U.S. Tenth Circuit - The FindLaw 10th Circuit Court of Appeals Opinion Summaries Blog

University Can Reject Student's Paper for 'Hate Speech,' 10th Rules

The 1985 film 'Desert Hearts,' tells the story of a divorced woman's lesbian awakening in Reno, Nevada. It's become a cult classic and a seminal work in gay cinema, but to one student assigned to watch it, 'Desert Hearts' had nothing to offer "for anyone other than lesbians who are unable to discern bad film from good."

A disagreement over that review, and the condemnation of lesbians it contained, eventually led the student, Monica Pompeo, to withdraw from the class, a graduate-level course at the University of New Mexico. She later sued, claiming that the university had violated her free speech rights. But the Tenth Circuit rejected her suit last Tuesday, ruling that there was no clear, constitutional prohibition against restricting "inflammatory and divisive statements."

Student Gives "Desert Hearts" Two Thumbs Down

Pompeo was a part-time student in UNM's film course "Images of (Wo)men: From Icons to Iconoclasts" in 2012, a class that claimed it had "controversy built right into the syllabus." As part of the course, students would regularly write critical responses to the films covered.

When it came time to respond to "Desert Hearts," Pompeo made it clear that she was not a fan.

In addition to claiming that the film was of little merit, Pompeo also decried the lesbian women's "barren wombs" and "very death-like state." She described their "perverse attraction to the same sex" and said their appearance "conjures the cliché, 'you can put lipstick on a pig, but it's still a pig.'"

Overall, 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."

Pompeo's professor declined to grade the paper, instead scheduling a meeting with Pompeo. The response, the professor explained, was more a critique of lesbians than of the film and its "inflammatory" and "polemical" statements needed to be supported. Pompeo further asserts that the phrase "hate speech" was used and that she was encouraged to drop the course.

No Clearly Established Protection Against Viewpoint Discrimination

Pompeo eventually did withdraw. She filed a grievance with the university and received a refund for the course's tuition. Then she sued. The school's actions were a violation of her constitutional rights, she alleged, but the Tenth Circuit did not agree.

Acknowledging that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," the court further explained that such free speech rights are not "coextensive with the rights of adults in other settings." In the school context, educators may "exercise editorial control" over student speech when "reasonably related to legitimate pedagogical concerns," the court said, citing the Supreme Court's 1988 Hazelwood decision.

Under Tenth Circuit precedent, "Hazelwood allows educators to make view-point based decisions about school-sponsored speech."

The court rejected Pompeo's attempts to analogize her case to Axson-Flynn v. Johnson. Under that 2004 Tenth Circuit decision, the court ruled that it may intervene when educators limit speech for "an impermissible ulterior motive." That such impermissible motives include race, gender, class, religion, political persuasion.

"Notably absent from that list is viewpoint discrimination," the court explained. As such, there was no clearly established protection against viewpoint discrimination and the university was protected by qualified immunity.

Meanwhile, "Desert Hearts" director Donna Deitch announced in December that she is raising funds for a sequel. We don't image Pompeo will be contributing.

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