Ala. court applies Hazelwood in college student's First Amendment case

ALABAMA — A U.S. district court has applied Hazelwood v. Kuhlmeier to support the dismissalof an Auburn University at Montgomery nursing student.

The university dismissed Judith Heenan from the school of nursingin 2007 after she continually spoke out against the school’s disciplinarysystem, which allows instructors to penalize students for unsafe practices inthe classroom setting. Students are given one “point” per violation.

According the university, Heenan was dismissed “for failingto complete classroom tasks adequately, for performing poorly in clinicalevaluations and for exhibiting unprofessional behavior in a professional environment.”

Heenan contends she was singled out by the university’sfaculty because of her criticism of the point system and that her First andFourteenth Amendment rights were violated.

In a Dec. 27 opinion, Judge Myron Thompson analyzed the caseunder the 1988 high school censorship standard of Hazelwood. He found “the maintenance of a grading and disciplinarysystem that allows the school to graduate competent nurses is clearly‘reasonably related to legitimate pedagogical concerns.’”

Heenan enrolled in the AUM School of Nursing in 2004. Duringher time in the nursing program she accrued four disciplinary points, the lastone coming in spring 2007.

Thompson referenced the four points—the maximum numberallowed before an advisory committee meets to discuss potential dismissal—sayingthey came from four separate instructors because of Heenan’s “performance inthe classroom.”

Heenan asked the court to reconsider its ruling. The StudentPress Law Center filed a friend-of-the-court brief expressing concern over thejudge’s application of Hazelwood.

In a Jan. 26 opinion, Thompson conceded “the court failed todraw a distinction between Heenan’s grievances that were expressed innurse-training related circumstances and those that were not.” He concluded,however, that “the evidence is still overwhelming that she was dismissed forproper reasons totally unrelated to her speech.”

Frank LoMonte, SPLC executive director, said he’s glad theoriginal decision was restricted but the modified opinion still poses issues.

“The original decision was really worrisome because itopened up the possibility that any criticism of school curriculum—anywhere,anytime—would be unprotected speech. That’s pretty clearly not the law, and ifthat became the law it would effectively spell the end of independentjournalism,” LoMonte said. “It’s a relief that the judge came back in amodified opinion and significantly reined in the reach of the initialdecision. I think it’s very clear now that the rule is limited to talkingdirectly back to your instructor in the middle of a teaching session. So asamended I think the ruling leaves intact the core First Amendment protectionfor journalistic activities.”

He said the Hazelwoodstandard was not created for students like Heenan, who is in her 50s.

“I think it should have been a factor that the Hazelwood rule — which was created toprotect impressionable 15-year-olds — is of very limited usefulness when thestudent is in her 50s,” LoMonte said. “I think this case really exemplifies whyHazelwood is the wrong standard forcollege and especially for graduate level education because you are talkingabout people who at times are middle-aged adults.”

The deadline to appeal the decision to the 11th U.S. CircuitCourt of Appeals is Feb. 25.

Heenan could not be reached for comment and her attorney, GaryAtchison, declined to comment.

Attorneys for the university could not be reached forcomment.