Mark Oyama v. University of Hawaii , 813 F.3d 850 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK L. OYAMA, No. 13-16524
Plaintiff-Appellant,
D.C. No.
v. 1:12-cv-00137-
HG-BMK
UNIVERSITY OF HAWAII; CHRISTINE
SORENSEN; JEFFREY MONIZ; JOHN
DOES, 1–25; JANE DOES, 1–25, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Helen W. Gillmor, Senior District Judge, Presiding
Argued and Submitted
June 9, 2015—Honolulu, Hawaii
Filed December 29, 2015
Before: Kim McLane Wardlaw, Marsha S. Berzon,
and John B. Owens, Circuit Judges.
Opinion by Judge Wardlaw
2 OYAMA V. UNIVERSITY OF HAWAII
SUMMARY*
Civil Rights
The panel affirmed the district court’s summary judgment
in an action brought by a secondary education candidate
alleging that the University of Hawaii’s denial of his
application to become a student teacher on the basis of his
speech violated his First Amendment and due process rights.
The panel held that in the context of a public university’s
professional certification program, the university may
evaluate a student’s speech, made in the course of the
program, in determining the student’s eligibility for
certification without offending the First Amendment under
certain circumstances. In this case, because the University of
Hawaii’s decision to deny plaintiff’s student teaching
application directly related to defined and established
professional standards, was narrowly tailored to serve the
University’s core mission of evaluating plaintiff’s suitability
for teaching, and reflected reasonable professional judgment,
the University did not violate plaintiff’s First Amendment
rights. In addition, because the University granted plaintiff
adequate procedural protections in denying his student
teaching application, it did not violate plaintiff’s due process
rights.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
OYAMA V. UNIVERSITY OF HAWAII 3
COUNSEL
Eric A. Seitz (argued), Della Au Belatti, and Sarah R. Devine,
Honolulu, Hawaii, for Plaintiff-Appellant.
Christine Tamashiro (argued), Darolyn H. Lendio, and Ryan
M. Akamine, Honolulu, Hawaii, for Defendants-Appellees.
Greg Lukianoff, Philadelphia, Pennsylvania, for Amicus
Curiae Foundation for Individual Rights in Education.
Eugene Volokh, UCLA School of Law, Los Angeles,
California, for Amicus Curiae Student Press Law Center.
OPINION
WARDLAW, Circuit Judge:
The University of Hawaii denied secondary education
candidate Mark L. Oyama’s application to become a student
teacher, a prerequisite for recommendation to the State of
Hawaii’s teacher certification board. This appeal from the
district court’s grant of summary judgment to the University
implicates the constitutional balance between two
prerogatives of a public university’s professional certification
program: promoting open discourse among its students and
limiting certification to candidates suitable for entry into a
particular profession. We must delineate the scope of the
University’s authority to deny a teaching candidate’s student
teaching application on the basis of the candidate’s speech.
We conclude that the University did not violate Oyama’s
First Amendment rights because its decision related directly
to defined and established professional standards, was
4 OYAMA V. UNIVERSITY OF HAWAII
narrowly tailored to serve the University’s core mission of
evaluating Oyama’s suitability for teaching, and reflected
reasonable professional judgment. In addition, because the
University provided adequate procedural protections in
denying Oyama’s application, neither it nor its agents
violated Oyama’s procedural due process rights. We
therefore affirm the district court’s grant of summary
judgment to the University.
I.
Mark Oyama earned an undergraduate degree in
mathematics from the California Institute of Technology,
followed by a Master’s Degree in physics from the University
of Hawaii. He then enrolled in the University of Hawaii’s
post-baccalaureate secondary education certification program
at Manoa.
A. Hawaii’s Post-Baccalaureate Certificate in Secondary
Education Program
Under Hawaii law, “[n]o person shall serve as a half-time
or full-time teacher in a public school without first having
obtained a license.” Haw. Rev. Stat. § 302A-805. The
purpose of teacher licensing, or certification, is to “ensure
that education professionals possess the appropriate training,
preparation, and competencies for teaching.” Univ. of Haw.
at Manoa, Secondary Teacher Education Program Handbook
26 (rev. 2009) (“Handbook”).
