Pompeo v. Board of Regents, et al

Filing

[10454802] Affirmed;Terminated on the merits after oral hearing;Written, signed, published; Judges Lucero (authoring) and Ebel. Mandate to issue. [15-2179]

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FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

March 28, 2017

FOR THE TENTH CIRCUIT
_________________________________

Elisabeth A. Shumaker
Clerk of Court

MONICA POMPEO,
Plaintiff - Appellant,
v.

No. 15-2179

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.


The Honorable Neil Gorsuch considered this appeal originally but did not
participate in this Opinion. The practice of this court permits the remaining two
panel judges, if in agreement, to act as a quorum in resolving the appeal. See 28
U.S.C. §46(d); see also United States v. Wiles, 106 F.3d 1516, 1516 n* (10th Cir.
1997) (noting this court allows remaining panel judges to act as a quorum to resolve
an appeal).

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_________________________________
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
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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
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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
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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
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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
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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
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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 BarnetSanchez 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
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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
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ultimately withdrew from the course in part because she was unwilling to revise her
paper. She also identifies the lack of a grade for her paper and dishonesty from
Hinkley and Dever as reasons for her decision to withdraw.
Pompeo later filed a grievance with UNM. The school agreed to refund her
tuition for the course. Pompeo then filed suit in state court against Hinkley, Dever,
and the UNM Board of Regents. Defendants removed the case to federal court. In
her amended complaint, Pompeo asserts a 42 U.S.C. § 1983 claim against the
defendants for violation of her First Amendment rights. She seeks a declaratory
judgment and damages. The district court denied defendants’ motion to dismiss, but
later granted their motion for summary judgment. The district court concluded that
Hinkley and Dever were entitled to qualified immunity and that the UNM Board of
Regents was immune from suit under the Eleventh Amendment. Pompeo timely
appealed.1
II
We review the grant of summary judgment de novo. Hobbs ex rel. Hobbs v.
Zenderman, 579 F.3d 1171, 1179 (10th Cir. 2009). A party is entitled to summary
judgment only if, viewing the evidence in the light most favorable to the non-moving
party, the movant is entitled to judgment as a matter of law. Id.
A

