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Court allows First Amendment claim based on alleged professor retaliation for paper 'harshly critical of … lesbianism'


Pompeo v. Board of Regents (D.N.M. Sept. 29, 2014, but apparently not substantially publicized until Thursday):

The University of New Mexico offered a class and Plaintiff enrolled in that class. The subject matter of the class ("Images of (Wo)men: From Icons to Iconoclasts") as set out in [the Complaint] was chosen by the class instructor, Defendant Hinkley, to spark "incendiary" class discussions. The syllabus assured students that "it's quite clear that we do not expect anyone to necessarily agree with the positions and arguments advanced in our work. There's controversy built right into the syllabus, and we can't wait to hash out our differences." One of the class assignments was to view the film Desert Hearts. Plaintiff, apparently taking Hinkley at her word as to the freewheeling character of the forum, submitted a four-page critique of the film Desert Hearts that was harshly critical of the lesbian characters portrayed in the film and of lesbianism in general.

Hinkley graded and returned the papers submitted by Plaintiff's classmates. However, ignoring representations in the syllabus concerning her openness to differing views, Hinkley refused to read beyond the first two pages of Plaintiff's critique, characterizing Plaintiff's views as inflammatory and offensive. Hinkley returned Plaintiff's critique without assigning a grade. At a subsequent meeting with Plaintiff, Hinkley accused Plaintiff of using "hate speech." Hinkley told Plaintiff that it would be in Plaintiff's best interest to drop the class. Due to Hinkley's hostility, including her refusal to assign a grade to Plaintiff's critique, Plaintiff withdrew from the "Images of (Wo)men" class….

First Amendment Standards …

The Court's analysis of the merits of Plaintiff's First Amendment claim involves three questions: (1) is Plaintiff speech protected speech? (2) in what type of forum did Plaintiff's speech occur? and (3) do the justifications for restricting speech proffered by Defendants satisfy the First Amendment standard applicable to the type of forum in question…. The first two inquiries are not seriously in dispute. Defendants concede that Plaintiff's speech is protected by the First Amendment and all parties agree that under governing Tenth Circuit precedent a university classroom is a nonpublic forum. Axson-Flynn v. Johnson, 356 F.3d 1277, 1285 (10th Cir. 2004).

As to the third inquiry, Defendants maintain that a university can restrict a student's curricular speech so long as the restrictions are reasonably related to legitimate pedagogical concerns. Plaintiff agrees with this standard, but with the caveat that "the 'existence of reasonable grounds for limiting access to a nonpublic forum will not save a regulation that is in reality a façade for viewpoint-based discrimination.'" If this case involved a non-curricular nonpublic forum, the Court would be inclined to accept Plaintiff's caveat about viewpoint discrimination. But this case concerns curricular speech, and in this specific context the established general rule prohibiting viewpoint-based restrictions must yield to the Court of Appeals' conclusion that "[Hazelwood School Dist. v. Kulhmeier] does not require viewpoint neutrality." Viewpoint-based restrictions on a student's curricular speech are allowed, but only if they are reasonably related to legitimate pedagogical concerns.

Plaintiff Has Adequately Pleaded a Violation of Her First Amendment Rights

The First Amendment violation in this case arises from the irreconcilable conflict between the all-views-are-welcome description of the forum and Hinkley's only-those-views-with-which-I-personally-agree-are-acceptable implementation of the forum. Plaintiff has made out a case that no reasonable educator could have believed that by criticizing lesbianism, Plaintiff's critique fell outside the parameters of the class, given the description of the class set out in the syllabus. This is not a case like Brown v. Li, 308 F.3d 939 (9th Cir. 2002), in which a student was given reasonable standards for accomplishing an assignment and consciously disregarded them. Furthermore, the forum as described by the syllabus was designed for older students, who could be expected to have the emotional and intellectual maturity to deal with controversial or even invidious opinions.

The Court questions whether a university can have a legitimate pedagogical interest in inviting students to engage in "incendiary" and provocative speech on a topic and then punishing a student because he or she did just that. Simply because Plaintiff expressed views about homosexuality that some people may deem offensive does not deprive her views of First Amendment protection. Plaintiff has made out a plausible case that Hinkley ostracized her because of Hinkley's personal disagreement with Plaintiff's ideology, and not for a legitimate pedagogical purpose. See Axson-Flynn, 356 F.3d at 1292-93 (observing that "[the court] would be abdicating [its] judicial duty if [it] failed to investigate whether the education goal or pedagogical concern was pretextual").

Plaintiff likewise has made out a plausible case against Defendant Dever, Hinkley's supervisor. Dever's warning to Plaintiff that Plaintiff would suffer "consequences" if Plaintiff continued to describe lesbianism as "barren" supports Plaintiff's allegation that Dever "ratified" Hinkley's censorship of Plaintiff's views. Plaintiff has adequately alleged circumstances demonstrating that Dever (1) possessed responsibility for the continued operation of Hinkley's unconstitutional policy of censoring Plaintiff's speech, (2) Dever consciously perpetuated the policy of censorship, thereby causing the deprivation of Plaintiff's First Amendment rights, and (3) that Dever acted to suppress a viewpoint that she, like Hinkley, found personally offensive, rather than for a legitimate pedagogical reason. Alternatively, Plaintiff has adequately alleged circumstances establishing that Dever independently violated Plaintiff's First Amendment rights while supervising the independent study course to which Plaintiff was assigned after being forced to withdraw from Hinkley's class.

The timing of Defendants' belated assertion that Plaintiff was "disruptive" and "disrespectful," together with Plaintiff's allegation that she had received A's or A-'s prior to her critique of Desert Hearts, support a plausible inference that these complaints about Plaintiff were pretextual….

The remaining question is whether Plaintiff's First Amendment rights were clearly established [so as to overcome Defendants' qualified immunity defense -EV]. Axson-Flynn clearly established that in the university setting, restrictions on school-sponsored speech must be justified "by 'legitimate' pedagogical concerns." Likewise, it was clearly established that views opposing homosexuality are protected by the First Amendment and that the government "is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government." The Court concludes that Plaintiff's First Amendment rights were clearly established as of 2012, when the operative events are alleged to have occurred….