The University of Hawaii at Manoa is Hawaii’s only
nationally accredited institution that recommends students for
certification as secondary school teachers. Id. at i. The
University offers a Post-Baccalaureate Certificate in
OYAMA V. UNIVERSITY OF HAWAII 5
Secondary Education (PBCSE) Program (the “Program”) to
students who have bachelor’s degrees and wish to obtain
certification as secondary school teachers.1 According to the
Program’s handbook, the Program’s goal is “to employ and
prepare educators who are knowledgeable, effective, and
caring professionals.” Id. at 8. The “caring” component
seeks to “advanc[e] social justice and overcom[e] both
discrimination and oppression” and “requires a high level of
professionalism demonstrated through ethical behavior,
competence, reflection, fairness, respect for diversity, and a
commitment to inclusion and social responsibility.” Id. at
8–9. The Program’s requirements include coursework and
one semester of student teaching. Admission to the Program
does not guarantee admission to student teaching. Rather,
students must submit a Student Teaching Application and
must meet all student teaching requirements set forth in the
Program’s handbook. For example, a student teacher must
“[a]ct, speak, and dress like a teacher.”
The Program’s student teaching requirements reflect the
many regulations and policies governing admission to the
teaching profession in Hawaii. First, the University must
comply with the Hawaii Department of Education’s policies
and regulations. Pursuant to Department of Education Policy
No. 5600, for example, the University may approve
candidates for student teaching only “upon verification . . . of
their ability to function effectively in Department
classrooms.” Second, the University must comply with the
Hawaii Teacher Standards Board’s (HTSB) teacher licensing
1
The Program is a part of the College of Education at the University of
Hawaii at Manoa. For purposes of this appeal, it is not necessary to
distinguish between the College of Education and the University.
Accordingly, we refer to both as the “University.”
6 OYAMA V. UNIVERSITY OF HAWAII
and ethical standards. HTSB standards require teachers to,
among other things, protect student safety, create an inclusive
learning environment for all students, and demonstrate
professionalism. Finally, the University is required to uphold
the standards of its accrediting organization, the National
Council for Accreditation of Teacher Education (NCATE).
See Nat’l Council for Accreditation of Teacher Educ.,
Standards for Professional Development Schools 11 (2001)
(explaining that accredited institutions must “develop criteria
consistent with state and national standards for candidates’
admission to and completion of the preparation program and
make recommendations for candidate certification based on
the standards”).
B. Oyama’s Performance in the PBCSE Program
In the summer of 2010, Oyama enrolled in the
University’s PBCSE Program. Oyama began his coursework
and completed a field experience practicum at a local middle
school. During this period, several faculty members
separately contacted Program administrators to express their
concerns about Oyama’s suitability for the teaching
profession.
Oyama’s statements concerning sexual relationships
between adults and children were of central concern to the
faculty. While taking Dr. Ratliffe’s class on “Educational
Psychology: Adolescence and Education,” Oyama was
assigned to write a reflection about a video entitled “Growing
Up Online.” Oyama wrote:
Personally, I think that online child predation
should be legal, and find it ridiculous that one
could be arrested for comments they make on
OYAMA V. UNIVERSITY OF HAWAII 7
the Internet. I even think that real life child
predation should be legal, provided that the
child is consentual [sic]. Basically from my
point of view, the age of consent should be
either 0, or whatever age a child is when
puberty begins.
When Dr. Ratliffe discussed these statements with Oyama, he
said that “it would be fine” for a twelve-year-old student to
have a “consensual” relationship with a teacher. When Dr.
Ratliffe explained that state law would require Oyama to
report such conduct, Oyama stated that he would obey the
law and report the relationship, but still believed that such a
“consensual” relationship was not wrong. Dr. Ratliffe
contacted the Director of the Secondary Program, Dr. Moniz,
about these statements, explaining that, while she did not
“mind that [Oyama] has opinions that are different from other
people’s,” she was concerned that Oyama “may not be aware
of and in agreement with safety issues about the adolescents
who will be in his care.” She cautioned that, “because of his
lack of sensitivity to and empathy with others and lack of
self-awareness at this time, we should be very careful about
accepting him as a teacher candidate.”