1

Pompeo does not address the district court’s dismissal of her claim against
the UNM Board of Regents in her briefing and has thus waived that claim. See Adler
v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments
inadequately briefed in the opening brief are waived . . . .”).
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To determine whether defendants are entitled to qualified immunity, a court
must determine: (1) whether defendants’ conduct violated plaintiff’s constitutional
rights; and (2) whether the right at issue was clearly established. Gomes v. Wood,
451 F.3d 1122, 1134 (10th Cir. 2006). We have discretion to consider either prong
first. Panagoulakos v. Yazzie, 741 F.3d 1126, 1129 (10th Cir. 2013). We exercise
that discretion to proceed directly to the clearly established prong.
For the law to be “clearly established,” there ordinarily must be a Supreme
Court or Tenth Circuit opinion on point, or the clearly established weight of authority
from other circuits must point in one direction. Medina v. City & Cty. of Denver,
960 F.2d 1493, 1498 (10th Cir. 1992). “This is not to say that an official action is
protected by qualified immunity unless the very action in question has previously
been held unlawful, but it is to say that in the light of pre-existing law the
unlawfulness must be apparent.” Mimics, Inc. v. Vill. of Angel Fire, 394 F.3d 836,
842 (10th Cir. 2005) (quotation omitted). “The relevant, dispositive inquiry in
determining whether a right is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation.” Cortez v.
McCauley, 478 F.3d 1108, 1114 (10th Cir. 2007) (en banc).
In conducting our analysis, we must “define the clearly established right at
issue on the basis of the specific context of the case.” Tolan v. Cotton, 134 S. Ct.
1861, 1866 (2014) (per curiam) (quotations omitted). In other words, we are “not to
define clearly established law at a high level of generality.” Mullenix v. Luna, 136 S.
Ct. 305, 308 (2015) (per curiam). Instead, we must ask “whether the violative nature
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of particular conduct is clearly established.” Id. (quotation omitted). With the right
at issue so formulated, “existing precedent must have placed the statutory or
constitutional question beyond debate.” Id. (quotation omitted).
The Supreme Court has “stressed that a court must judge the reasonableness of
[an action] from the perspective and with the knowledge of the defendant.” Kingsley
v. Hendrickson, 135 S. Ct. 2466, 2474 (2015). However, the inquiry is an objective
one: “a court must assess whether the right was clearly established against a
backdrop of the objective legal reasonableness of the actor’s conduct.” Gonzales v.
Duran, 590 F.3d 855, 860 (10th Cir. 2009). “[S]ubjective good faith or bad faith of
government actors is ordinarily irrelevant to the objective inquiry whether a
reasonable officer would have realized that his conduct was unlawful.” Meyer v. Bd.
of Cty. Comm’rs, 482 F.3d 1232, 1242 (10th Cir. 2007). And “defendants’
entitlement to qualified immunity[] turn[s] on an individual assessment of each
defendant’s conduct and culpability.” Pahls v. Thomas, 718 F.3d 1210, 1233 (10th
Cir. 2013).
It is well established that students do not “shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines
Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). However, students’ free speech
rights are not “coextensive with the rights of adults in other settings, and must be
applied in light of the special characteristics of the school environment.” Hazelwood
Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (quotations and citation omitted).
The parties agree that this case involves “school-sponsored speech,” which is “speech
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that a school affirmatively promotes, as opposed to speech that it tolerates.” Fleming
298 F.3d at 923 (quotations and alterations omitted). School-sponsored speech
includes “activities [that] may fairly be characterized as part of the school
curriculum.” Hazelwood, 484 U.S. at 271.
“[E]ducators do not offend the First Amendment by exercising editorial
control over the style and content of student speech in school-sponsored expressive
activities so long as their actions are reasonably related to legitimate pedagogical
concerns.” Id. at 273. We permit “greater control over” school-sponsored speech “to
assure that participants learn whatever lessons the activity is designed to teach.” Id.
at 271. Educators may also limit speech that is “ungrammatical, poorly written,
inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for
immature audiences.” Id. It is only when the decision to limit school-sponsored
speech “has no valid educational purpose that the First Amendment is so directly and
sharply implicated as to require judicial intervention to protect students’
constitutional rights.” Id. at 273 (quotation, citation, and alteration omitted).
Our court has held that “Hazelwood allows educators to make viewpoint-based
decisions about school-sponsored speech.” Fleming, 298 F.3d at 926. We reasoned
that if school officials “were required to be viewpoint neutral,” they “would be
required to [publish speech] with inflammatory and divisive statements.” Id. at 934;
see also Fraser, 478 U.S. at 683 (“The determination of what manner of speech in the
classroom or in school assembly is inappropriate properly rests with the school
board.”). In the context of school-sponsored speech, we held that “viewpoint
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neutrality is neither necessary nor appropriate, as the school is there responsible for
determining the content of the education it provides.” Fleming, 298 F.3d at 927
(quotation omitted).
We have also equated the question of whether speech is constitutionally
protected with the question of whether a school official restricted that speech based
on legitimate pedagogical concerns. See Vanderhurst v. Colo. Mountain Coll. Dist.,
208 F.3d 908, 914 (10th Cir. 2000). That is, whether an action restricting a
plaintiff’s school-sponsored speech is “reasonably related to the [school’s] legitimate
pedagogical interests is the test for determining whether his speech fell within the
ambit of First Amendment protection.” Id.
Pompeo relies heavily on Axson-Flynn as providing the clearly established law
violated by defendants. In that case, an acting student at the University of Utah
refused to use swear words in scene assignments. Axson-Flynn, 356 F.3d at 1282.
Her professor told her she would have to “get over” her language concerns, and
stated that she could “still be a good Mormon and say these words.” Id. The
professor initially threatened Axson-Flynn with a grade of zero if she refused to
swear, but ultimately allowed her to omit language she found offensive from class
exercises. Id. At an end of semester review, three college officials told her that her
request for a language accommodation was unacceptable and that she should “talk to
some other Mormon girls who are good Mormons, who don’t have a problem with
this.” Id. The officials gave Axson-Flynn an ultimatum: “You can choose to
continue in the program if you modify your values. If you don’t, you can leave.” Id.
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The following semester, after the officials confirmed they would not change their
minds, she left the program. Id.
Our Axson-Flynn opinion discusses the standards governing school-sponsored
speech claims at some length. We explained that “schools must be empowered at
times to restrict the speech of their students for pedagogical purposes,” including “a
teacher’s ability to penalize a student for disruptive classroom behavior.” Id. at
1290. And “schools also routinely require students to express a viewpoint that is not
their own in order to teach the students to think critically.” Id. Further:
The school’s methodology may not be necessary to the achievement of
its goals and it may not even be the most effective means of teaching,
but it can still be “reasonably related” to pedagogical concerns. A more
stringent standard would effectively give each student veto power over
curricular requirements, subjecting the curricular decisions of teachers
to the whims of what a particular student does or does not feel like
learning on a given day.
Id. at 1292 (emphasis omitted).
The Axson-Flynn opinion extensively quotes a Sixth Circuit decision, Settle v.
Dickson County School Board, 53 F.3d 152 (6th Cir. 1995), in which a student sued
after her teacher refused her permission to write a paper on the life of Jesus. The
court explained that
teachers, like judges, must daily decide which arguments are relevant,
which computations are correct, which analogies are good or bad, and
when it is time to stop writing or talking. Grades must be given by
teachers in the classroom, just as cases are decided in the courtroom;
and to this end teachers, like judges, must direct the content of speech.
Teachers may frequently make mistakes in grading and otherwise, just
as we do sometimes in deciding cases, but it is the essence of the
teacher’s responsibility in the classroom to draw lines and make
distinctions—in a word to encourage speech germane to the topic at
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hand and discourage speech unlikely to shed light on the subject.
Teachers therefore must be given broad discretion to give grades and
conduct class discussion based on the content of speech.
Axson-Flynn, 356 F.3d at 1287 (quoting Settle, 53 F.3d at 155-56) (emphasis
omitted).
We also relied on a Ninth Circuit case, Brown v. Li, 308 F.3d 939 (9th Cir.
2002), in which a master’s thesis committee refused to approve a thesis that
contained a “disacknowledgements” section offering “special Fuck You’s” to a
number of school officials. Id. at 943 (italics omitted). The student sued when
officials withheld his degree until he submitted a thesis omitting the section. Id. at
945. We quoted the Ninth Circuit’s holding that “the First Amendment does not
require an educator to . . . approve the work of a student that, in his or her judgment,
fails to meet a legitimate academic standard.” Axson-Flynn, 356 F.3d at 1288
(quoting Brown, 308 F.3d at 949) (emphasis omitted). The Ninth Circuit further held
that the Hazelwood standard applied with equal force at the secondary and college
levels, noting that the “[t]he Supreme Court’s jurisprudence does not hold that an
institution’s interest in . . . limiting a student’s speech to that which is germane to a
particular academic assignment diminishes as students age. Indeed, arguably the
need for academic discipline and editorial rigor increases as a student’s learning
progresses.” Brown, 308 F.3d at 951 (emphasis omitted).
After citing these cases with approval, we held that “the Hazelwood
framework is applicable in a university setting for speech that occurs in a classroom
as part of a class curriculum.” Axson-Flynn, 356 F.3d at 1289. We formulated the
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inquiry as whether the school’s “decision was reasonably related to legitimate
pedagogical concerns,” giving “substantial deference to educators’ stated pedagogical
concerns.” Id. at 1290 (quotations omitted).
Although the pedagogical concern standard is highly deferential, we also held
that “we would be abdicating our judicial duty if we failed to investigate whether the
educational goal or pedagogical concern was pretextual.” Id. at 1292-93 (emphasis
omitted). Courts “may override an educator’s judgment where the proffered goal or
methodology was a sham pretext for an impermissible ulterior motive.” Id. at 1293.
“So long as the teacher limits speech or grades speech in the classroom in the name
of learning and not as a pretext for punishing the student for her race, gender,
economic class, religion or political persuasion, the federal courts should not
interfere.” Id. at 1293 (quoting Settle, 53 F.3d at 155-56). However, “the Supreme
Court directed courts not to override a faculty member’s professional judgment
‘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.’” Id. (quoting Regents of the Univ. of Mich. v. Ewing, 474
U.S. 214, 225 (1985)). The Axson-Flynn panel concluded that this stringent standard
was met, and thus summary judgment was inappropriate because there was “a
genuine issue of material fact as to whether Defendants’ justification for the script
adherence requirement was truly pedagogical or whether it was a pretext for religious
discrimination.” Id. at 1293.

