and potentially dangerous Ninth Circuit decision intact. In upholding a one-hundred dollar limit on campaign expenditures for student government, Flint erroneously gave universities too wide of a net to suppress their students’ speech.

University of Montana student Aaron Flint brought suit after the University kicked him out of his student government senate seat for spending more than one hundred dollars on his campaign. Mr. Flint argued that the Supreme Court’s decision in Buckley v. Valeo, which held that government restrictions on political campaign expenditures run directly afoul of the core guarantees of the First Amendment, should govern the outcome of his case. In overturning government restrictions on campaign expenditures, the Buckley opinion stated clearly, “There is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs . . . of course includ[ing] discussions of candidates.”

The Buckley opinion further held that the First Amendment right to “‘speak one’s mind… on all public institutions’ includes the right to engage in ‘vigorous advocacy.’” (Emphasis added.) Nevertheless, the Ninth Circuit rejected Mr. Flint’s argument that Buckley governed his case, writing that Buckley was irrelevant to a public university’s student government elections because, in their view, the student government officials were not holding political offices. Rather, they were merely taking part in an “educational experience” designed by the university. And, as a result, the university was free to restrict campaign speech as long as the restrictions were reasonably related to the university’s “educational mission.”

The Flint opinion’s rejection of Buckley’s applicability in favor of a “reasonableness” standard set a bad precedent, encouraging the view that public universities, citing their “educational mission,” can suppress student speech in any number of contexts. The student government’s constitution, in this case, explicitly stated that its “primary responsibility” was to “serve as an advocate for the general welfare of the students.”

The Flint opinion characterized the student government as an “educational experience” on the weak grounds that it was a “student government on a “university campus and the “primary purpose” of a university is education. This ridiculously broad reasoning opens the door for any number of university-related activities to be classified as “educational.” This potentially includes other groups equally deserving of the First Amendment’s core protections, like student newspapers.

The Flint courts somewhat blasé attitude toward speech suppression by public universities is revealed in two sections of its opinion. Dismissing Buckley’s relevance because the Flint case is—but of course—a “student government at a “university,” the court wrote, “The ubiquity with which political government is present to control facets of our lives is not—thank Heavens!—replicated by student government in student lives. The University uses [the student government] primarily as an educational tool.” And later, opining further on the educational benefits of student government, the court continued, “Students are forced to campaign personally, wearing out their sho-leather [sic] rather than wearing out their parent’s—or an activist organization’s—pocketbook.”

Parents may or may not be contributing to their sons’ and daughters’ student government campaigns. But the fact that, apropos of nothing, the Flint court decided to mention that as an educational benefit taps into the greater view underlying the opinion—that university students aren’t yet adults and are relying on their parents and the university to continue to guide them. According to this view, university students are living in a large learning laboratory run by the university, and the university, despite being a public institution, can suppress its students’ speech in any number of contexts in order to “educate” them. (Mr. Flint made the valid point that the speech limitations actually teach students “that the First Amendment doesn’t protect political speech” and “how not to conduct elections in a free society.”)

As the Supreme Court has declined to review it, the Flint decision will remain good law in the Ninth Circuit. One can only hope that the Ninth Circuit will limit Flints reach, and avoid expanding it to other activities and groups operating on university campuses, such as student newspapers. Most importantly, one can only hope it will rid itself of the underlying notion evident in the opinion—that university students deserve fewer rights than other adults.