Another concern stemmed from Oyama’s comments
about teaching students with disabilities. For example, in his
class on “Educating Exceptional Students in Regular
Classrooms – Secondary,” Oyama expressed the belief that
“if the disability is sufficiently severe and not of a physical
nature . . . there is little benefit to inclusion for the disabled
student” in the classroom environment. Oyama also wrote
that it is not reasonable to expect secondary school teachers
to have the “extremely diverse skillset” needed to teach the
range of grade levels presented in a mainstream classroom
8 OYAMA V. UNIVERSITY OF HAWAII
that includes students with learning disabilities. In another
assignment, Oyama asserted that nine of ten special education
students he encountered were “fakers” and explained that he
was “not convinced that many ‘disabilities’ are actual
disabilities or medically-based neurological conditions, but
are rather the crude opinions of psychologists and
psychiatrists.” Mr. Siegel, Oyama’s professor, informed Dr.
Moniz of his “serious concerns regarding Mark Oyama
entering the teaching profession.” Mr. Siegel also noted his
concern to Oyama, clarifying that his concern was “not based
on [Siegel’s] opinion,” but rather on legal standards and his
understanding, “based on [his] 43 years as an educator,” of
the criteria schools consider in evaluating prospective
teachers.2
Oyama’s performance in a field experience program at a
nearby middle school corroborated many of his professors’
concerns. In the Field Experience Evaluation Form, several
dispositions are listed, which are evaluated as “unacceptable,”
“acceptable,” or “target,” the highest rating.3 Oyama received
multiple ratings of “unacceptable” and no ratings of “target.”
In the accompanying Observation/Participation Evaluation,
Oyama received an “unacceptable” rating as to the ability to
2
Oyama made several other statements that concerned his professors
and which they relayed to Dr. Moniz. One professor expressed concern
that Oyama said that “he thinks about suicide every day.” Professors also
criticized Oyama’s teaching style, his inability to work collaboratively
with others, and his unwillingness to accept suggestions from his
colleagues and supervisors.
3
The evaluation form states that “candidates should demonstrate overall
ratings of ‘acceptable’ or ‘target’ by the end of the field experience;
ratings of ‘unacceptable’ may require a Plan of Assistance and/or
result in a failing grade” (emphasis and bold in original).
OYAMA V. UNIVERSITY OF HAWAII 9
teach effectively, work collaboratively with colleagues,
respond to suggestions from supervisors, and demonstrate the
level of professionalism expected of middle school teachers.
Oyama’s supervising instructor, Dr. Irv King, concluded,
“My overall impression is that Mark would not do well as a
middle school teacher.”
C. Denial of Admission to the Student Teaching Program
In January 2011, Oyama applied to the PBCSE Student
Teaching Program. In a letter dated July 8, 2011, Dr. Moniz
informed Oyama his application had been denied. While
noting that Oyama had clearly met the “minimum” academic
requirements, Dr. Moniz explained the University’s “duty,”
pursuant to Department of Education Policy No. 5600, to
“verify your overall ability to function effectively as a teacher
in a Hawaii Department of Education school.” Dr. Moniz
noted that a “number of factors raised the College of
Education’s concern,” specifying several bases for the
University’s decision. He explained:
[T]he views you have expressed regarding
students with disabilities and the
appropriateness of sexual relations with
minors were deemed not in alignment with
standards set by the Hawaii Department of
Education, the National Council for the
Accreditation of Teachers (NCATE) and the
Hawaii Teacher Standards Board (HTSB).
Dr. Moniz further explained that Oyama’s “endorsement of
sexual relationship[s] between adults and minors, as well as
between teachers and students” was in tension with Hawaii
Department of Education rules expressly prohibiting sexual
10 OYAMA V. UNIVERSITY OF HAWAII
contact between teachers and students or minors, see Haw.
Admin. Rules, § 8-54-9, and with the HTSB’s requirement
that teachers protect students’ safety, see HTSB Code of
Ethics, Principle I. In sum, Dr. Moniz found that Oyama’s
understanding of sexual relationships between adults and
minors, as well as between teachers and students, was
contrary to the “legal and ethical guidelines imposed by the
State.” Dr. Moniz wrote that “[s]uch a matter is serious
enough in nature that, taken alone, [it] warrants a denial of
you [sic] student teaching application” (emphasis added).
