A federal court in Hawaii has become the latest to apply the Supreme Court’s Hazelwood standard — a ruling about the rights of kids attending K-12 schools — to the First Amendment claims of an adult-age college student.
In a ruling issued last month, a federal district judge threw out the claims of a University of Hawaii senior, Mark L. Oyama, who was rejected for a student-teaching assignment necessary to qualify for a teaching credential.
Oyama claimed that the school impermissibly punished him for expressing viewpoints that the school deemed contrary to the standards of the teaching profession.
In the ruling, Judge Helen Gillmor heavily cited the Supreme Court’s censorship-friendly ruling in Hazelwood School District v. Kuhlmeier — a case that courts increasingly are applying at the college level, even though the Hazelwood Court was careful to avoid saying anything about the rights of students beyond K-12.
Oyama’s case itself is factually not all that remarkable. Oyama received multiple unsatisfactory performance evaluations indicating unreadiness to teach, most of which were about his teaching ability and not his opinions. With that record, proving that his removal from the program was the result of protected First Amendment speech was a steep climb.
Oyama claimed that the school impermissibly punished him for voicing opinions dissenting from his instructors’ views. (The substance of the disagreement, and the setting in which the comments were made, doesn’t appear in the court’s April 23 opinion. But the school told Oyama specifically that his comments “regarding students with disabilities and the appropriateness of sexual relations with minors” were inconsistent with professional ethical codes and state licensing standards.)
What is noteworthy about the case is the judge’s heavily reliance on Hazelwood — a 1988 ruling that gave schools greater leeway to censor the speech of K-12 students.
The Supreme Court specifically said in Hazelwood that the deference shown to censorship decisions at the high school level might be unsuitable in the adult world of a college campus:
We need not now decide whether the same degree of deference is appropriate with respect to school-sponsored expressive activities at the college and university level.
Hazelwood, a case arising out of a St. Louis-area high school newspaper, was about a school’s right to control the use of its own “curricular” property (a newspaper, a yearbook, a school concert or play) as a means of distributing student views to an audience that might regard the speech as officially school-approved.
The Hazelwood doctrine does not seem at all applicable to cases, such as Oyama’s, where the student is exchanging views in private conversation with his instructors. Oyama did not attempt to use a school-funded platform to distribute speech to a listening audience that might be misled. None of Oyama’s professors believed that his responses to their questions were officially school-approved messages.
Hawaii is part of the federal Ninth Circuit, widely considered the most liberal circuit. The Ninth Circuit has never conclusively decided whether Hazelwood is the right legal standard for colleges’ authority over their students.
But Judge Gillmor — noting that Hazelwood has been applied to claims brought by college students in four other circuits — appeared to assume that the University of Hawaii had the broad censorship latitude recognized in Hazelwood. Taking a phrase right out of Hazelwood, Judge Gilmor said the university’s dismissal of Oyama was lawful because enforcing the standards of the teaching profession was “reasonably related to a legitimate pedagogical purpose.”
This was exactly the concern of First Amendment advocates when — in a sloppily reasoned opinion involving facts somewhat analogous to Oyama’s — the federal Sixth Circuit decided last year that Hazelwood permitted a Michigan university to punish a student counselor trainee for her religious-based refusal to counsel students experiencing gender-identity issues. The appearance of a growing consensus around Hazelwood as the catch-all standard for all students — even those in post-baccalaureate professional programs — risks subjecting middle-aged adults to a level of school “thought control” that is questionably appropriate even for children.
While it is not strictly a First Amendment issue, the courts have yet to fully and satisfactorily grapple with when it is permissible to remove someone from an academic course of study simply because the person appears to be a poor candidate for success in the field.
We would not expect, for instance, that a student who consistently tripped over her own feet or forgot her lines could be expelled from a college’s drama program because her instructors deemed her unlikely to succeed as a performer. She might receive low grades or be passed over for casting in prime roles, but if she were determined to obtain the degree, the school would indulge her.
Many people obtain academic credentials for reasons other than an intent to practice that occupation professionally. A hopelessly untalented painter still might want an art degree to improve her chances of getting hired as a museum administrator or as a critic. A business executive might pursue a law degree to improve her shot at being promoted to upper management.
The stakes admittedly are different when the profession involves the welfare of vulnerable people. Audience members can overlook a stumble-footed dancer, but a teacher, doctor or lawyer who refuses to observe professional protocols can put lives at risk.
Still, there are also risks in enforcing the current standards of any profession as an absolute bar to obtaining a degree in the field.
Oyama might not be teacher material — indeed, he might never satisfy the professional entry requirements or get his first teaching job — but he might have opinions about modernizing the rules of the profession that will be taken seriously only if he speaks with the authority of a degree-holder. Letting only those who accept the existing state of professional standards complete a course of study in the profession is likely to promote stagnation.
There is a difference between expressing dissent from the prevailing standards of the profession (which colleges should welcome and encourage) versus refusing to act consistently with those standards to the detriment of the public. It was incumbent on the University of Hawaii to prove not just that Oyama held beliefs questioning the tenets of the teaching profession, but that he was prepared to act on those beliefs.
Because Oyama was actually asking to be put into the classroom as a student teacher, it’s quite possible that he crossed that line from dissenter to rulebreaker — and if so, then denying him a student-teaching assignment was probably wise.
But neither the Oyama ruling nor the Minnesota Supreme Court’s similar ruling last year in Tatro v. University of Minnesota acknowledged the central importance of protecting that right of dissent. Both rulings invite misuse by college purists who believe any deviation from prevailing norms indicates “unprofessionalism.”
How aggressively colleges should operate as professional gatekeepers, keeping people from ever qualifying for occupations for which they appear unsuited, is an issue that policymakers at all levels should be pondering with much greater care and reflection.