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Does a Student Have a Constitutional Right to Criticize Lesbianism in a University Film Course? A Federal Court Says Yes

by Richard Fossey, Todd A. DeMitchell & Suzanne Eckes - June 03, 2016

Do students have a First Amendment right to write about controversial topics and express controversial ideas in a university classroom? In some cases they do, as a federal court in New Mexico recognized in a brief opinion released in 2014. But then the court reversed itself a year later.

Everyone in higher education supports the concept of academic freedom for university professors. As the American Association of University Professors (1940) defined the term, academic freedom includes the right of professors “to full freedom in research and in the publication of results” (p. 14), and “to freedom in the classroom in discussing their subject” (p. 14). Indeed, American universities could not perform their mission if professors did not enjoy the freedom to teach, write, and research without fear of retribution.

But what about students? Do they also enjoy academic freedom to write about controversial topics and express controversial ideas in a university classroom? In some cases they do, as Judge Christina Armijo, a New Mexico federal judge, recognized in a brief opinion released in 2014.


Caroline Hinkley, a visiting faculty member at the University of New Mexico, taught a course in the Department of Cinematic Arts titled: “Images of (Wo)men: From Icons to Iconoclasts.” Hinkley chose a course topic that would “spark ‘incendiary’ class discussions” (Pompeo v. University of New Mexico, 2014, p. 1188) and she informed students in the syllabus that “it’s quite clear that we do not expect anyone to necessarily agree with the positions and arguments advanced in our work. There’s controversy built right into the syllabus, and we can’t wait to hash out our differences” (p. 1188).

Monica Pompeo enrolled in Hinkley’s class but ran into trouble when she submitted a written critique of the film Desert Hearts that portrays a lesbian relationship. As Judge Armijo observed in her review of the dispute, Pompeo apparently “took Hinkley at her word as to the freewheeling character of the forum” (p. 1188), and the four-page paper she submitted as a class assignment “was harshly critical of the lesbian characters portrayed in the film and of lesbianism in general” (p. 1188).

Hinkley graded and returned papers submitted by Pompeo’s classmates. However, as outlined by Judge Armijo in her 2014 opinion, Hinkley “ignor[ed] representations in the syllabus concerning her openness to differing views” (p. 1188) and refused to read beyond the first two pages of the paper Pompeo submitted. Hinkley characterized Pompeo’s paper as inflammatory and offensive and returned it to her without assigning a grade. At a later meeting, Hinkley accused Pompeo of engaging in hate speech and told her it would be in her interest to drop the class.

Pompeo took the matter up with Hinkley’s supervisor, Susan Dever, who supported Hinkley. According to Pompeo, Dever warned Pompeo that she would suffer “consequences” (p. 1189) if she continued to describe lesbianism as “barren” (p. 1189).


Pompeo sued the University of New Mexico, Caroline Hinkley, and Susan Dever, alleging a violation of her First Amendment rights. The University defendants moved to dismiss her case, but Judge Armijo permitted Pompeo’s case to go forward.

In analyzing the substance of Pompeo’s constitutional claims, Judge Armijo asked three questions: (a) Is Pompeo’s speech protected speech? (b) In what type of forum did Pompeo’s speech occur? (c) Finally, do the justifications for restricting speech proffered by the defendants satisfy the First Amendment standard applicable to the type of forum in question?

Judge Armijo quickly answered the first two questions. She noted that all parties agreed that Pompeo’s speech had First Amendment protection, and that Pompeo’s written criticism of the film Desert Hearts had taken place in a university classroom, which Judge Armijo designated as a nonpublic forum. Thus, the central question before the judge was this: assuming Pompeo’s allegations were true, had the defendants censored her speech based on legitimate pedagogical concerns?

Judge Armijo noted that the Tenth Circuit Court of Appeals (which has jurisdiction over the federal courts in New Mexico) had specifically ruled that an educational institution may restrict a student’s curricular speech based on viewpoint, “but only if [the restrictions] are reasonably related to legitimate pedagogical concerns” (p. 1189, emphasis supplied by the court).

The defendants argued that any censorship of Pompeo’s speech was based on legitimate pedagogical concerns, but Judge Armijo rejected this argument based on the language in Hinkley’s syllabus. “The First Amendment violation in this case arises from the irreconcilable conflict between the all-views-are-welcome description of the forum and Hinckley’s only-those-views-with-which-I-personally-agree-are-acceptable implementation of the forum,” (p. 1190) she observed. In Judge Armijo’s view, Pompeo had made out a case “that no reasonable educator could have believed that by criticizing lesbianism, [Pompeo’s] critique fell outside the parameters of the class, given the description of the class set out in the syllabus” (p. 1190). The judge noted this was not a case in which a student had consciously disregarded reasonable standards for completing an assignment. Furthermore, Pompeo’s criticism of lesbianism took place in a classroom setting that was designed for older students “who could be expected to have the emotional and intellectual maturity to deal with controversial or even invidious opinions” (p. 1190).

Indeed Judge Armijo questioned whether a university could have a “legitimate pedagogical interest in inviting students to engage in ‘incendiary’ and provocative speech on a topic and then punishing a student because he or she did just that” (p. 1190). On the contrary, Judge Armijo ruled, “Simply because [Pompeo] expressed views about homosexuality that some people may deem offensive does not deprive her views of First Amendment protection” (p. 1190).

