Okay to Dismiss Professional School Students for Expressing ‘Views … Deemed Not in Alignment With Standards Set by’ Government Authorities

December 29, 2015

By Eugene Volokh at The Washington Post

1. Mark Oyama was a student at the University of Hawaii’s secondary school teacher certification program. In the course of his studies, he made various statements — in class assignments and to teachers outside class — about (a) adult-child sex and (b) the teaching of disabled children.

For instance, Oyama wrote in one paper that “Personally, I think that online child predation should be legal, and find it ridiculous that one could be arrested for comments they make on the Internet. I even think that real life child predation should be legal, provided that the child is consentual [sic]. Basically from my point of view, the age of consent should be either 0, or whatever age a child is when puberty begins.”

He also said “that ‘it would be fine’ for a twelve-year-old student to have a ‘consensual’ relationship with a teacher.” Oyama acknowledged that the law required teachers to report such relationships when they learn of them, and “Oyama stated that he would obey the law and report the relationship, but still believed that such a ‘consensual’ relationship was not wrong.”

Oyama also took the view that “if [a child’s] disability is sufficiently severe and not of a physical nature … there is little benefit to inclusion for the disabled student” in a normal class. He “wrote that it is not reasonable to expect secondary school teachers to have the ‘extremely diverse skillset’ needed to teach the range of grade levels presented in a mainstream classroom that includes students with learning disabilities.” And he “asserted that nine of ten special education students he encountered were ‘fakers’ and explained that he was ‘not convinced that many ‘disabilities’ are actual disabilities or medically-based neurological conditions, but are rather the crude opinions of psychologists and psychiatrists.’” (Oyama also seemed to have performed poorly as a trainee teacher, but the Ninth Circuit’s opinion didn’t focus on that.)

Based in large part on these statements, Oyama was denied admission to the student teaching program, which meant that he couldn’t get a teaching certificate. Dr. Moniz explained, when informing Oyama of the decision, that, among other things,

[T]he views you have expressed regarding students with disabilities and the appropriateness of sexual relations with minors were deemed not in alignment with standards set by the Hawaii Department of Education, the National Council for the Accreditation of Teachers (NCATE) and the Hawaii Teacher Standards Board (HTSB).

2. This morning, the Ninth Circuit upheld Oyama’s rejection, because “universities may consider students’ speech in making certification decisions, so long as their decisions are based on defined professional standards, and not on officials’ personal disagreement with students’ views.”

a. The court reasoned that (some paragraph breaks and emphasis added throughout these block quotes):

The University’s decision was directly related to defined and established professional standards. Two sets of professional standards provided the foundation for the University’s decision: one governing sexual relationships with children and another governing the education of disabled students…. To protect a student’s “safety,” a secondary school teacher must protect underage students from sexual contact with adults, which may qualify as first-degree sexual assault under Hawaii law….

[And the university’s] national accreditation body mandates that student teachers demonstrate “professional dispositions necessary to help all students learn,” including students with disabilities. See also Nat’l Council for Accreditation of Teacher Educ., Standards for Professional Development Schools 25 (2001) (explaining that accredited programs must “reflect issues of equity and access to knowledge by diverse learners”). Moreover, the HTSB requires all student teachers to “[p]rovide services to students in a nondiscriminatory manner” and “[a]dapt[] instruction to students’ differences in development, learning styles, strengths and needs.”

The First Amendment does not prevent the University from denying Oyama’s student teaching application after determining that his statements reflected a failure to absorb these defined and established professional standards…. [T]he scope of the government’s authority to regulate speech within its institutions depends upon the objectives those institutions are designed to achieve….

We emphasize that the University did not “establish” or “define” these professional standards by fiat. Its decision was not … based on school policies untethered to any external standards, regulations, or statutes governing the profession. Instead, the University relied upon standards established by state and federal law, the Hawaii Department of Education, the HTSB, and the University’s national accreditation agency, the NCATE….

That Oyama did not in fact consummate the acts proscribed by these professional standards does not mean that the University’s decision to deny his application was not directly related to them. State policy required the University to “[v]erify” Oyama’s “ability to function effectively in Department classrooms” before approving his student teaching application. Therefore, the University’s decision was, by necessity, prospective in nature.

Oyama stood in the doorway of the teaching profession; he was not at liberty to step inside and break the house rules. But that does not mean that the University was obligated to invite him in.

Rather, the University could look to what Oyama said as an indication of what he would do once certified. Oyama’s statements concerning “child predation” and “inclusion” of disabled students suggest that he had not internalized basic concepts embodied in the relevant external standards — the nature of sexual predation on children, for example, or the importance of including and supporting disabled students. The University need not — and, consistent with its mandate under state policy, could not — have approved Oyama’s application and sat idly by while his failure to accept basic professional standards led to results these standards were designed to prevent.

