United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3503

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Martin Wishnatsky, *

*

Appellant, *

* Appeal from the United States 

v. * District Court for the District 

* of North Dakota.

Laura Rovner, Director, Clinical *

Education Program, University of *

North Dakota School of Law, in her *

individual and official capacities, *

* 

Appellee. *

*

__________________ *

*

Association of American Law Schools, *

*

Amicus on Behalf of Appellee, *

*

Clinical Legal Education Association; *

Society of American Law Teachers; *

Georgetown University Law Center *

Clinical Program, *

*

Amici on Behalf of Appellee. *

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Submitted: April 13, 2005

Filed: January 5, 2006

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1

Since the district court’s entry of judgment, Ms. Rovner has left the University

of North Dakota and is no longer employed as the Clinic’s director. Insofar as this

action seeks relief against Rovner in her official capacity, it continues automatically

against her successor in office. Fed. R. Civ. P. 25(d).

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Before COLLOTON, McMILLIAN, and BENTON, Circuit Judges.

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COLLOTON, Circuit Judge.

Martin Wishnatsky brought an action pursuant to 42 U.S.C. § 1983 against

Laura Rovner, the director of the University of North Dakota School of Law’s Clinical

Education Program, alleging that she had violated his rights under the First

Amendment, and seeking declaratory and injunctive relief. The district court granted

Rovner’s motion for judgment on the pleadings, and Wishnatsky appealed. We

reverse and remand for further proceedings.

I.

Martin Wishnatsky is a resident of Fargo, North Dakota, with a history of

commenting on matters of public concern. As director of the Clinical Education

Program at the University of North Dakota School of Law (“Clinic”), Laura Rovner

drew Wishnatsky’s attention in 2002, when she appeared with her students on behalf

of North Dakota State University clients who were requesting the removal of a Ten

Commandments monument from city property.1

 In a letter to the editor of the Grand

Forks Herald, Wishnatsky identified Rovner as the head of the Clinic and criticized

the Ten Commandments suit as an inappropriate use of public funds.

In 2003, Wishnatsky sought to advance his own First Amendment lawsuit, and

he contacted Rovner and the Clinic for assistance. In a letter dated October 29, 2003,

Wishnatsky wrote that he was “distress[ed]” by Grand Forks County’s display of the
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goddess Themis at the top of the county courthouse, and that he felt “like a secondclass citizen” when he encountered such “pagan religious figures” in public places.

He requested assistance “developing a lawsuit on the same basis as that granted to the

atheistic North Dakota State University professors” who brought suit over the Ten

Commandments monument. (Add. at 10).

On November 12, 2003, Rovner responded on behalf of the Clinic and denied

Wishnatsky’s request for representation. In the letter, she wrote that “due to the high

demand for our legal services coupled with our current caseload and limited resources,

the Civil Rights Project is unable to accept any new cases at this time.” (Add. at 12).

She also indicated that “even if the lack of resources did not preclude” representation,

“ethical obligations under the North Dakota Rules of Professional Conduct would

prohibit” the Clinic’s representation of Wishnatsky. According to Rovner, “your

persistent and antagonistic actions against the Clinical Education Program and faculty

involved would adversely affect our ability to establish an effective client-attorney

relationship with you and would consequently impair our ability to provide legal

representation.” (Add. at 12). 

Wishnatsky responded to the denial of legal services with the instant lawsuit.

In an amended complaint, filed pro se on January 26, 2004, he brought suit against

Rovner in her individual and official capacities under 42 U.S.C. § 1983, alleging that

her “refusal of legal representation to [Wishnatsky] on the basis of criticism of the

Clinical Education Program and its director violates the Free Speech and Equal

Protection Clauses of the United States Constitution.” Rovner filed an answer and

then moved for judgment on the pleadings. The district court granted the motion on

July 29, 2004, and then denied Wishnatsky’s motion to alter or amend judgment in

September 2004. This appeal followed. 
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II.

When evaluating a motion for judgment on the pleadings, a court must accept

as true all factual allegations set out in the complaint, and must construe the complaint

in the light most favorable to the plaintiff, drawing all inferences in his favor.