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B
Pompeo contends that Axson-Flynn is directly on point. She argues that our
case law is settled that “an instructor cannot restrict a student’s speech based on the
instructor’s hostility to the viewpoint expressed in the speech” and “pretextual
explanations for the ‘legitimate’ reason for the restriction of speech will not pass
constitutional muster.” We disagree that our prior opinion placed the “constitutional
question beyond debate” such that any reasonable official would have understood the
conduct at issue in this case was impermissible. Luna, 136 S. Ct. at 308 (quotation
omitted).
Pompeo’s assertion that a college instructor may not restrict school-sponsored
speech based on opposition to the viewpoint expressed in that speech is plainly
incorrect. We have squarely held “that Hazelwood allows educators to make
viewpoint-based decisions about school-sponsored speech.” Fleming, 298 F.3d at
926. The Axson-Flynn opinion expressly notes this rule, 356 F.3d at 1291 (quoting
Fleming, 298 F.3d at 926), along with Justice Souter’s statement that university
“students are inevitably required to support the expression of personally offensive
viewpoints in ways that cannot be thought constitutionally objectionable unless one
is prepared to deny the University its choice over what to teach,” id. (quoting Bd. of
Regents v. Southworth, 529 U.S. 217, 242-43 (2000) (Souter, J., concurring in the
judgment)). Our circuit jurisprudence “entrusts to educators these decisions that
require judgments based on viewpoint.” Fleming, 298 F.3d at 928.

