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Ninth Circuit Cites ‘Professional Standards’ in Allowing University to Punish Student Speech

By December 30, 2015

Yesterday, the U.S. Court of Appeals for the Ninth Circuit handed down its decision in Oyama v. University of Hawaii, damaging students’ ability to exercise their First Amendment rights while enrolled in professional certification programs.

As FIRE staff members have observed before, universities sometimes punish students (or threaten to punish students) for constitutionally protected expression under the theory that it does not comport with “professional codes” or standards, in cases where students are training to be teachers or nurses, for example. While professional codes may validly regulate professional conduct, they should not be used to restrict a student’s expression of ideas with which administrators may disagree—yet that is precisely what is happening in cases like Oyama. My colleague Ari Cohn summarized the facts of the case here on The Torch in December 2013:

Mark Oyama was a student in the University of Hawaii’s (UH’s) teaching certification program, where he was required to complete a student teaching assignment. UH denied his application for a student teaching position, citing concerns about comments he made with respect to his personal views on students with disabilities and age-of-consent laws. Although Oyama was never accused of any actual misconduct, nor of expressing an intent to engage in misconduct, UH justified its denial of his application by claiming that his views were “not in alignment” with professional teaching standards.

Oyama filed a lawsuit against UH, claiming that the school’s denial of his student teaching application based on his personal views violated the First Amendment. In a troubling ruling, a federal district court judge rejected Oyama’s claims and held that UH’s denial of his student teaching application was an “academic judgment” and “reasonably related to a legitimate pedagogical purpose.”

Oyama appealed, and FIRE and the Student Press Law Center (SPLC) filed an amici curiae brief, prepared by noted First Amendment expert and University of California, Los Angeles, School of Law professor Eugene Volokh in conjunction with UCLA Law’s First Amendment Amicus Brief Clinic.The brief argued that the trial court’s decision was wrong and posed a serious risk to student free speech rights.

Unfortunately, the Ninth Circuit affirmed the lower court’s holding that UH did not violate Oyama’s First Amendment rights, holding that “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.” Oyama had expressed his commitment to obeying the law despite his personal opinions, but the court nevertheless deferred to the university’s determination that he would not properly manage situations involving potential sexual abuse or students with disabilities. Accordingly, the Ninth Circuit held that UH’s decision to deny Oyama a teaching assignment “was narrowly tailored to serve the University’s core mission of evaluating Oyama’s suitability for teaching, and reflected reasonable professional judgment.”

But as Professor Volokh wrote yesterday in response to the opinion, the holding essentially allows schools to punish any student who questions or disagrees with any laws, rules, or social norms related to the profession in which the student hopes to practice. Professor Volokh explains:

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.

FIRE shares Professor Volokh’s concerns. It is essential that college students be able to fully discuss and debate all topics, and especially matters of public concern like the ones Oyama remarked on. The need for this kind of dialogue is no less pressing because student teachers must follow certain behavioral rules once they begin teaching, or because lawyers must zealously represent their clients once they begin practicing, and so forth. In yesterday’s column, Volokh spelled out the serious ramifications of the Oyama decision:

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?

If a professional rule or a law is counterproductive, or based on a misguided rationale, a student’s freedom to speak up against the status quo benefits all parties involved. As we pointed out in our brief:

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). See Keeton v. Anderson-Wiley, 664 F.3d 865, 882 (11th Cir. 2011) (Pryor, J., concurring) (noting this as an example). 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. Cf., e.g., Ward v. Polite, 667 F.3d 727, 734-35 (6th Cir. 2012).

If the decision below is affirmed, all these students could be terminated from their academic programs. The students’ “views,” universities could argue, are “out of alignment” with the profession—or with just the portion of the profession represented on the faculty or in the administration.

The Ninth Circuit’s ruling hinders progress in all areas that require certification by institutions of higher education. Further, it imposes an even more significant restriction on free speech than that which applies to high school students under Tinker v. Des Moines Independent Community School District (1969). In Tinker, the Supreme Court of the United States held that schools could punish speech when it materially and substantially disrupted school operations or where administrators reasonably forecast such a disruption. In contrast, UH’s presumption that disagreement with or questioning of a professional norm is tantamount to professional misconduct means that universities can punish speech absent any indication that a student will actually engage in behavior that would constitute professional misconduct.

We can hope—but are not fully convinced—that the Ninth Circuit will limit application of Oyama to speech “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.” The opinion suggests that outside that context, “Oyama was free to express his opinions on any subject he wished.” But as Volokh argued yesterday, this distinction doesn’t really make sense if one accepts the court’s contention that Oyama’s stated beliefs are indicative of future misconduct. And beyond that, other courts have already stepped over the line that the Ninth Circuit purports to draw here. SPLC Executive Director Frank LoMonte contrasted Oyama with Tatro v. University of Minnesota, a 2012 case decided by the Minnesota Supreme Court that involved a student’s comments on Facebook, rather than in the classroom. The Court determined that the student’s First Amendment rights were not violated when the university punished her for speech that violated “established professional conduct standards,” even off campus. So while the facts of Oyama mean that the ruling wasn’t quite as broad as it could have been, free speech advocates will have to work hard against the trend of universities trying to expand the range of speech they can punish.

The holding and reasoning of the Oyama opinion is a troubling loss for student speech. But there is at least some silver lining. As my colleague Ari Cohn wrote in covering the case in 2013, the district court relied on the Supreme Court of the United States’ decision in Hazelwood School District v. Kuhlmeier (1988) in concluding that UH did not violate Oyama’s First Amendment rights. Hazelwood involved a high school’s censorship of a student newspaper produced as part of the school’s own curriculum. Troublingly, some courts have used Hazelwood to justify censorship of college students, too, despite the fact that college students, unlike high school students, are mostly adults, and ignoring Hazelwood’s emphasis on the age-appropriateness of the newspaper articles.

Thankfully, in the appellate decision in Oyama, Judge Kim McLane Wardlaw rejected the lower court’s reasoning that Hazelwood governs the case, explicitly noting that “the Supreme Court has yet to extend [the Hazelwood] doctrine to the public university setting.” She criticized the lower court judge’s citing of Brown v. Li, a Ninth Circuit case from 2002 in which the panel judges “vehemently” disagreed over whether Hazelwood provided the appropriate standard in cases involving college students’ speech. Since then, Judge Wardlaw wrote, the Ninth Circuit has explicitly declined to rule that Hazelwood applies on college campuses. The rest of the Oyama opinion continues under a different framework than that employed by the district court.

Considering the significant danger to free speech—particularly to the student press—that Hazelwood creates in jurisdictions where it has been applied to colleges, FIRE is glad to see Judge Wardlaw rein in the district court’s decision. We and SPLC will continue to advocate for schools, courts, and legislators to pull away from Hazelwood.

Nevertheless, the holding in Oyama is a deeply regrettable result for students who think critically and wish to speak openly about professional rules and laws that affect their future professions—and for the generations of students who could benefit from these frank discussions.

Schools: University of Hawaii at Hilo