Dr. Moniz added, however, that “other issues . . . support
the denial of your application.” He recounted several
comments by Oyama that “demonstrated a lack of empathy
and understanding of students with disabilities.” He noted
that these comments, “along with your professor’s assessment
that you have been unable to demonstrate any sort of
willingness to accommodate students with disabilities,” were
“in opposition” to HTSB and NCATE standards. Dr. Moniz
specifically discussed the inconsistency between, for
example, Oyama’s expressed view that “if a disability is
sufficiently severe and not of a physical nature . . . there is
little benefit to inclusion for the disabled student” and both an
HTSB standard requiring teachers to “[p]rovide services to
students in a nondiscriminatory manner” and an NCATE
standard requiring teachers to demonstrate professional
dispositions necessary to teach “all students,” including those
“with exceptionalities.” Oyama had therefore been unable to
demonstrate the requisite Professional Disposition to enter the
teaching profession.
Finally, citing the HTSB’s “right to deny licensing to
teachers who exhibit any behavior that is [in] opposition to
the standards and ethics imposed by the State,” Dr. Moniz
OYAMA V. UNIVERSITY OF HAWAII 11
noted the “unacceptable” ratings in Oyama’s field experience
evaluation, which corroborated Oyama’s professors’
concerns. Dr. Moniz concluded, “[W]e are not able to verify
your overall ability to function effectively in a school
setting. . . . At this time, we do not feel that you meet basic
HTSB standards or standards for the profession set by our
accreditors.”
D. Oyama’s Administrative Appeal
Oyama first responded to Dr. Moniz’s denial letter in a
July 18, 2011 letter to Dr. Moniz and the Academic
Grievance Committee seeking “an amicable remedy.” While
disputing Dr. Moniz’s conclusions based on his statements,
Oyama noted that any statements he had made were “in an
academic, intellectual setting.” He argued that the University
had violated his right of free speech and violated its own rules
by failing to give him timely notice and not obtaining his
signature on the field evaluation form. Nevertheless, Oyama
proposed that the College of Education refund all tuition
payments in exchange for his forfeiting all “credits and/or
grades,” and he would not become a classroom teacher. Dr.
Moniz rejected this offer and advised Oyama of his “right to
appeal in writing via the Office of the Dean of Students.”
Oyama next timely appealed the denial of his student
teaching application by filing an academic grievance
complaint with the Dean of the College of Education,
Christine Sorensen. Dean Sorensen reviewed the decision
and convened a three-person committee, including officials
from within and outside the College of Education, to
investigate and review Oyama’s academic grievance
complaint. The committee interviewed Oyama and three
professors of Oyama’s choice.
12 OYAMA V. UNIVERSITY OF HAWAII
On November 17, 2011, the grievance committee issued
its report and findings to Dean Sorensen for her
consideration. The report concluded that Oyama “should not
be allowed to student teach since dispositions as well as
comments and statements made during classes and our
interview are serious matters of concern.” It also found that
the University committed “two violations” of its own
procedures: it failed to timely notify Oyama of the standards
for advancement in the academic program, and it failed to
provide Oyama with his field experience evaluations.
In a letter dated December 15, 2011, Dean Sorensen
informed Oyama of her final decision. Citing “the standards
approved by the state for Hawaii’s teachers and the NCATE
standards under which the licensing programs operate,” Dean
Sorensen concluded that (i) the department had provided a
proper basis for rejecting Oyama’s application to student
teach; (ii) the University provided Oyama notice of the
applicable standards in the Program’s handbook and other
documents; and (iii) the University should have notified
Oyama about its “dispositional concerns” in a timely manner
to allow him to make an informed decision about his future
in the program and avoid incurring additional expenses.
Dean Sorensen accordingly proposed reimbursing Oyama for
certain expenses and allowing him to withdraw from certain
courses, on the condition that Oyama release all claims
related to his participation in the program.4 Dean Sorensen
4
We note that the University’s failure to give Oyama timely notice of
its concerns does not affect the ultimate validity of its conclusions.
