First Amendment Groups Ask Federal Appeals Court to Overturn Hazelwood-Based Removal of Hawaii College Student

December 11, 2015

By Frank LoMonte at Student Press Law Center

Can a student be kicked out of a degree program at a public university because those in charge of his department think his ideas are outside the mainstream of his intended profession?

That’s the issue presented by a just-filed case before the Ninth U.S. Circuit Court of Appeals in California, involving a student dismissed from a student-teaching program at the University of Hawaii.

The SPLC joined our friends at FIRE, the Foundation for Individual Rights in Education, in filing a friend-of-the-court brief this week in the case of Oyama v. University of Hawaii, urging the appeals court to protect the rights of college students to safely voice opinions that challenge and even contradict the mainstream beliefs in their field.

Noted First Amendment litigator and legal blogger Eugene Volokh prepared the FIRE/SPLC brief in collaboration with law students at the UCLA School of Law First Amendment Amicus Brief Clinic, and we commend it to your reading.

The case is not about journalism, but it directly affects the welfare of student journalists in Hawaii and, potentially, in the nine western states encompassed by the Ninth Circuit. That’s because the U.S. district court evaluated Mark Oyama’s First Amendment claims under the Supreme Court’s precedent in Hazelwood School District v. Kuhlmeier, under which school censorship decisions receive near-total judicial deference.

Hazelwood, a case about the rights of minors in a teacher-supervised newsroom, is categorically unsuited to a case about the out-of-class remarks of an adult-aged college student, and the Ninth Circuit should say so unequivocally.

Oyama was denied permission to complete the student-teaching assignment that he needed to earn his degree from Hawaii’s College of Education. Although the decision was partly based on poor performance evaluations, Oyama was told that at least part of the rationale was his unorthodox views about (as described by the district court) “students with disabilities and the appropriateness of sexual relations with minors.”

A federal district judge threw out Oyama’s First Amendment claims in April 2013, and the current appeal followed.

In the brief filed Tuesday with the San Francisco-based Ninth Circuit, FIRE and the SPLC argue that the district court dangerously misstated the level of constitutional protection that a student at a public college should have for remarks made in a private, outside-of-class setting:

If the district court’s decision is affirmed, universities will be similarly empowered to dismiss students from a wide range of programs for holding views that the administration simply dislikes or otherwise sees as ‘not in alignment with standards set by’ the government or the administrators. … The inevitable consequence of such policies would be that students would know not to express themselves on certain topics, for fear that they will be dismissed from academic programs and thus be unable to enter their chosen professions. Indeed, rational students would be deterred not just in their speech on campus, but also in anything they publish or say, whether online, in letters to the editor, or for that matter in casual conversation.

The case raises significant philosophical questions about whether being a “bad fit” for a profession should be grounds for a college to stop a student from earning a degree in the field (especially a student like Oyama, who’d invested years of study and tens of thousands of dollars toward a degree he may never be allowed to complete).

People enroll in degree programs for reasons other than an intent to actually enter the profession. A corporate executive might get a law degree to enhance her chances at promotion to upper management. A journalist might pursue a law degree to bolster his credentials as a legal commentator. Should those people be kicked out of law school if they don’t fully embrace the prevailing norms of a profession they have no intention of joining? And in any event, shouldn’t that decision be left up to the standard-setting bodies, such as state Bar associations, who conduct background checks, administer licensing exams, and enforce compliance with professional ethics?

In Oyama’s case, the (rather slender and unhelpful) court record indicates that he alarmed his superiors by expressing disturbing opinions. But the record doesn’t say Oyama acted on those beliefs in a way detrimental to children or manifested an intent to do so.

In a 2011 case involving the removal of a Georgia college student prevented from completing her degree in school counseling because of her religious-based inability to work with gay students, federal appeals-court judge William Pryor ably explained what is at risk if colleges act as “gatekeepers” to enforce compliance with the professional dogma of the day:

A few decades ago, a prevailing view of the psychiatric profession maintained that homosexuality was a treatable mental disorder. … [T]he prevailing view changed. This shift in psychiatric orthodoxy occurred largely because professionals who has been taught that homosexuality was a disease of the mind, but who rejected that view, argued successfully that the psychiatric diagnostic criteria should be amended.

Pryor’s point is: The established beliefs in a profession at any given time can be wrong, and the error can be overturned only if people not sharing those beliefs are allowed into the profession to advocate for change.

The district court misapplied the law in a way that puts all college students at risk of viewpoint-based disciplinary removal. For that reason, the Ninth Circuit should send the case back for consideration under a more speech-protective standard.

Schools: University of Hawaii at Hilo