A district court in New Mexico recently denied the University of New Mexico’s motion to dismiss a suit brought by a student disciplined for condemning lesbianism in a reflection paper for a course. The syllabus for the course, “Images of (Wo)men: Icons and Iconoclasts,” had advertised “controversy built right into the syllabus.” At first, the court’s decision may be a no-brainer, but the professor characterized the student’s speech as “hate speech,” inflammatory and offensive, and the Board of Regents argued that the professor refused to grade the paper for legitimate pedagogical reasons.
The University of New Mexico student ultimately withdrew from the class because of the professor’s refusal to assign a grade to her paper and the professor’s continuing hostility. The professor’s supervisor took on the student as an independent study student, but the supervisor, too, exhibited hostility toward the student. The student alleged that the Board of Regents of the University had violated her rights to freedom of speech.
The court accepted without dispute that the student had a First Amendment right to freedom of speech in the context of the nonpublic forum of the university classroom. However, the Board of Regents argued that the doctrine of qualified immunity should protect the professor and supervisor from liability because the parameters of that freedom of speech are unsettled where, as here, legitimate pedagogical concerns are implicated.
The court responded by citing the Tenth Circuit’s 2002 ruling in Fleming v. Jefferson School District R-1, that, “Hazelwood does not require viewpoint neutrality.” The Supreme Court’s 1988 Hazelwood v. Kuhlmeier decision approved a high school principal’s censure of a school newspaper produced in journalism class, and, therefore, arguably was not wholly on point.
The court concluded that the Board of Regents’ argument for a legitimate pedagogical exception was merely a pretext for viewpoint-based discrimination, stating that, “The First Amendment violation in this case arises from the irreconcilable conflict between the all-views-are-welcome description of the forum and [the professor’s] only-those-views-with-which-I-personally-agree-are-acceptable implementation of the forum.”
The syllabus guarantee of controversy as a central element of the course precluded depriving the student of her First Amendment right to condemn lesbianism. The court also faulted the professor’s supervisor for her inadequate response to the professor’s action and her own continued hostility toward the student.
The court further concluded that qualified immunity was not available for the professor or supervisor because students’ rights to freedom of speech in the university setting were clearly established by the Supreme Court ruling in Boy Scouts of America v. Dale.
The court explained that the judiciary may override an educator’s judgment where the proferred goal was a pretext for punishing a student for her political views, citing Regents of the University of Michigan v. Ewing, as referenced in the Tenth Circuit’s 2004 decision Axson-Flynn v. Xan Johnson.
While the New Mexico court’s citations to authority employing the K-12 Hazelwood and the Boy Scouts decisions are perhaps unexpected, the court was very clear in its ruling. Professors and Deans, be careful what your syllabi promise. If your syllabi promise to respect student opinions, be prepared to respect student opinions with which you disagree, unless you can enunciate a truly legitimate pedagogical concern. Such a legitimate pedagogical concern may more reasonably apply in the K-12 context, but in a university course specifically designed to elicit and examine differing opinions among older, mature students, the specter of pretext looms large over so-called “legitimate pedagogical concerns.”
Court Decision: Pompeo v. Board of Regents of the University of New Mexico, Case No. 1:13-cv-00833, D.N.M., Decided Sept. 29, 2014, Justice Christina Armijo
This Collegiate Comment is a publication of the KingSpry Higher Education Law Division. It is meant to be informational and does not constitute legal advice.
Be Careful What Your Syllabus Promises!
Posted on January 26th, 2015
by Dr. Kathleen Conn
A district court in New Mexico recently denied the University of New Mexico’s motion to dismiss a suit brought by a student disciplined for condemning lesbianism in a reflection paper for a course. The syllabus for the course, “Images of (Wo)men: Icons and Iconoclasts,” had advertised “controversy built right into the syllabus.” At first, the court’s decision may be a no-brainer, but the professor characterized the student’s speech as “hate speech,” inflammatory and offensive, and the Board of Regents argued that the professor refused to grade the paper for legitimate pedagogical reasons.
The University of New Mexico student ultimately withdrew from the class because of the professor’s refusal to assign a grade to her paper and the professor’s continuing hostility. The professor’s supervisor took on the student as an independent study student, but the supervisor, too, exhibited hostility toward the student. The student alleged that the Board of Regents of the University had violated her rights to freedom of speech.
The court accepted without dispute that the student had a First Amendment right to freedom of speech in the context of the nonpublic forum of the university classroom. However, the Board of Regents argued that the doctrine of qualified immunity should protect the professor and supervisor from liability because the parameters of that freedom of speech are unsettled where, as here, legitimate pedagogical concerns are implicated.
The court responded by citing the Tenth Circuit’s 2002 ruling in Fleming v. Jefferson School District R-1, that, “Hazelwood does not require viewpoint neutrality.” The Supreme Court’s 1988 Hazelwood v. Kuhlmeier decision approved a high school principal’s censure of a school newspaper produced in journalism class, and, therefore, arguably was not wholly on point.
The court concluded that the Board of Regents’ argument for a legitimate pedagogical exception was merely a pretext for viewpoint-based discrimination, stating that, “The First Amendment violation in this case arises from the irreconcilable conflict between the all-views-are-welcome description of the forum and [the professor’s] only-those-views-with-which-I-personally-agree-are-acceptable implementation of the forum.”
The syllabus guarantee of controversy as a central element of the course precluded depriving the student of her First Amendment right to condemn lesbianism. The court also faulted the professor’s supervisor for her inadequate response to the professor’s action and her own continued hostility toward the student.
The court further concluded that qualified immunity was not available for the professor or supervisor because students’ rights to freedom of speech in the university setting were clearly established by the Supreme Court ruling in Boy Scouts of America v. Dale.
The court explained that the judiciary may override an educator’s judgment where the proferred goal was a pretext for punishing a student for her political views, citing Regents of the University of Michigan v. Ewing, as referenced in the Tenth Circuit’s 2004 decision Axson-Flynn v. Xan Johnson.
While the New Mexico court’s citations to authority employing the K-12 Hazelwood and the Boy Scouts decisions are perhaps unexpected, the court was very clear in its ruling. Professors and Deans, be careful what your syllabi promise. If your syllabi promise to respect student opinions, be prepared to respect student opinions with which you disagree, unless you can enunciate a truly legitimate pedagogical concern. Such a legitimate pedagogical concern may more reasonably apply in the K-12 context, but in a university course specifically designed to elicit and examine differing opinions among older, mature students, the specter of pretext looms large over so-called “legitimate pedagogical concerns.”
Court Decision: Pompeo v. Board of Regents of the University of New Mexico, Case No. 1:13-cv-00833, D.N.M., Decided Sept. 29, 2014, Justice Christina Armijo
This Collegiate Comment is a publication of the KingSpry Higher Education Law Division. It is meant to be informational and does not constitute legal advice.