For example, with regard to the sexual abuse of children, Oyama’s belief that young children can meaningfully “consent” to sexual activity with adults, and failure to appreciate the lifelong impact on victims of child sexual abuse, could well impede him from recognizing signs of such abuse in his students or evidence of such abuse by school personnel. His promise to report illegal abuse is therefore beside the point; he can only report what he perceives, and his attitudes could well stand in the way of his perception.

Similarly, with regard to teaching disabled children, the University was entitled to regard Oyama’s insistence that most disabilities are feigned and that requiring high school teachers to educate disabled students is unreasonable as indicators that he would not make the effort to identify students with disabilities or adjust his lessons for individual students whose disabilities require special accommodations. Given these legitimate concerns, the University could “tak[e] action” and deny Oyama’s application before permitting him to enter the classroom as a student teacher.

b. The Ninth Circuit also concluded that, to be valid, “the University’s decision was narrowly tailored to serve the University’s purpose of evaluating Oyama’s suitability for the teaching profession.” “Adopting a narrow tailoring requirement in this context, we ensure that the University does not transform its limited discretion to evaluate a certification candidate’s professional fitness into a open-ended license to inhibit the free flow of ideas at public universities.”

And the Ninth Circuit concluded that:

The University’s decision was narrowly tailored to serve its goal of “employ[ing] and prepar[ing] educators who are knowledgeable, effective, and caring professionals.” The University’s decision primarily rested on Oyama’s statements endorsing sexual relationships between children and adults, online and in “real life,” and his statements expressing apathy towards disabled students and an unwillingness to accommodate their classroom needs. These statements related directly to his suitability for teaching.

By contrast, the record does not suggest that the University based its decision on speech unrelated to teaching. The University did not, for example, rely on upon several of Oyama’s statements that may seem bizarre but have no relationship to the teaching profession — such as his statements that he “came from outer space” or “thinks about suicide every day.”

Nor did the University, based on the record before us, rely on statements addressing “social, political, esthetic, moral, and other ideas and experiences” that are unrelated to teaching but essential to the marketplace of ideas. Thus, rather than relying on any statement, no matter the subject, as a basis for its certification decision, the University limited its focus to Oyama’s statements that directly addressed the roles and responsibilities of aspiring secondary school teachers.

Furthermore, the University based its decision only upon statements Oyama made in the context of the certification program — in the classroom, in written assignments, and directly to the instructors responsible for evaluating his suitability for teaching… There is no evidence that the University relied upon any statements Oyama may have made outside this context or communicated to a broader audience.

Nor is there any evidence that the University attempted to restrict or take any adverse action in response to Oyama’s expressive activities in other campus-related contexts, such as meetings with other students or protests to university officials. Beyond the limited context in which Oyama made the statements that supported the University’s decision, Oyama was free to express his opinions on any subject he wished. Accordingly, the University’s decision did not impose any restriction broader than necessary to achieve its goal of evaluating Oyama’s suitability for teaching.

c. And the Ninth Circuit added that “the First Amendment also requires us to ask whether the University’s decision reflects reasonable professional judgment about Oyama’s suitability for the teaching profession.”

[N]ot all inconsistencies between a candidate’s statements and defined and established professional standards provide a reasonable basis to conclude that the candidate is not suitable to enter the profession. For example, the statement, “I hate cleaning my office” may be in tension with a professional standard to “keep the office tidy” but may not be a reasonable basis to conclude that the speaker is not fit to enter the profession. Absent this inquiry, the University could use professional standards as a pretext for decisions based on officials’ personal disagreement with the candidate’s views….

The University’s decision to deny Oyama’s application satisfies this [reasonable professional judgment] requirement. First, the University had every reason to conclude that Oyama’s statements concerning sexual relationships between teachers and students were “serious matters of concern.” … [S]exual abuse “unfortunately is an all too common aspect of the educational experience.” … “[M]ore than 4.5 million students are subject to sexual misconduct by an employee of a school sometime between kindergarten and 12th grade.”

The federal government has attributed this problem, in part, to school officials’ recommendations of teacher candidates despite warning signs of the candidate’s potential to abuse students. In one example highlighted by the Government Accountability Office, school officials recommended a teacher for service despite complaints that he had accessed pornography on school computers; the teacher was subsequently convicted of sexually assaulting two students. A perfectly reasonable way to prevent similar tragedies at Hawaii schools is to decline certification to candidates who vocally support sex between teachers and their twelve-year-old students.

We put aside the risk that Oyama would himself abuse a student; his statements do not sufficiently support such a prediction, and we see no evidence that the University denied his application on the basis of this risk. Rather, the University could reasonably conclude that Oyama would fail to perceive, or to exercise the vigilance needed to identify and report, potential or actual sexual abuse of students by other adults. The University recognized these risks and appropriately made a decision, as Dean Sorensen put it, “not to place young children in harm[’]s way.”

