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Appeals court sides with U of New Mexico in case of student who said she was booted from a class for critiquing lesbianism. Judges say professors have right to make decisions about what kind of speech is appropriate for academic setting.

March 31, 2017
Scene from ‘Desert Hearts’

The U.S. Court of Appeals for the 10th Circuit has sided with a lower court and the University of New Mexico in the case of a student who says she was dismissed from a film course for expressing anti-gay views.

The court based its decision on legal precedent allowing educators to make decisions about what is appropriate “school-sponsored speech,” including their ability to restrict speech they believe contains “inflammatory and divisive statements.”

The student, Monica Pompeo, sued the institution in 2013 for alleged violations of her First Amendment rights in a class called Images of (Wo)men: From Icons to Iconoclasts. The course syllabus said content would be provocative and that students were expected to conduct themselves with “respect and care.” The instructor, Caroline Hinkley, also warned students to distinguish opinions from critical thought, and said she’d ask them to rewrite analytic papers that didn’t meet that standard.

Pompeo received A’s on her first two papers but was asked to rewrite the third, on the 1985 film Desert Hearts. Pompeo wrote that the film, which depicts a lesbian romance, provides “no reason for anyone other than lesbians who are unable to discern bad film from good film to endure” it. Of the actors, Pompeo wrote, “their general appearance conjures the cliché ‘you can put lipstick on a pig, but it’s still a pig.’”

She described one of the characters as “still sexually vibrant, in spite of her perverse attraction to the same sex,” but lesbianism in general as “a very death-like state as far as its inability to reproduce naturally.” Turning to a bathing scene in the film, Pompeo said that the “only signs of potency in the form of the male cock exist in the emasculated body” of one character's fiancé, and that the water was “essentially drowning out any chance of life considering their fatal attraction to one another.”

Over all, she said, the film “can be viewed as entirely perverse in its desire and attempt to reverse the natural roles of man and woman in addition to championing the barren wombs of these women.”

Hinkley wrote on Pompeo’s ungraded paper that lesbians were in fact capable of discerning good films from bad ones and asked, ”Why is attraction to the same sex perverse? This is a strong statement that needs critical backup. Otherwise it's just inflammatory.” She asked Pompeo to rewrite her paper, critiquing the film, not just lesbians.

Pompeo was allegedly distracted and “domineering” in the next class session, according to court documents, prompting a visit from the chair of the cinematic arts department. But the student said she felt she was being monitored for her anti-gay comments. She complained about her situation to the university provost and a dean and eventually met with the department chair and a third professor, who told her that her use of the historically derogatory term “barren” and the explicit term “cock” were not appropriate for an academic setting.

The department chair allegedly took Pompeo’s statements during the meeting to mean that she would complete the course as an independent study. Pompeo later said she felt “banned” from the class due to her perceived views on lesbians.

Based on email communications with the department chair, now her supervisor for the independent study, Pompeo continued to insist on using certain words that had been flagged as inflammatory, such as “barren.” She also said she didn’t “like to be told what words [she] may and may not use, ever.”

Pompeo never resubmitted the paper and ultimately withdrew from the class. She later filed a grievance with the university, and it agreed to refund her tuition for the course.

She subsequently filed a lawsuit alleging violations of her free speech rights. The district court ruled in favor of the university. Pompeo appealed.

In upholding the original ruling, Judge Carlos F. Lucero wrote in an opinion released this week that the case required him and his colleagues to consider the “intersection” of deference to teachers in educational settings and free speech rights. “Because educators should strive to establish relationships of mutual trust and respect with their students, encouraging them to ‘remain free to inquire, to study and to evaluate, to gain new maturity and understanding,’” he wrote, quoting a number of legal precedents, “we abhor actions that ‘cast a pall of orthodoxy over the classroom.’”

Nevertheless, he said, “our jurisprudence has long recognized that the ‘freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behavior.’ Federal courts ‘do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values.’”

Ultimately, case law does not suggest that federal courts are in the business of determining whether a term is appropriate for an academic setting, Lucero said. “Short of turning every classroom into a courtroom, we must ‘entrust to educators these decisions that require judgments based on viewpoint.’”

While Pompeo claims a right to use language that her professors find to be inflammatory without being criticized or pressured to make revisions, he said, “we conclude that such a right is not clearly established” in the Constitution.

Neil Gorsuch, President Trump’s current nominee for the U.S. Supreme Court and a judge on the 10th Circuit, considered Pompeo's appeal but was not involved in the opinion. He didn't dissent; the decision moved forward because two judges agreed.

The university said in a statement that it’s pleased on behalf of the faculty members involved that the new opinion “provides a more complete perspective on the facts and affirms there was insufficient evidence that the student’s free speech rights were violated.”

One of Pompeo's attorneys, Louren Oliveros, said she's analyzing the court's opinion and considering filing an en banc petition. "There are some key points we are focusing on, including the court's analysis of pretext," she added.



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