10th Circuit Rules Profs. Decide Free-Speech Limits in College Papers

by Victoria Prieskop

The 10th Circuit ruled March 28, 2017 that the University of New Mexico had the right to reject an academic paper which called a lesbian-themed film “entirely perverse in its desire and attempt to reverse the natural roles of man and woman.”

In 2012, Monica Pompeo, a part-time student, took a class titled “Images of (Wo)men: From Icons to Iconoclasts,” taught by adjunct professor Caroline Lawson Hinkley at UNM. When assigned a paper on the 1985 film “Desert Hearts,” Pompeo critiqued the film as “championing the barren wombs of these women” and referred to lesbianism as a “very death-like state as far as its inability to reproduce naturally.”

The student, Monica Pompeo, sued in 2013 for alleged violations of her First Amendment rights. The course syllabus said content would be provocative and that students were expected to conduct themselves with “respect and care.” The instructor, Caroline Hinkley, also warned students to distinguish opinions from critical thought, and said she’d ask them to rewrite analytic papers that didn’t meet that standard.

Pompeo wrote that the film, a lesbian romance, provides “no reason for anyone other than lesbians who are unable to discern bad film from good film to endure” it. About the actors, Pompeo wrote, “their general appearance conjures the cliché ‘you can put lipstick on a pig, but it’s still a pig.’”

She described one of the characters as “still sexually vibrant, in spite of her perverse attraction to the same sex,” but lesbianism in general as “a very death-like state as far as its inability to reproduce naturally.” In discussing another scene in the film, Pompeo said that the “only signs of potency in the form of the male cock exist in the emasculated body” of one character’s fiancé, and that the water in the bathing scene was “essentially drowning out any chance of life considering their fatal attraction to one another.”

Over all, 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.”

According to a federal judge’s ruling, Hinkley returned the paper to Pompeo without a grade but with comments on its academic value. After multiple meetings with Hinkley and administrators at UNM, Pompeo agreed to finish the class in an independent-study setting, but eventually dropped it.

Pompeo claimed she felt she had been “quietly removed from the classroom,” and that Hinkley had accused her of “hate speech.” Pompeo filed a grievance with the university requesting, and eventually receiving, a refund of her tuition for the class.

After Pompeo sued and the university moved for dismissal on the basis of qualified immunity, U.S. District Judge M. Christina Armijo initially declined on the basis that the university had not proved that the restrictions of Pompeo’s free speech were based on “legitimate pedagogic concerns.”

But a later ruling, also by Judge Armijo, granted a dismissal. She found “the factual evidence proffered in the motion for summary judgment and the response was not before the court” and that once she’d considered all the facts of the case, “[t]he court concludes that it erred in its Sept. 29, 2014, memorandum opinion and order.”

Pompeo appealed, and on Tuesday a 10th Circuit panel upheld the lower court’s order. The panel said “schools must be empowered at times to restrict the speech of their students for pedagogical purposes.”

The opinion, penned by Circuit Judge Carlos F. Lucero on behalf of himself and Circuit Judge David M. Ebel held that “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,” which the court could not support.

Pompeo was represented in her appeal by Robert J. Gorence of Gorence & Oliveros in Albuquerque. The university was represented by Sean Olivas of Keleher & McLeod, also in Albuquerque. Neither attorney could be reached for comment by press time.

UNM spokeswoman Dianne Anderson said the university was pleased with the panel’s finding.

“On behalf of the faculty involved in this case, we are pleased that the 10th Circuit’s opinion provides a more complete perspective on the facts and affirms there was insufficient evidence that the student’s free speech rights were violated,” Anderson said.

U.S. Supreme Court nominee Neil Gorsuch – a 10th Circuit judge – considered the case but did not participate in the opinion.

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