Waldron v. Boeing Co., 388 F.3d 591, 593 (8th Cir. 2004). Judgment on the pleadings

is appropriate only when there is no dispute as to any material facts and the moving

party is entitled to judgment as a matter of law. We review the district court’s

decision de novo. Id.

Wishnatsky asserts that despite Rovner’s professed reasons for declining to

provide him with legal representation, the Clinic actually denied services to him

because of his criticism of the Clinic and its director. Rovner and the Clinic argue that

Wishnatsky did not properly allege in his complaint that the Clinic’s stated reasons

for denying representation – its insufficient resources and ethical concerns – were

pretextual, and that his action cannot proceed on a theory of pretext. We reject this

constricted reading of Wishnatsky’s complaint as inconsistent with the requirement

that pro se complaints be construed even more liberally than counseled pleadings. See

Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Atkinson v. Bohn, 91 F.3d

1127, 1129 (8th Cir. 1996) (per curiam). Wishnatsky’s amended complaint alleged

that he had commented about the Clinical Education Program in the Grand Forks

newspaper, and the Clinic concedes that the district court properly considered the

substance of these publications, in which Wishnatsky criticized the Clinic’s use of

public funds to advance “the Ten Commandments lawsuit.” (Appellee’s Br. at 4-6).

The complaint then specifically alleges that the “refusal of legal representation to

Plaintiff on the basis of criticism of the Clinical Education Program and its director

violates the Free Speech and Equal Protection Clauses of the Constitution.” (Am.

Compl. ¶ 7; Addendum at 14). This statement is sufficient to give the defendants “fair

notice of the nature and basis” of Wishnatsky’s claim, and it therefore meets the
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requirements of Federal Rule of Civil Procedure 8(a). Oglala Sioux Tribe of Indians

v. Andrus, 603 F.2d 707, 714 (8th Cir. 1979). 

Having construed Wishnatsky’s complaint, we must consider his allegation that

the Clinic refused to permit him to participate as a client in the clinical program

because of his previously expressed views about the Clinic, its director, and its lawsuit

challenging a public display of the Ten Commandments. Accepting this allegation as

true for purposes of a motion for judgment on the pleadings, we conclude that the

district court erred in dismissing Wishnatsky’s complaint.

While insisting that the evidence will show that the Clinic did not exclude

Wishnatsky based solely on his speech and expression, the Clinic does assert, as a

legal position in support of its motion, that it may exclude persons from the program

solely on the basis of their viewpoint. Taken to its logical conclusion, the Clinic’s

argument means that a public law school could announce that its clinical program will

accept as clients only persons who belong to one political party or espouse particular

views on controversial issues of the day. We reject that proposition as inconsistent

with the First Amendment.

“Discrimination against speech because of its message is presumed to be

unconstitutional,” and viewpoint discrimination is “an egregious form of content

discrimination.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819,

828-29 (1995). We have said flatly, in light of fifty years of Supreme Court

precedents, that denial of participation in a state-sponsored program based on the

party’s beliefs or advocacy is unconstitutional:

Even though a person has no “right” to a valuable government benefit

and even though the government may deny him the benefit for any

number of reasons, there are some reasons upon which the government

may not rely. It may not deny a benefit to a person on a basis that
2

The district court analyzed Wishnatsky’s claim as a retaliation claim, and

concluded Wishnatsky, to state a claim, must demonstrate an injury that would

“‘likely chill a person of ordinary firmness from continuing to engage in that

activity.’” (Add. at 8) (quoting Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998)).

The Clinic does not defend the district court’s judgment on this basis, but argues only

that the absence of a “chilling effect” shows that the Clinic did not deny Wishnatsky

a valuable government benefit. But see Cuffley, 208 F.3d at 707 n.5. While a

requirement of a “chilling effect” would be part of the analysis if Wishnatsky had

alleged only that the government took retaliatory action against him because of his

speech, e.g., Garcia v. City of Trenton, 348 F.3d 726, 729 (8th Cir. 2003), such a

showing is not necessary to state a claim that the Clinic discriminated against

Wishnatsky by denying access to the program on account of his viewpoint.