Moreover, the judge ruled Pompeo had not only made out a valid First Amendment claim against Hinkley, but she had also made a plausible claim that Dever, Hinkley’s supervisor, had violated her constitutional rights as well. Pompeo stated factual allegations showing that Dever “ratified” Hinkley’s censorship (p. 1190) and that she had consciously perpetuated a censorship policy that deprived Pompeo of her First Amendment rights.


Judge Armijos’s 2014 decision clearly favored Monica Pompeo. It denied the University of Mexico’s motion for summary judgment and flatly ruled that Pompeo had a First Amendment right to express her controversial views in a written assignment.

And then Judge Armijo reversed herself. In a 2015 decision issued almost a year after her 2014 opinion, the judge ruled in favor of the University of New Mexico defendants and dismissed Pompeo’s case.

Why the abrupt change? Apparently, Judge Armijo examined additional evidence after writing her original opinion and came to a different conclusion about the interactions between Pompeo and her professors.

Specifically, Judge Armijo noted that she had not been presented with Pompeo’s paper, Professor Hinkley’s written comments, or the email exchanges of the various parties at the time she wrote her 2014 opinion. After viewing this additional evidence, Judge Armijo’s characterizations of the communications between Pompeo and Professors Hinkley and Dever were considerably revised. For example, after reading Professor Hinkley’s written remarks on Pompeo’s controversial paper, the judge concluded that the instructor’s comments were “thoughtful and appropriately professorial” and designed to engage Pompeo in “academic dialogue” (p. 4).

In addition, Judge Armijo reviewed extensive email communications between Pompeo and Professor Dever and concluded that Dever had generously allowed Pompeo to continue in the course as an independent study under Dever’s personal direction and that Dever had repeatedly interacted with Pompeo about the quality of Pompeo’s written work.

Finally, and perhaps most importantly, Judge Armijo concluded in her revised opinion that the law was unclear regarding Pompeo’s First Amendment right to express her controversial views in a written assignment.  Thus Professor Hinkley had not had “fair warning” that she might be held liable for the way she responded to Pompeo’s paper.


Judge Armijo’s 2014 opinion held that university instructors can be held responsible for the language they place in their syllabus. The judge’s ruling turned her conclusion that Hinkley had invited students to share controversial views on the central topic of a university course and then censored a viewpoint that was unwelcome to her.

Judge Armijo’s second opinion reversed direction and found that the law was unsettled regarding a student’s First Amendment rights in a university classroom. Moreover, the judge concluded that there may have been legitimate pedagogical justifications for the way both Professor Hinkley and Professor Dever responded to Pompeo’s paper.

Federal judges seldom reverse direction as dramatically as Judge Armijo did when she first upheld Pompeo’s First Amendment right to submit a controversial paper on lesbianism and then dismissed Pompeo’s case on a motion for summary judgment.  The judge’s two conflicting opinions, when reviewed together, may be confusing to many readers.

Nevertheless, the Pompeo case has important implications for the higher education community. First, students cannot say or write whatever they please in a classroom setting. Federal courts have made clear in several decisions that instructors may censor student speech in curricular settings based on “legitimate pedagogical concerns” (Brown v. Li, 2002, p. 948; Hazelwood School District v. Kuhlmeier, 1988, p. 273). For example, in a Texas case, a federal judge upheld an instructor’s decision not to allow a student to make a classroom presentation about abortion in a communication course based on the instructor’s belief that a presentation on such a sensitive topic “would be disruptive and would improperly shift the focus of the lesson to the topic of abortion rather than to communication skills” (O’Neal v. Falcon, 2009, p. 986).

However, instructors who wish to assert the right to restrict a student’s expression in a classroom setting should clearly explain any boundaries in the course syllabus; and instructors should not censor a student’s point of view simply because they find these expressions personally offensive.  

In the Pompeo case, after examining materials not initially presented to her, Judge Armijo concluded that there was solid evidence to suggest that university instructors at the University of New Mexico were responding to Pompeo’s provocative assignment based on legitimate pedagogical considerations and not naked hostility to Pompeo’s point of view.



American Association of University Professors (1940). 1940 Statement of Principles on Academic Freedom and Tenure. http://www.aaup.org/report/1940-statement-principles-academic-freedom-and-tenure

Brown v. Li, 308 F.3d 939 (9th Cir. 2002).

Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).

Pompeo v. Board of Regents of the University of New Mexico, Civ. No. 13-0833 MCA/CG (D.N.M. Sept. 22, 2015).

Pompeo v. Board of Regents of the University of New Mexico, 58 F. Supp. 3d 1187 (D.N.M. 2014).

O’Neal v. Falcon, 668 F. Supp. 2d 979 (W.D. Tex. 2009)

Cite This Article as: Teachers College Record, Date Published: June 03, 2016
https://www.tcrecord.org ID Number: 21017, Date Accessed: 11/27/2021 10:26:46 PM

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About the Author
  • Richard Fossey
    University of Louisiana, Lafayette
    E-mail Author
    RICHARD FOSSEY is the Paul Burdin Endowed Professor of Education at the University of Louisiana at Lafayette.
  • Todd DeMitchell
    University of New Hampshire
    E-mail Author
    TODD A. DeMITCHELL is the John & H. Irene Peters Professor of Education at the University of New Hampshire.
  • Suzanne Eckes
    Indiana University
    SUZANNE E. ECKES is a Professor in the Department of Educational Leadership and Policy Studies at Indiana University.
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