Pompeo v. Board of Regents of University of New Mexico

852 F.3d 973, 2017 WL 1149501, 2017 U.S. App. LEXIS 5384
CourtCourt of Appeals for the Tenth Circuit
DecidedMarch 28, 2017
DocketNo. 15-2179
StatusPublished
Cited by14 cases

This text of 852 F.3d 973 (Pompeo v. Board of Regents of University of New Mexico) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pompeo v. Board of Regents of University of New Mexico, 852 F.3d 973, 2017 WL 1149501, 2017 U.S. App. LEXIS 5384 (10th Cir. 2017).

Opinion

LUCERO, Circuit Judge.

This appeal requires us to enter the intersection of deference to educators in the academic setting and the exercise of freedom of speech under the First Amendment. Because educators should strive to establish relationships of mutual trust and respect with then students, encouraging them to “remain free to inquire, to study and to evaluate, to gain new maturity and understanding,” Sweezy v. New Hampshire, 354 U.S. 284, 250, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957) (plurality opinion), we abhor actions that “cast a pall of orthodoxy over the classroom,” Keyishian v. Bd. of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967). Nevertheless, 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.” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986). 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.” Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968).

Monica Pompeo, a student in a graduate-level course at the University of New Mexico (“UNM”), asks us to intercede in precisely such a dispute. She claims that UNM officials retaliated against her in violation of her free speech rights because they disagreed with viewpoints she expressed in an assigned class paper. We held in Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004), that courts may not override an educator’s decision in the school-sponsored speech context “unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment” and instead used “the proffered goal or methodology [as] a sham pretext for an impermissible ulterior motive.” Id. at 1293 (quotation omitted). In that case, we held that a compelled speech requirement may have been imposed as “a pretext for religious discrimination.” Id. We are asked by Pompeo to draw an analogy between the religious discrimination at issue in Axson-Flynn and the viewpoint discrimination she brings to us. Yet our court has specifically held that precedent “allows educators to make viewpoint-based decisions about school-sponsored speech” and may restrict speech they believe contains “inflammatory and divisive statements.” Fleming v. Jefferson Cty. Sch. Dist. R-1, 298 F.3d 918, 926, 934 (10th Cir. 2002). Exercising jurisdiction under 28 U.S.C. § 1291, for the reasons we elaborate herein, we affirm.

[978]*978I

In the Spring 2012 term, Pompeo enrolled in an upper-division course at UNM taught by Professor Caroline Hinkley titled “Images of (Wo)men: From Icons to Iconoclasts.” The course syllabus states that the class would cover a wide range of themes and that, because students will view sexually explicit material, the course is restricted. Students are advised that there is “controversy built right into the syllabus” and they should expect “perhaps even incendiary class discussions.” However, the syllabus further states that students will be expected to act “with respect and care for everybody’s marvelously complex subjectivities,” and that students who remain in the course agree “to participate with such respect.”

As part of the course, students were required to complete response papers discussing the assigned material. The syllabus explains that “[wjell-developed responses usually 1) refer to the reading, point to several passages, identify a page number; 2) offer a context or summary of what the author is saying; and then 3) pose a question.” Hinkley’s pedagogical goals for the course were to teach students how “to write a critical and analytic paper,” “think critically,” and “discern a critical argument from opinions and polemics.” Hinkley emphasized to her students that she would “ask them to re-write their papers if they did not satisfy the requirements.”

During her enrollment in the course, Pompeo submitted four response papers. She received an A- on her first paper and an A for her second and fourth papers. None of these papers included citations from the required readings.. Hinkley stated that she was “very lenient on many of the requirements” in grading papers early in the semester in an effort to encourage students, but would “become more emphatic about citations and [ ] critical authority” as the term progressed.

Pompeo’s third response paper, submitted on February 21, 2012, discussed the 1985 film Desert Hearts, which depicts a lesbian romance. In the paper, Pompeo states: “For those uninterested in lesbian romance, the film is likely intolerable to watch in its entirety because there is virtually no other theme in the film; providing no reason for anyone other than lesbians who are unable to discern bad film from good film to endure Desert Hearts.” In response to an assigned article describing the women in the film as “gorgeous,” Pom-peo writes that “their general appearance conjures the cliché, ‘you can put lipstick on a pig, but it’s still a pig.’ ” She describes one of the characters as “still sexually vibrant, in spite of her perverse attraction to the same sex” and states that “lesbianism is a very death-like state as far as its inability to reproduce naturally.” Describing a scene in which two female characters share a bath, Pompeo writes that the “only signs of potency in the form of the male cock exist in the emasculated body” of one character’s fiancé, and portrays the bath water as “essentially drowning out any chance of life considering their fatal attraction to one another.” Pompeo states that 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.”

On March 6, 2012, Hinkley asked Pom-peo to meet with her to discuss the paper. Prior to their meeting, Hinkley returned the paper to Pompeo without a grade, but with several handwritten comments. For example, Hinkley wrote: “Oops, Monica — I can assure you that lesbians can discern a good film from a bad one just as any informed straight viewer,” and “Why is attraction to the same sex perverse? This [979]*979is a strong statement that needs critical backup. Otherwise it’s just inflammatory.” With respect to Pompeo’s discussion of two female characters’ “fatal attraction to one another,” Hinkley explained that one of the characters was straight. Hinkley also corrected several minor grammatical errors.

Pompeo met with Hinkley on March 20, 2012.

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Bluebook (online)
852 F.3d 973, 2017 WL 1149501, 2017 U.S. App. LEXIS 5384, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pompeo-v-board-of-regents-of-university-of-new-mexico-ca10-2017.