Have you seen the film “Desert Hearts”? It will help you understand today’s case.

Monica Pompeo enrolled in a graduate level course at the University of New Mexico which promised to be controversial.  The course, “Images of (Wo)men: From Icons to Iconoclasts” carried a sort of “parental advisory.” The course materials would include sexually explicit material. Students should expect controversial, even “incendiary” class discussions.  Students were warned to “participate with respect” and to “respect and care for everybody’s marvelously complex subjectivities.”

Ms. Pompeo, a student in the class, did not think much of the film “Desert Hearts,” which was included in the class curriculum.  Here are some quotes from Ms. Pompeo’s paper, which she was assigned to write in response to the movie:

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.”

…their general appearance [referring to the women in the film] conjures the cliché, “you can put lipstick on a pig, but it’s still a pig.”

One character is described as:

still sexually vibrant, in spite of her perverse attraction to the same sex.

Regarding a bath scene involving two women:

[The] only signs of potency in the form of the male cock exist in the emasculated body [of one character’s fiancé]; [the bath water] essentially drowning out any chance of life considering their fatal attraction to one another.

The film as a whole:

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.

The prof asked Ms. Pompeo to meet with her regarding this paper.  Several discussions ensued with both the prof, the head of the department, and other UNM officials. Clearly, the prof took exception to some of the student’s comments and her language.  The paper was never graded, and despite being given the opportunity to re-write it, she never did. The student finally withdrew from the class, protesting that she was effectively forced out due to her viewpoint about same sex relationships.  The university refunded her tuition for the class.

But that did not stop Ms. Pompeo from suing the university, her professor and the head of the department, accusing them of unconstitutional viewpoint discrimination. The case ended up in the 10th Circuit, which issued a decision many readers will find surprising.

The court held that even if this academic flap is considered “viewpoint discrimination” it was all perfectly legal.  That’s because this was “school-sponsored speech” rather than the student speaking on her own.  The court relied on the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier (1988). That case involved a high school student newspaper. SCOTUS held that the content of the school newspaper was actually the speech of the school—not the students’. Therefore, the school could control it, restrict it, censor it, as long as it had a “legitimate pedagogical reason” for doing so.

This case extends that logic 1) to higher education; and 2) to a student paper written in response to an assignment. Thus even though Ms. Pompeo’s paper was clearly an expression of her own views on the film, the court treated it as “school sponsored speech” thus giving the professor the authority to insist that the word “barren” was out of line.

The court held that viewpoint discrimination would not be permissible if it was a pretext for some darker motive, such as religious discrimination.  The court thus distinguished an earlier case (Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004).  In that case, University of Utah officials told a Mormon student who refused to utter curse words in acting assignments that she could “choose to continue in the program if you modify your values. If you don’t, you can leave.”  The court thought there was enough evidence of anti-Mormon bias in the record that it might be a “pretext” case.

But not so for Ms. Pompeo.  There was no evidence of this conflict being about religion, gender, race, or any other protected category.  It seems pretty clear that the student and her prof had very different views about same-sex relationships, but the university officials claimed that they were merely objecting to language in the paper that was “inflammatory and divisive.”  The court noted that “legitimate pedagogical concerns” is a term broad enough to allow educators to promote “discipline, courtesy and respect for authority.”  Key Quote: “Teaching students to avoid inflammatory language when writing for an academic audience qualifies as a legitimate pedagogical goal.”

The case of Pompeo v. Board of Regents of the University of New Mexico was decided by the 10th Circuit Court of Appeals on March 28, 2017.  You can find it at 852 F.3d 973 or 2017 WL 1149501.


File this one under: FREE SPEECH

See you next week!