The University’s concern with Oyama’s statements regarding disabled students was likewise well-founded… The University could reasonably conclude that a candidate who expresses his view that special education students are “fakers” to his professors would lack the professional disposition necessary to identify disabled students and teach all students, including those with disabilities. The University could also reasonably conclude that a candidate who considers it unreasonable to teach both disabled and non-disabled students would not put in the effort to “provide services to students in a nondiscriminatory manner” as a teacher.

3. My thinking: I appreciate the university’s — and the Ninth Circuit’s — concerns. A person’s viewpoints are indeed potential predictors of his future behavior.

But at the same time, and despite the Ninth Circuit’s attempt to impose some limits on its “professional standards” rationale, this sort of analysis is poison to academic freedom. As my students and I argued in an amicus brief that we filed on behalf of the Foundation for Individual Rights in Education and the Student Press Law Center in this case, the court’s rationale could let universities suppress a vast range of student speech.

Lawyers, for instance, have various professional obligations in many states, including not to discriminate based on race, religion, sexual orientation, sex and the like. Indeed, they have a constitutional obligation not to discriminate based on race and sex in juror selection. Under the Ninth Circuit’s decision, then, a law school might be able to deny a student a diploma because he expressed strong doubts about these rules (much as Oyama expressed doubts about disabled student education law), or about civil rights law more generally.

Similarly, lawyers have duties to zealously advocate for their clients. Law professors might rationally think that a socialist student who thinks that “all property is theft,” and who thinks our legal and political system is fundamentally corrupt, might ill-serve his clients, or might even violate the legal rules in pursuit of radical change. Likewise, law professors might think that a student who bitterly condemns the adversarial system, and thinks that all citizens — including lawyers — must serve the common good rather than their clients, would be a bad lawyer and might eventually violate the ethical obligations imposed on lawyers.

Before 1974, homosexuality was seen by the psychiatric profession as a mental illness. During that era, professors might have thought that a student who thought that homosexuality is normal showed a lack of good medical judgment, and might well counsel and treat patients in irresponsible ways (by the standards of the profession of the time). Today, professors might think the same of a student who thinks homosexuality is improper. They may worry that the student will discriminate against gay and lesbian patients — even if the student assures her instructors that she would follow all the professional obligations imposed on her.

Likewise, think of how business schools, social work schools and many other departments — and the professional regulatory bodies with which they deal — could use the University of Hawaii’s reasoning, now validated by the Ninth Circuit. Think of how many other views might be suppressed on the grounds that they are “deemed not in alignment” with professional rules, especially once professional organizations realize that they have the power to effectively authorize such speech restrictions.

The Ninth Circuit’s case can’t be limited to the especially high risks posed by the threat of sexual molestation of children. The Ninth Circuit itself makes clear that its reasoning isn’t limited to speech about adult-child sexual relationships, but also applies to speech about the seriously debated and rightly controversial subject of how to educate disabled children.

And of course the chill created by such decisions extends far beyond cases in which students actually are expelled (or denied access to parts of their educational programs, which amounts to the same thing) based on their speech. Smart students will realize, when they hear about incidents such as Oyama’s, that they had better just avoid expressing certain views, simply because of the risk that what happened to Oyama (and others like him) will happen to them.

Ask yourself: If you were a trainee teacher at the University of Hawaii, or at other universities, would you express any doubts to teachers or classmates about the orthodox views on educating the disabled? Would you express any doubts about sex equality, or racial equality, or even affirmative action or rules related to transgender students? Or would you be reasonably concerned that — even if you assure people that you will follow the rules, including ones you see as misguided — you might get kicked out of the program for what you say, and think that this is reason to steer wide of the unlawful zone (to adapt Justice Brennan’s words from Speiser v. Randall)? And, when people who express certain views face the risk of being kicked out based on those views, how can we expect anything but one-sided classroom discussions?

Nor should we be much reassured by the Ninth Circuit’s stress on Oyama’s saying these things in class assignments or in conversation with teachers, as opposed to speech in “meetings with other students or protests to university officials.” The broader rationale of the Ninth Circuit’s opinion is that Oyama could be excluded from the program because his speech was evidence of his likely future misconduct (e.g., failure to report sexual molestation, or discrimination against disabled students). Speech outside class can be equally strong evidence of such misconduct. And beyond that, conversations with teachers or with classmates in class (and not just on graded assignments, where some quality evaluation is inevitable) are an important aspect of academic freedom.

So I think this is a very dangerous decision, not just on its own facts but on what it signals to university administrators for the future. Expect many more situations in the future in which students are kicked out of higher education programs for “views … deemed not in alignment with standards set by” government authorities.

Schools: University of Hawaii at Hilo