Although Dean Sorensen’s offer indicates that the violation of the
University’s regulations may have supported monetary relief based on
Oyama’s reliance, that issue is not relevant to this case, which concerns
only Oyama’s First Amendment and procedural Due Process rights.
OYAMA V. UNIVERSITY OF HAWAII 13
emphasized the University’s “responsibility to ensure that
candidates in the state-approved teacher education program
meet all standards and to recommend an individual to the
licensing agency only when we feel a candidate meets these
expectations.”
E. District Court Proceedings
Oyama rejected that offer. Instead, he filed a complaint
against the University of Hawaii and university officials
alleging violations of the First Amendment and the Due
Process Clause of the Fourteenth Amendment.5
Granting the University’s motion for summary judgment,
the district court concluded that because the individual
defendants6 did not violate Oyama’s First and Fourteenth
Amendment rights, the individual defendants were entitled to
qualified immunity.7 To analyze Oyama’s First Amendment
claim, the district court relied upon student speech cases,
5
Oyama’s complaint named as defendants the University of Hawaii,
Sorensen, and Moniz. For purposes of this appeal, we refer to all
Defendants-Appellees as the “University.” Oyama’s complaint also
alleged violations of state law and substantive due process. The district
court rejected those claims, and Oyama does not appeal those rulings.
6
The district court granted summary judgment to the University based
on the Eleventh Amendment doctrine of sovereign immunity. Oyama did
not appeal that determination.
7
The district court also determined that because Sorensen and Moniz did
not violate Oyama’s constitutional rights, they were entitled to qualified
immunity. The University has not asserted a qualified immunity defense
on appeal. At oral argument, the University expressly urged the panel not
to consider qualified immunity. Accordingly, we do not reach the issue
of qualified immunity.
14 OYAMA V. UNIVERSITY OF HAWAII
including the Supreme Court’s decision in Hazelwood School
District v. Kuhlmeier, 484 U.S. 260 (1988), and Judge
Graber’s opinion in Brown v. Li, 308 F.3d 939 (9th Cir.
2002), which extended Hazelwood to the university setting.8
Applying these cases, the district court concluded that
University administrators had made an “academic decision
based on professional judgment” that “was reasonably related
to a legitimate pedagogical purpose – meeting the Hawaii and
National teacher standards.” Echoing Judge Graber’s
statement that “the First Amendment does not require an
educator to change the assignment to suit the student’s
opinion or to approve the work of a student that, in his or her
judgment, fails to meet a legitimate academic standard,”
Brown, 308 F.3d at 949, the district court reasoned that the
“First Amendment does not require Defendants to accept
Plaintiff in a student teaching program if in their judgment he
did not meet State and National teaching standards.” The
district court also concluded that the “University afforded
[Oyama] adequate procedural due process.” Oyama timely
appeals.
II.
“We review the district court’s grant of summary
judgment de novo.” Nigro v. Sears, Roebuck & Co., 784 F.3d
495, 497 (9th Cir. 2015). “[W]e may affirm based on any
ground supported by the record.” Johnson v. Riverside
Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008).
8
The portion of Judge Graber’s opinion in Brown applying Hazelwood
in the university setting did not command a majority of the panel.
OYAMA V. UNIVERSITY OF HAWAII 15
III.
A. First Amendment Claim
Oyama argues that the University’s decision to deny his
student teaching application violated his First Amendment
right to freedom of speech. Oyama equivocates, however, on
the question of which First Amendment doctrine applies to
his claim. Oyama first characterizes the University’s decision
as “retaliation for [his] personal opinions,” a characterization
evocative of the public employee speech doctrine first
recognized in Pickering v. Board of Education, 391 U.S. 563(1968). See id. at 568 (addressing the “balance between the
interests of the teacher, as a citizen, in commenting upon
matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services
it performs through its employees”). Oyama then invokes
student speech doctrine, quoting the Supreme Court’s classic
observation that students do not “shed their constitutional
rights to freedom of speech or expression at the schoolhouse
gate.” Tinker v. Des Moines Cmty. Sch. Dist., 393 U.S. 503,
506 (1969).