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We held in Axson-Flynn that a court can overrule an educator’s judgment only
if “the proffered goal or methodology was a sham pretext for an impermissible
ulterior motive,” and that religious discrimination is one such impermissible motive.
356 F.3d at 1293. The only analysis offered in our opinion as to what else may
constitute an “impermissible ulterior motive” is a quote from a Sixth Circuit case
listing “race, gender, economic class, religion or political persuasion.” Id. (quoting
Settle, 53 F.3d at 155). Notably absent from that list is viewpoint discrimination,
necessarily so in light of our holding in Fleming, 298 F.3d at 926.2 Thus, contrary to
Pompeo’s assertion, Axson-Flynn did not clearly establish that restrictions imposed
on school-sponsored speech which are motivated by opposition to a student’s

2

Although Pompeo does not argue that defendants were motivated by any of
the potentially impermissible factors explicitly identified in this list, we recognize
that Pompeo’s viewpoint concerns a politically charged topic. However, we do not
read Settle’s reference to “political persuasion,” 53 F.3d at 155, as prohibiting
viewpoint discrimination with respect to opinions that cross some threshold of
political salience. Instead, it seems that the Sixth Circuit was referring to
discrimination based on partisan affiliation. See generally Keyishian, 385 U.S. at
596, 603-10 (holding unconstitutional a requirement that college professors sign a
pledge indicating they are not members of the Communist Party).
We highly doubt that a test based on the degree of a viewpoint’s political
prominence could be practicable. And in Fleming, we specifically stated that schools
retain discretion to bar “inflammatory and divisive statements” in school-sponsored
speech. 298 F.3d at 934. Courts are in poor position to second guess every teacher’s
conclusion that speech used in an assignment was inflammatory rather than merely
controversial, or that a student was disruptive rather than simply passionate. Even
when a school official errs in making these determinations, our case law does not
clearly indicate that a First Amendment violation has occurred. See Axson-Flynn,
356 F.3d at 1287 (“Teachers may frequently make mistakes in grading and otherwise,
just as we do sometimes in deciding cases, but it is the essence of the teacher’s
responsibility in the classroom to draw lines and make distinctions . . . .” (quoting
Settle, 53 F.3d at 155-56) (emphasis omitted)).
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viewpoint are necessarily impermissible. Accordingly, even if we were to accept
Pompeo’s claim that some of the explanations offered by Hinkley and Dever were
intended as cover for their belief that Pompeo’s viewpoint was offensive, clearly
established law would not put defendants on notice that such conduct is
unconstitutional.3
This is not to say that viewpoint discrimination in educational settings is
always desirable, or even fair. As the Supreme Court has noted, our “Nation’s future
depends upon leaders trained through wide exposure to that robust exchange of ideas
which discovers truth out of a multitude of tongues, rather than through any kind of
authoritative selection.” Keyishian, 385 U.S. at 603 (quotation and alteration
omitted). As a matter of policy, certain forms of viewpoint discrimination are
undoubtedly contrary to this ideal. But in the context of school-sponsored speech,
we have recognized that courts must “entrust[] to educators these decisions that