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infringes his constitutionally protected interests – especially, his interest

in freedom of speech.

Cuffley v. Mickes, 208 F.3d 702, 707 (8th Cir. 2000) (quoting Perry v. Sindermann,

408 U.S. 593, 597 (1972)). This doctrine is “not limited to valuable government

benefits or even benefits at all,” id. at 707 n.5, and we have held in recent years, for

example, that a State may not deny access to an Adopt-A-Highway program or a

vanity license plate program based on an applicant’s views. Id. at 706 n.3; Robb v.

Hungerbeeler, 370 F.3d 735, 741 (8th Cir. 2004); Lewis v. Wilson, 253 F.3d 1077,

1081-82 (8th Cir. 2001). Excluding a prospective client from consideration for

government-funded legal services simply because he has engaged in protected speech

that the director of the program finds disagreeable violates these principles.2

The Clinic contends that because Wishnatsky had no “pre-existing commercial

relationship” with the program, the prohibition on viewpoint discrimination does not

apply. This argument is premised on the Supreme Court’s statement in Board of

County Commissioners v. Umbehr, 518 U.S. 668 (1996), after holding that First

Amendment scrutiny did apply to a county’s decision to terminate a relationship with

an independent contractor, that “we need not address the possibility of suits by bidders

or applicants for new government contracts” who cannot rely on a pre-existing
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commercial relationship. Id. at 685. The Court has never held, however, that a public

entity may exclude bidders or applicants for government contracts based solely on

their views, and that remains an open question. 

We are not persuaded that the Court’s mere reservation of the question

concerning aspiring public contractors in Umbehr signals that a law school clinical

program may discriminate against applicants for services based on their private

speech. We have not required a pre-existing relationship before requiring a State to

refrain from viewpoint discrimination against prospective program participants in

other areas, see Robb, 370 F.3d at 743-44; Cuffley, 208 F.3d at 712, and even if such

a rule were to develop in the area of government contracts, it likely would be

motivated by concerns about the judiciary “intrud[ing] itself into such traditional

practices as contract awards by the government’s executive, be it on a federal, state

or local level.” McClintock v. Eichelberger, 169 F.3d 812, 817 (3d Cir. 1999)

(internal quotation omitted). No concern about the operation of traditional

government functions supports a rule that permits institutions of higher education –

traditionally bastions of free speech and the vigorous exchange of ideas – to

discriminate on the basis of viewpoint in the administration of a clinical legal

program.

The Clinic and amici advance other reasons why it was permissible to deny

Wishnatsky’s request for assistance. These include insufficient resources, the

“academic freedom” of a clinical professor to determine which cases and clients are

best for a clinical curriculum, the alleged insincerity of Wishnatsky’s request, and

ethical concerns founded on “personal conflict” between Rovner and Wishnatsky. We

think the Clinic overstates the latter point by suggesting that an attorney is prohibited

by ethical rules as a matter of law from representing a person who previously

criticized the attorney, without consideration as to whether a fresh start, common

purpose, and agreement to bury the hatchet might overcome previous discord. We

recognize, however, that a clinical education program is not the equivalent of a public
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legal aid program, and we do not gainsay that the foregoing considerations, under

appropriate circumstances, are legitimate reasons to decline representation of a

particular applicant. Nor do we quarrel with the suggestion that decisions of a clinical

program about which cases and clients to accept in an academic environment should

be entitled to substantial deference. But these are factual defenses to Wishnatsky’s

claim, both as to whether the Clinic was motivated at all by Wishnatsky’s viewpoint

and whether any such motivation was a substantial factor in the denial of his

opportunity to participate in the program. See Umbehr, 518 U.S. at 685; Mt. Healthy

City Bd. of Ed. v. Doyle, 429 U.S. 274, 286-87 (1977). They are not sufficient

grounds to justify dismissal of the complaint on a motion for judgment on the

pleadings, even assuming that the defenses were properly pleaded. Wishnatsky

alleges that he was denied participation strictly because of his speech, and taking that

allegation as true, he has stated a claim for a violation of his constitutional rights. 

The judgment of the district court is reversed, and the case is remanded for

further proceedings consistent with this opinion.

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