Requiring Public High School Student to Perform Monologue by Classmate May Be Unconstitutional Speech Compulsion

The monologue was sexually themed, but it's not clear to what extent the court's rationale might extend to situations where a student objects to the monologue for other reasons.

From Judge Jennifer Dorsey's decision today in Evans v. Hawes (D. Nev.):

In March 2022, Las Vegas Academy (LVA) drama teacher Kelly Hawes required her students to write a monologue that would then be performed by a fellow classmate. Hawes reviewed, edited, and approved each monologue, then printed all of them and instructed her students to pick one at random from the pile. Hawes told the students that they could not select their own monologue and "could only exchange a selected monologue one time."

R.E., the minor daughter of plaintiffs Terrance and Candra Evans, did not like the first monologue she picked, so she chose another. Her second pick was written from the perspective of "a girl coming out as a lesbian to her boyfriend." It contained sexually explicit language concerning the girl's interest in her female roommate and her disinterest in having sex with men. "Because R.E. had already used her one and only turn to exchange the first monologue she selected, R.E. believed she had no option but to study, memorize, and perform" the explicit monologue. The plaintiffs allege that R.E. knew Hawes had already edited and approved the monologue and that "her grade was conditioned upon her performing the monologue in front of the class." So R.E. performed the monologue, allegedly not understanding some of the sexually explicit content it contained.

About a month later, Candra discovered the written monologue and confronted her daughter about it. When she learned that it was a school assignment R.E. was required to perform, Candra hightailed it to her daughter's school and spoke to Assistant Principal Joshua Hager. He agreed that the monologue was inappropriate and told Candra that he wanted to meet with R.E. "to let her know that she could tell a teacher 'no'" if she felt uncomfortable with an assignment….

The Evanses sued on various grounds, including that the teacher's actions were an unconstitutional speech compulsion, and the court allowed that claim to go forward:

The Ninth Circuit has not had the occasion to determine which standard should apply to inappropriate speech that is compelled as part of a student's curriculum. I find persuasive the Tenth Circuit's opinion in Axson-Flynn v. Johnson, which grappled with this issue and reasoned that Hazelwood provides the best-fitting framework for this scenario.

In Axson-Flynn, and much like this case, a university theater program compelled a student to perform monologues containing language that the student objected to on religious grounds. The panel determined that the monologue didn't fall under Tinker, as that case addressed "pure student expression that a school must tolerate unless" it leads to a disruption of school activities, but Axson-Flynn's compelled speech "occurred in the classroom setting in the context of a class exercise and did not simply happen to occur on the school premises."

Because the monologue assignments were part of the theater program's curriculum, the Axson-Flynn court applied Hazelwood and found that the school could proscribe or compel that speech if it had a legitimate pedagogical purpose to do so. The court ultimately concluded that "the school sponsored the use of plays with [] offending language in them as part of its instructional technique" to prepare "students for careers in professional acting" and refused to second-guess the "pedagogical wisdom" of that goal. I follow the Tenth Circuit's well-reasoned lead and apply the Hazelwood standard to R.E.'s compelled-speech claim….

Plaintiffs allege that the profanity-laden monologue not only did not advance any academic purpose but "flies in the face of that compelling government interest." They cite to CCSD's policy prohibiting "verbal abuse of a student by an employee," which is defined to include "the use of any form of profanity in the classroom," and to the student code of conduct, which prohibits "content that is profane and/or of an obscene nature," to suggest that CCSD has no pedagogical leg to stand on. While those policies do not directly foreclose the use of profanity in assignments that may serve an academic purpose—for example, having students read a literary classic that contains swear words or sexual themes in order to broaden their perspectives—plaintiffs sufficiently allege that requiring this particular assignment did not fulfill a legitimate educational purpose within the context that it was placed: a high school classroom.

Courts considering whether school-compelled speech serves a legitimate educational purpose have recognized that it depends on the age and maturity of the students involved and their ability to "learn the lessons the [assignment] is designed to teach." CCSD also does not provide the contours of the purported educational purpose that this assignment was meant to fulfill. It instead relies on general statements of law, made in cases dissimilar from this one, cautioning judicial restraint when courts are asked to interfere with a school's curriculum.

But the defendants do not point to any case that holds that courts must simply take schools at their word that every assignment fulfills a legitimate purpose merely because it was on the curriculum, particularly in a situation like this one, in which the type of language contained in that curriculum is similar to language which the Supreme Court has held is a school's prerogative to proscribe [citing Bethel School Dist. No. 403 v. Fraser (1986)]. And plaintiffs have alleged that at least two CCSD administrators agreed that the assignment was inappropriate and may not have complied with school policy, calling into question whether CCSD officials believed that this monologue was academically proper and thus whether it served a legitimate pedagogical purpose. So, at this early stage in the proceedings, I allow R.E.'s First Amendment claim to proceed against CCSD….

Here's more on the court's treatment of Fraser, in which the Supreme Court upheld punishment of a student for the student's own sexually themed speech:

Fraser was concerned with unsanctioned student speech containing lewd language and focuses on the necessity of a school's ability to impose discipline "for a wide range of unanticipated conduct disruptive of the educational process." So it does not provide helpful guidance when analyzing R.E.'s case, in which the school sanctioned a student's explicit speech and allegedly threatened punishment if R.E. didn't comply. However, because this case involve students of approximately the same age as those in Fraser, and given Fraser's focus on the importance of shielding young minds from perverse speech, I keep in mind Fraser's sentiment that "[a] high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students," while analyzing R.E.'s claim.

I'm not sure this analysis is entirely correct, but I'm glad that the court recognizes that teachers can generally require students to perform important works even when they contain words or ideas the student disapproves of. I think the court here is influenced not just by the sexually themed character of the compelled speech, but by the speech being required just because it's reading a classmate's work, and not because of any evaluation of the work's literary significance. Query whether that should suffice for concluding that the drama teacher couldn't constitutionally require the student to perform it.