3

Pompeo suggests that the district court erred by distinguishing Axson-Flynn
on the ground that the case concerned religious discrimination. We explained there
that “[t]he religious nature of Axson-Flynn’s refusal to say the offensive words is not
determinative of our disposition of her free speech claim” because the “Supreme
Court has never held that religious speech is entitled to more protection than nonreligious speech.” Axson-Flynn, 356 F.3d at 1292 n.13 (emphasis omitted).
But the religious element of Axson-Flynn is nevertheless important. The
plaintiff in that case prevailed on appeal because we concluded a material dispute
existed as to whether the defendants’ attempt to compel her to speak objectionable
phrases “was truly pedagogical or whether it was a pretext for religious
discrimination.” Id. at 1293. Thus, even though the plaintiff’s religious motivation
for objecting to the compelled speech was irrelevant, the defendants’ potential
hostility to the plaintiff’s religion was key. Pompeo attempts to analogize hostility to
her viewpoint to the religious discrimination claimed in Axson-Flynn, but that
analogy fails because educators are not prohibited from engaging in viewpoint
discrimination under Fleming.
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require judgments based on viewpoint.” Fleming, 298 F.3d at 928; see also
Epperson, 393 U.S. at 104 (“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.”). Regardless of the
competing policy goals that might be considered in assessing whether schoolsponsored speech should be restricted, Axson-Flynn does not clearly prohibit
educators from restricting school-sponsored speech based on viewpoints that they
believe are offensive or inflammatory.
C
Pompeo also contends that defendants’ actions were not reasonably related to
legitimate pedagogical concerns. Her argument appears to be that because there is
evidence that Hinkley and Dever were personally offended by Pompeo’s position, the
court necessarily cannot conclude that any proffered pedagogical motive for their
actions is legitimate. This position requires us to consider whether the pedagogical
concern inquiry is objective or subjective. As we explain, infra, our case law is
unclear as to the correct approach. However, we need not decide the issue because
Hinkley and Dever are entitled to qualified immunity under either standard.
1
As a general matter, the qualified immunity analysis looks to whether an
official’s conduct was objectively reasonable. Gonzales, 590 F.3d at 860. However,
we may consider “the defendant’s intent when his state of mind is an essential
element of the plaintiff’s substantive claim.” Bruning v. Pixler, 949 F.2d 352, 356
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(10th Cir. 1991). In some contexts, a defendant’s subjective state of mind may be
relevant to a First Amendment claim. See Howards v. McLaughlin, 634 F.3d 1131,
1143 (10th Cir. 2011) (“Even if an official’s action would be unexceptionable if
taken on other grounds, when retaliation against Constitutionally-protected speech is
the but-for cause of that action, this retaliation is actionable and subject to recovery.”
(quotations omitted)), rev’d Reichle v. Howards, 132 S. Ct. 2088 (2012). But the
rule stated in Howards, to the extent it remains viable, merely begs the question in
this case.
To state a First Amendment retaliation claim, a plaintiff must show that the
defendant reacted to protected speech. Id. And in Vanderhurst, we held that the
legitimate pedagogical interest inquiry determines whether speech is constitutionally
protected. 208 F.3d at 914. We concluded that a college was “incorrect to bifurcate
as separate arguments (1) that Vanderhurst’s speech was not constitutionally
protected, and (2) that his termination was reasonably related to the College’s
legitimate pedagogical concerns.” Id. Instead, we ruled that “whether Vanderhurst’s
termination reasonably related to the College’s legitimate pedagogical interests is the
test for determining whether his speech fell within the ambit of First Amendment
protection.” Id. We further stated that in assessing the asserted pedagogical
interests, the question is not whether an action taken by school officials “was a
reasonable one” because “a federal court should play no role in judging the
reasonableness of the sanctions which a school levies.” Id. at 916 n.5. Instead,
courts must ask whether the “conduct prompting the sanction, as perceived in good
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faith by the school, in some way violated or vitiated . . . legitimate pedagogical
concerns.” Id. Thus, under Vanderhurst, it appears a court must first conclude that a
plaintiff’s speech was constitutionally protected (in that actions restricting the speech
were not related to pedagogical concerns) before considering whether a school
official acted with subjective animus.4
In light of this precedent, we agree with the district court that it is unclear if
courts should ask whether a defendant’s actions were subjectively retaliatory or
whether the retaliatory actions were objectively unrelated to a pedagogical goal.
Nevertheless, under either standard, we conclude that the actions taken by Hinkley
and Dever were sufficiently related to pedagogical goals that the claimed
unconstitutional nature of their particular conduct was not clearly established. See
Luna, 136 S. Ct. at 308.
2
“[T]he ‘pedagogical’ concept set forth in Hazelwood merely means that the
activity is related to learning” and “is by no means confined to the academic for it
includes discipline, courtesy, and respect for authority.” Corder v. Lewis Palmer
Sch. Dist. No. 38, 566 F.3d 1219, 1228 (10th Cir. 2009) (quotations omitted).

