Law Professors/First Amendment

An interesting case recently in from the 8th Circuit reversed the lower court's judgment on the pleadings for the former director of the University of North Dakota law school clinical program in a suit by a citizen activist.

The clinic had been involved in a suit on behalf of North Carolina State University clients who sought removal of a Ten Commandments monument from city property.  The citizen (unhappy with the clinic's work in the suit just mentioned), contacted the clinic to request assistance in bringing suit to challenge the statute of the goddess Themis on the top of the county courthouse (saying that he wanted the same assistance that the "atheistic" professors involved in the Ten COmmendments monument challenge had received).  The clinic declined to represent him, saying that their workload did not allow taking on such a case at that time and that the citizen's "antagonistic" relationship with the clinic would preclude establishment of an effective lawyer-client relationship in any event.  The citizen brought suit under 42 USC 1983 claiming that his First Amendment rights have been abridged. 

The 8th Circuit indicated that clinical programs may not exclude potential clients solely based on their viewpoints, said that the fact that the citizen was only a "potential" client was not enough to foreclose challenges based on "viewpoint discrimination" by a public entity, said that further fact-finding was needed to determine whether the asserted problems with adequate resources met the Mt. Healthy causation test, and treated issues of judgment about which cases to take and concerns of academic freedom as matters that should be looked at in a factual context upon remand.  The AALS and CLEA participated as amici.  This is a worrisome case. Wishnatsky v. Rovner, No. 04-3503 (8th Cir. January 05, 2006)