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Pompeo v. Board of Regents of University of New Mexico

United States Court of Appeals, Tenth Circuit

March 28, 2017

MONICA POMPEO, Plaintiff - Appellant,
v.
BOARD OF REGENTS OF THE UNIVERSITY OF NEW MEXICO; CAROLINE HINKLEY; SUSAN DEVER, in their individual capacities, Defendants-Appellees.

         Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:13-CV-00833-MCA-CG)

          Robert J. Gorence, Gorence & Oliveros, P.C., Albuquerque, New Mexico; (Louren Oliveros and Christina Cavaleri, Gorence & Oliveros, P.C., Albuquerque, New Mexico, with him on the briefs); for Plaintiff-Appellant.

          Sean Olivas, Keleher & McLeod, Albuquerque, New Mexico; (Thomas C. Bird and Zachary R. Cormier, Keleher & McLeod, P.A., Albuquerque, New Mexico, with him on the brief), for Defendants-Appellees.

          Before LUCERO and EBEL, Circuit Judges. [*]

          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 their 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. 234, 250 (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 (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 (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 (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.

         I

         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 "[w]ell-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, " Pompeo 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 Pompeo 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 is 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. Hinkley scheduled the meeting to discuss the ways in which she believed portions of the paper fell short of the standards applicable to critical analysis, specifically, Pompeo's "unsupported generalizations about lesbians." She explained that "inflammatory" or "polemical" statements in particular must be "backed up with critical, authoritative citations and sources." Hinkley felt that the paper merely stated opinions rather than critically stating and developing an argument, and that Pompeo was "critiquing lesbians, " not the film. Rather than grade the paper poorly, Hinkley gave Pompeo an opportunity to rewrite it. After Pompeo stated that Desert Hearts was unendurable, Hinkley responded that the class would view other similar films that Pompeo would likely find unendurable as well. Toward the end of their meeting, Hinkley became "alarmed" when Pompeo veered away from the subject at hand and shared details of her personal sexual history and preferences. She described the meeting as ending in a standstill. Hinkley was not sure whether Pompeo wanted to rewrite the paper.

         Pompeo states that Hinkley was emotional during the meeting, accused Pompeo of using "hate speech, " and said "that it was in [Pompeo's] best interest not to return to her class." However, Pompeo also avers that Hinkley suggested she write a paper on another film and indicated that she would probably receive a good grade. Pompeo characterized her "status" in the class following the meeting as "unresolved."

         It is undisputed that Pompeo attended the next class, which occurred just after the meeting. Hinkley states that Pompeo was particularly disruptive in that class but had been disruptive throughout the semester. She states that Pompeo was generally domineering during classroom discussions, spoke out of turn, and interrupted other students. In the class after their meeting, Pompeo strayed from the course materials, engaging in a lengthy rant about Elizabeth Edwards and discussing Tony Curtis' sexuality. Concerned with the "disruptive situation, " Hinkley asked Cinematic Arts Department Chair Susan Dever to visit the class, which she did. Pompeo asserts that she was made uncomfortable by Dever's presence and felt like she was being monitored because of the statements made in her paper.

         The day after the March 20 meeting, Pompeo tried unsuccessfully to meet with Hinkley again. On March 22, Pompeo met with UNM Provost Jane Slaughter. The same day, Associate Dean Holly Barnet-Sanchez directed Pompeo to address her concerns to Dever. Pompeo met with Dever and Assistant Professor James Stone on March 23. At that meeting, Dever and Stone told Pompeo that her use of the words "barren" and "cock" were not appropriate. Dever also conveyed to Pompeo that she had offended Hinkley. According to Dever, during this meeting Pompeo decided to complete the course as an independent study with Dever and was enthusiastic about her decision. But Pompeo states that through this series of meetings "it was clear that I was banned from the Images class because of the perceived views and the language used in my paper." According to Pompeo, she wished to remain in the class, but "understood that [she] would . . . not be allowed back in the Images classroom" and had no choice but to complete the independent study.

         In an email from Dever to Pompeo dated March 26, Dever wrote that she looked forward to completing an independent study program with Pompeo in lieu of the Images class. She stated: "As we agreed, given our thorough review of the ungraded paper, we'll chalk that up to a learning experience that will not feature in your final portfolio." Dever offered several pieces of writing advice, including that "[p]ositing a thesis, rather than stating an opinion" would strengthen Pompeo's work. She also thanked Pompeo for her "willingness to enter into these and other conversations with great openness on Friday." Finally, Dever stated in closing that Pompeo had the right to speak with Barnet-Sanchez if she wished to do so.

         On March 29, Pompeo responded by email that she would like to meet again and may want to speak with Barnet-Sanchez. She wrote that she felt like she had "done something wrong" and had "been quietly removed from the classroom." Dever responded that she would be happy to talk and that Pompeo could visit with Barnet-Sanchez if she preferred. Pompeo wrote back indicating that she would like to talk with Dever by phone and had decided what she wanted to do. Apparently after a phone conversation, Pompeo wrote to Dever, "You're too good at what you do. Thank you some more!" The two scheduled another independent study meeting for April 5.

         On April 6, Dever wrote to Pompeo to recap their meeting. As reflected in the email, Dever agreed during the meeting that Pompeo would revise and resubmit her Desert Hearts paper, rather than write on another topic. Dever believed that, in doing so, Pompeo had "chosen the hardest road, " but stated she would support Pompeo either way. She asked Pompeo to submit a new draft by April 10 and advised her to keep in mind that she was writing for an academic audience. She suggested that Pompeo reconsider some word choices, including "perverse, " which "is opinion and just muddies another point the essay seems to be making, " and "barren, " which "has been used historically to punish and degrade women."

         Pompeo responded that she would "probably use the word 'BARREN'" and does not "like to be told what words [she] may and may not use, ever." Dever replied that Pompeo could use whatever words she chose, "but after so much conversation about the word [barren], we know that . . . choices have consequences." As to Pompeo's statement that she did not like being told what words to use, Dever explained that she was "in the business of trying to help students learn to write unassailable essays . . . that speak to a general, academic audience with respect."

         Pompeo met with Barnet-Sanchez on April 9. Barnet-Sanchez told Pompeo that Hinkley and Dever thought she had been disruptive and disrespectful in class. Pompeo denied that was true. She states that was the first time she was made aware of such a problem. Barnet-Sanchez proposed mediation, but that apparently did not occur.

         Despite receiving several extensions, Pompeo never submitted a revised draft of her paper. Dever states that Pompeo eventually abandoned the independent study by failing to submit any essays or otherwise participate. Pompeo avers that she did not abandon the independent study. However, she also states that she "felt like [she] had no choice but to abandon the paper" after meeting with Dever on March 23. Pompeo further indicates that she was unwilling to omit specific words from her paper, and that she understood the "consequences" Dever threatened to be a poor grade or other academic or non-academic penalties. Pompeo admits that she ultimately withdrew from the course in part because ...


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