4

Pompeo concedes that Vanderhurst appeared to apply an objective standard
but argues its analysis should be limited to the context of school employment
decisions. Although that case did consider an action taken by a college in response to
a professor’s speech, nothing in our case law suggests Vanderhurst is so limited. At
the very least, a reasonable official could not be certain that the test stated in
Vanderhurst applied only in the employment context. See generally Reichle, 132 S.
Ct. at 2096 (granting qualified immunity because “it was at least arguable that [a rule
governing retaliatory prosecution] extended to retaliatory arrests”).
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Several courts “have established that the pedagogical test may be satisfied simply by
the school district’s desire to avoid controversy within a school environment.” Id. at
1228-29 (quotation omitted); see also id. at 1232 (quoting out-of-circuit authority for
the proposition that “[i]t is well within the parameters of school officials’ authority
. . . to teach civility and sensitivity in the expression of opinions” (alterations in
original)). And in Fleming, we held that a school may restrict school-sponsored
speech “with inflammatory and divisive statements.” 298 F.3d at 934. Similarly, the
Supreme Court has held that “schools, as instruments of the state, may determine that
the essential lessons of civil, mature conduct cannot be conveyed in a school that
tolerates lewd, indecent, or offensive speech.” Fraser, 478 U.S. at 683.
In considering defendants’ entitlement to qualified immunity, we must look to
their individual actions. See Pahls, 718 F.3d at 1233. Pompeo’s complaints about
Hinkley focus on their March 20, 2012, meeting. During that meeting, Hinkley
chastised Pompeo for using inflammatory language, suggesting it could be
considered hate speech, and asked Pompeo to rewrite her paper. Hinkley stated that
it was in Pompeo’s best interest not to return to class. But Pompeo does not claim to
have been expelled from the class by Hinkley. Instead, she describes her status in the
class as “unresolved.” It is undisputed that Pompeo attended class after the meeting
and that Hinkley lacked the power to expel a student from class.5 After the meeting,

5

Pompeo states that “[d]uring the meetings . . . on March 20th, 22nd and 23rd,
it was clear that I was banned from the Images class because of the perceived views
and the language used in my paper.” But she does not identify who made clear to her
that she was “banned” or what was said to give her this impression. We have
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Hinkley asked her superior, Dever, to attend class because she was concerned about
Pompeo being disruptive and was unclear about how Pompeo wished to proceed with
her Desert Hearts paper. Although Pompeo repeatedly refers to Hinkley’s “refusal”
to grade the paper, Pompeo does not claim that she actually requested a grade from
Hinkley following their March 20 meeting. Hinkley states that she would have
graded the paper if Pompeo requested.
From an objective standpoint, Hinkley’s actions are related to legitimate
pedagogical goals. Criticizing a student’s paper, even in harsh terms, and asking her
to rewrite it relate to the pedagogical goals of encouraging critical analysis, avoiding
unsupported generalizations, and maintaining focus on assigned material rather than a
student’s general opinions. And requesting a superior attend class to assist with a
potentially disruptive student cannot be deemed unreasonable.6 See Axson-Flynn,

previously explained that § 1983 plaintiffs must “make clear exactly who is alleged
to have done what to whom, to provide each individual with fair notice as to the basis
of the claims against him or her, as distinguished from collective allegations against
the state.” Robbins v. Okla. ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1250
(10th Cir. 2008). Without any “distinction as to what acts are attributable to whom,
it is impossible for any of these individuals to ascertain what particular
unconstitutional acts they are alleged to have committed.” Id.; see also Pahls, 718
F.3d at 1226 (“[I]t is incumbent upon a plaintiff to identify specific actions taken by
particular defendants in order to make out a viable § 1983 or Bivens claim.”
(quotation and emphasis omitted)).
6

