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On Monday, FIREand the  (SPLC) filed a brief in the United States Court of Appeals for the Ninth Circuit as amici curiae (“friends of the court”), asking the appeals court to reverse the district court’s erroneous and dangerous  in the case of Oyama v. University of Hawaii. The brief was prepared by noted First Amendment expert Eugene Volokh in conjunction with the University of California, Los Angeles School of Law’s First Amendment Amicus Brief Clinic.

The relevant facts are fairly straightforward. 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 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.”

The brief filed by FIREand SPLC asks the Ninth Circuit to reverse the district court’s decision. As our brief argues, the district court applied the wrong legal standard in analyzing the First Amendment protection of student speech in higher education, and in doing so opened the door to broad, unconstitutional censorship of students at our nation’s colleges and universities.

In ruling that UH did not violate Oyama’s First Amendment rights, the district court relied on the Supreme Court’s holding in , 484 U.S. 260 (1988), which addressed the ability of a high school to regulate student speech in the context of school-sponsored activities, where the speech could reasonably be imputed to the school itself. However, as we have consistently pointed out, the application of Hazelwood to student speech in higher education is improper and conflicts with the broad First Amendment protections that the Supreme Court has held apply to college students. See, e.g., , 408 U.S. 169, 180 (1972) (“[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large.”) (internal citation omitted). Be sure to visit the SPLC’s excellent “” site for more information about the problems with Hazelwood’s application to college student speech.

Even if Hazelwood did apply to higher education, it would still be inapposite in this case, because Oyama was punished for speech that occurred in the context of his conversations with faculty members, which could not reasonably be interpreted to constitute the view of the institution itself. The brief explains:

But, in any event, Hazelwood rested on the theory that a high school student newspaper expressed the voice of the high school, and that therefore high school authorities had the power to restrict what that voice communicates. Hazelwood, 484 U.S. at 263-64. “[T]he standard . . . for determining when a school may punish student expression need not also be the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression.”Id. at 272-73. Here, Oyama’s views were clearly Oyama’s, and not the University’s.

Taken to its logical conclusion, the district court’s opinion would allow schools to institute extremely broad speech codes. If schools may punish speech merely by claiming that it does not comport with the prevailing norms of the particular profession or discipline, there is virtually no limit to what speech a student might be punished for:

If universities may dismiss students from educational programs on the grounds that the student’s views fail to comply with dominant professional norms, then most of these campus speech codes could be revived merely by being slightly reworded (for instance, on the theory that allegedly bigoted or otherwise offensive speech is contrary to professional norms). Indeed, if university student speech expressing calm, reasoned views on important public policy topics such as age of consent laws and disability education policy is stripped of First Amendment protection, then universities would have a virtually free hand in engaging in the viewpoint discrimination that the Supreme Court has long condemned. As the speech code cases show, even well-intentioned university administrators often face substantial pressure—from activists, legislators, other administrators, faculty, or students—to restrict student speech. The decision below would give administrators a roadmap to impose such restrictions.

While UH can discipline a student for actually violating conduct or ethical codes, its asserted interest in protecting professional norms from opposing opinions cannot survive scrutiny. Courts have consistently held that while professional licensing boards may impose and enforce ethical and conduct rules, they may not deny applicants simply because they have expressed opinions outside the mainstream. Nor can professional schools discipline students for holding controversial opinions in the absence of an actual violation of professional rules:

Indeed, as this Court recently held, even “a doctor who publicly advocates a treatment that the medical establishment considers outside the mainstream, or even dangerous, is entitled to robust protection under the First Amendment—just as any person is—even though the state has the power to regulate medicine.” Pickup v. Brown, 728 F.3d 1042, 1053 (9th Cir. 2013). “[O]utside the doctor-patient relationship, doctors are constitutionally equivalent to soapbox orators and pamphleteers, and their speech receives robust protection under the First Amendment.” Id. at 1054. Likewise, teachers cannot be barred from the profession for publicly expressing heretical views about disability discrimination or the age of consent, or for expressing such views in conversations with colleagues or professors. And if professional licensing boards cannot exclude applicants based on their viewpoints being supposedly “out of alignment” with professional “standards,” then universities cannot exclude students on this basis, either.

The actions of UH are part of a disturbing trend of using “d������Dz����پ��DzԲ�” to evaluate students’ commitment to certain beliefs or ideologies and thus their suitability for teaching. As we have argued in the past, the use of dispositions encourages unconstitutional viewpoint discrimination, punishing students merely for having unpopular opinions, even when there have been no performance-related issues with the student’s work. The purpose of student teaching programs is, properly, to evaluate a candidate’s aptitude and performance. FIRElike Oyama should be assessed based on actual teaching, rather than any speculation as to how they may perform because of the opinions they hold. When ideological litmus tests restrict teaching positions (and the ability to demonstrate one’s aptitude for teaching) to those holding “acceptable” beliefs, both classrooms and professions will suffer from the intolerable “pall of orthodoxy” warned of by the Supreme Court. See , 385 U.S. 589, 603 (1967). Is it any wonder that students are  to think critically and challenge their own deeply-held beliefs when those charged with their education are not allowed to do so themselves?

Torch readers interested in the case can read the brief in its entirety here.

Image: University of Hawaii at Hilo sign -