                     United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 04-3503
                                ___________

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.    *

                                ___________

                          Submitted: April 13, 2005
                             Filed: January 5, 2006
                              ___________
Before COLLOTON, McMILLIAN, and BENTON, Circuit Judges.
                         ___________

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


      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).

                                         -2-
goddess Themis at the top of the county courthouse, and that he felt “like a second-
class 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


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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

      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.

                                          -6-
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

                                          -7-
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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