Pompeo states in her affidavit that she was not disruptive in class. But we
must judge the reasonableness of an action from the defendant’s perspective.
Kingsley, 135 S. Ct. at 2474. A plaintiff’s subjective evaluation of her own
performance is of little value. See generally Kelley v. Goodyear Tire & Rubber Co.,
220 F.3d 1174, 1178 (10th Cir. 2000). Pompeo states that she understood the class
syllabus to “allow passionate debate” and “controversy.” Whether she viewed her
passionate class commentary as disruptive does not tell us whether Hinkley did so.
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356 F.3d at 1290 (holding that teachers may restrict speech to “penalize a student for
disruptive classroom behavior”).
Even if the proper test considers a defendant’s subjective state of mind, we
conclude that Hinkley must be granted qualified immunity. Pompeo argues that the
foregoing pedagogical goals were mere pretext, and that Hinkley actually engaged in
these actions because she subjectively took offense to statements in Pompeo’s paper.
But as discussed supra, clearly established law does not prohibit a school official
from restricting statements the educator finds “inflammatory and divisive” in schoolsponsored speech. Fleming, 298 F.3d at 934. At the very least, Hinkley’s actions are
reasonably related to her subjective conclusion that Pompeo’s statements were
inflammatory. See id. at 933 (declining to consider one proffered pedagogical
interest because second interest was valid). Teaching students to avoid inflammatory
language when writing for an academic audience qualifies as a legitimate
pedagogical goal. Corder, 566 F.3d at 1228 (pedagogical concerns include
“discipline, courtesy, and respect for authority”).
We reach the same conclusion as to Dever. Pompeo claims that Dever scolded
her at the March 23 meeting, telling her that use of the word “barren” was offensive,

To the extent that Pompeo argues that defendants’ conduct was inconsistent with the
course syllabus and materials, the Supreme Court has squarely rejected the
proposition that school officials may only restrict speech “pursuant to specific written
regulations” because such a requirement “could unduly constrain the ability of
educators to educate.” Hazelwood, 484 U.S. at 273 n.6.
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and that Dever conveyed to Pompeo that she was “a disgrace.”7 Pompeo further
contends that Dever threatened her with consequences, which she took to mean a
poor grade, if she persisted in using the word “barren” in a revised paper. The email
exchange in which Dever makes this comment is included in the record. Following
Pompeo’s statement that she will likely use the term “barren,” Dever states that the
term “has been used historically to punish and degrade women.” And in response to
Pompeo’s statement that she did not “like to be told what words I may and may not
use, ever,” Dever explains that her role is to teach students to write essays “that
speak to a general, academic audience with respect.” She states that word choice is
ultimately up to Pompeo, but that her “choices have consequences.”
As with Hinkley, even if we conduct a subjective inquiry, we conclude that
Dever is entitled to qualified immunity. Dever’s challenged actions are reasonably
related to the legitimate pedagogical goal of deterring students from using words in a
class assignment that the teacher subjectively finds inappropriate. See Axson-Flynn,
356 F.3d at 1292 (“The school’s methodology may not be necessary to the
achievement of its goals and it may not even be the most effective means of teaching,
but it can still be ‘reasonably related’ to pedagogical concerns.” (emphasis omitted)).
Our case law does not suggest that federal courts are in the business of determining
7

Pompeo states that she “was given no choice other than to take the
independent study course with” Dever. But she does not indicate whether Dever
personally said or did something in particular to convey that the independent study
was mandatory. See Pahls, 718 F.3d at 1225-26 (“When various officials have taken
different actions with respect to a plaintiff, the plaintiff’s facile, passive-voice
showing that his rights ‘were violated’ will not suffice.”). Dever also lacked
authority to expel a student from class.
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whether a term is actually inappropriate for an academic audience, to the extent
appropriateness can be objectively defined. Short of turning every classroom into a
courtroom, we must “entrust[] to educators these decisions that require judgments
based on viewpoint.” See Fleming, 298 F.3d at 928.
III
In assessing defendants’ claims of qualified immunity, we are mindful of the
Supreme Court’s admonition to “define the clearly established right at issue on the
basis of the specific context of the case.” Tolan, 134 S. Ct. at 1866 (quotations
omitted). Pompeo claims a right to use language in a course assignment that her
professors found to be inflammatory without being criticized or pressured to make
revisions. Because we conclude that such a right is not clearly established, the
district court’s grant of summary judgment in favor of defendants is AFFIRMED.

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