A federal appeals court has lowered the constitutional threshold for colleges to remove students from pre-professional programs, such as teaching, based on the content of their speech.
In a ruling issued Tuesday, a three-judge panel of the Ninth Circuit U.S. Court of Appeals found that the University of Hawaii did not violate a student’s First Amendment rights by discontinuing his enrollment after he made remarks suggesting unfitness to be a teacher.
In the case, Oyama v. University of Hawaii, Mark L. Oyama challenged the university’s decision to deny him a student-teaching placement that was required for him to complete his course of study in the College of Education.
The university claimed that Oyama made disturbing remarks to his instructors, both in conversation and in the course of class assignments, reflecting views unsuitable for working with children, including stating that sex with minors should be legal and that most special-education students are “fakers.”
A U.S. district judge sided with the university in an April 2013 opinion that relied heavily on the Supreme Court’s 1988 ruling in Hazelwood School District v. Kuhlmeier, a case about the First Amendment rights of K-12 students that the Supreme Court has never extended to the college level. Judge Helen 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,” a phrase straight out of the Hazelwood case.
The appeals court, however, did not elect to go the Hazelwood route. Rather, the court created a new First Amendment exception not previously recognized in the Ninth Circuit (which sets legal precedent for nine western states), that Judge Kim McLane Wardlaw’s opinion defined as follows:
[W]e hold that the University of Hawaii’s decision to deny Oyama’s student teaching application did not offend the First Amendment because it related directly to defined and established professional standards, was narrowly tailored to serve the University’s foundational mission of evaluating Oyama’s suitability for teaching, and reflected reasonable professional judgment.
In other words, students enrolled in a professional certification program such as teaching will now be subject to content-based restrictions on their speech so long as the restriction (1) relates directly to established professional standards, (2) is narrowly tailored to advance the college’s educational mission and (3) reflects reasonable professional judgment. This is a Frankensteinian hybid of constitutional standards — “narrow tailoring” is regarded as a demanding burden on the government censor, while “reasonableness” is a very light burden — and it is not at all clear how it will play out in future cases.
The SPLC, through counsel Eugene Volokh at UCLA’s Banister First Amendment Clinic, was among the free-speech organizations urging the appeals court to disavow Hazelwood as a basis for regulating the speech of adult-age college students.
Hazelwood is about the speech of students using a communicative vehicle provided by the school in a way that might be confused with an official school message. A student’s comments in a classroom writing assignment or in a one-on-one conversation with an instructor clearly do not meet the definition of the speech governed by Hazelwood, which diminishes students’ First Amendment rights to the point where a legal challenge is nearly impossible.
The Ninth Circuit opinion acknowledged the logical flaws in applying Hazelwood to the speech of college students, but would not categorically rule it out:
In determining that Hazelwood does not provide the appropriate framework for evaluating a First Amendment claim such as Oyama’s, we need not and do not decide whether the Hazelwood standard can ever apply in the context of student speech at the college and university level.
Oyama’s attorneys had offered the court essentially three sets of established legal standards to apply to their client’s remarks. First, the speech could be governed by the law that applies to all citizens’ speech when the government seeks to regulate content; in that case, the speech would clearly have been constitutionally protected, because it was neither threatening nor otherwise unlawful. Second, the speech could be governed by the law that applies to student speech in a school setting, under which (per the Supreme Court’s 1969 Tinker ruling) the college could not impose punishment unless the remarks posed an imminent threat of substantially disrupting school activities. Or third, the remarks could be governed by the law that applies to public employee speech, because Oyama was working in a quasi-professional setting as a teacher trainee. If viewed as employee speech, the remarks would have been evaluated under the Supreme Court’s “balancing test” for the rights of government employees, weighing Oyama’s interest in addressing matters of public concern versus the college’s interests in workplace harmony.
The Ninth Circuit declined to apply any of these previously accepted categories and instead created a new one applicable to the speech of students in professional programs.
That standard appears to be derived from the Minnesota Supreme Court’s disturbing 2012 ruling in Tatro v. University of Minnesota, which created a First Amendment exception for college students’ speech that violates “established professional conduct standards.” In that case, the court found no constitutional violation when a college punished a student for posting distasteful jokes to Facebook about the corpse she was assigned to dissect in her mortuary-science program. However, the student in the Tatro case was given a rather mild set of disciplinary consequences, which influenced the court’s thinking, while the student in Oyama was completely deprived of his chance to complete his degree. (As the SPLC warned when the Minnesota court was considered the Tatro case, once speech is stripped of its constitutional protection, there is no recourse to challenge any college disciplinary action, no matter how severe.)
Arguably, the Oyama ruling is less far-reaching than the Tatro decision on which it is based, because the speech in Oyama’s case was tightly connected to (in the court’s words) “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.” That is far different and less troubling than the court’s conclusion in Tatro that “unprofessional” speech could be punished even when published on a social-media page entirely removed from school time, premises and functions.
Still, the bottom line is that a federal appeals court has for the first time recognized an end-run to the traditional First Amendment analysis that applies to student speech, enabling colleges to punish speech without having to demonstrate a substantial disruption to school activities.
While it appears clear from the Ninth Circuit’s ruling that this new and more censorship-forgiving standard will apply only to students in heavily regulated professional programs, college attorneys predictably will attempt to apply it more expansively to anything “unprofessional” published by any student on social media — exactly the issue pending before the Eighth U.S. Circuit Court of Appeals in Keefe v. Adams, a case that might be called “Tatro: The Revenge.” In the Keefe case, a Minnesota nursing student was expelled after a profane argument with a classmate on his Facebook wall (off-campus and during personal time), which the college deemed unprofessional despite being unable to point to any “defined and established professional standard” that applies to the off-campus social behavior of nurses.
The stakes are now quite a bit higher for the Eighth Circuit to decide Craig Keefe’s case correctly — and if the case does not completely align with the Ninth Circuit’s reasoning in Oyama, then the matter will be ripe for Supreme Court reconciliation.