We understand the hybrid nature of Oyama’s First
Amendment claim. On the one hand, Oyama was a student
in an academic setting. On the other hand, Oyama was a
candidate for a certification that would allow him to work as
a public school teacher. Oyama’s claim defies easy
categorization because his position at the University
combined the characteristics of both a student and a public
employee.
In light of the mixed characteristics of Oyama’s claim, we
address the applicability of both student speech and public
16 OYAMA V. UNIVERSITY OF HAWAII
employee speech doctrines. While both doctrines illuminate
certain principles that guide our analysis, we conclude that
neither, standing alone, provides an adequate framework for
evaluating Oyama’s claim. Drawing from both student
speech and public employee speech doctrines and from the
few decisions of other courts that have confronted free speech
claims in the certification context, we conclude that the
University did not violate Oyama’s First Amendment rights
because its decision related directly to defined and
established professional standards, was narrowly tailored to
serve the University’s core mission of evaluating Oyama’s
suitability for teaching, and reflected reasonable professional
judgment.
1. Student Speech Doctrine
Because Oyama was a student when the University denied
his student teaching application, we begin by examining the
Supreme Court’s student speech jurisprudence. As Oyama
correctly notes, it is “clear that students do not ‘shed their
constitutional rights to freedom of speech or expression at the
schoolhouse gate.’” Morse v. Frederick, 551 U.S. 393, 396
(2007) (quoting Tinker, 393 U.S. at 506). At the same time,
however, “[a] school need not tolerate student speech that is
inconsistent with its ‘basic educational mission,’ even though
the government could not censor similar speech outside the
school.” Hazelwood, 484 U.S. at 266 (citation omitted)
(quoting Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675,
685 (1986)).
In the seminal student speech case, Tinker, the Court held
that a high school may not suppress its students’ speech
unless school officials reasonably conclude that it will
“materially and substantially disrupt the work and discipline
OYAMA V. UNIVERSITY OF HAWAII 17
of the school.” 393 U.S. at 513. Tinker involved a group of
students who wore black armbands to school in protest of the
Vietnam War. 393 U.S. at 504. The Court held that neither
the high school’s “mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular
viewpoint,” nor its “urgent wish to avoid the controversy
which might result from the expression” was sufficient to
justify a ban on the students’ “silent, passive expression of
opinion, unaccompanied by any disorder or disturbance.” Id.at 508–10.
Since Tinker, however, the Court has identified several
circumstances in which a high school may restrict its
students’ speech. In Fraser, the Court held that a school
district “acted entirely within its permissible authority” in
suspending a high school student for “giving a lewd speech
at a school assembly.” 478 U.S. at 677, 685. In Hazelwood,
the Court held that high school officials may delete
potentially inappropriate material from a student newspaper
“so long as their actions are reasonably related to legitimate
pedagogical concerns.” 484 U.S. at 273. Most recently, in
Morse, the Court allowed the suspension of a student who
held up a banner reading “BONG HiTS 4 JESUS” as the
Olympic torch passed by, reasoning that “schools may take
steps to safeguard those entrusted to their care from speech
that can reasonably be regarded as encouraging illegal drug
use.” 551 U.S. at 397. All of these cases involved the speech
of high school students at school or school-sanctioned events.
Beyond that context, “the Court has noted only that ‘[t]here
is some uncertainty at the outer boundaries as to when courts
should apply school speech precedents.’” Wynar v. Douglas
Cty. Sch. Dist., 728 F.3d 1062, 1067 (9th Cir. 2013)
(alteration in original) (quoting Morse, 551 U.S. at 401).
18 OYAMA V. UNIVERSITY OF HAWAII
The district court evaluated Oyama’s claim within the
student speech framework and rejected it under Hazelwood,
finding that the University’s action was reasonably related to
legitimate pedagogical concerns. Student speech doctrine
does identify certain principles that inform our analysis here.
First, the Court’s student speech precedents recognize, to
some extent, an institutional rationale for a school’s decision
to regulate its students’ speech. In Morse, for example, the
Court held that a high school could confiscate the “BONG
HiTS 4 JESUS” banner and suspend the student who held it
because of the school’s congressional mandate to prevent
illegal drug use among its students. See 551 U.S. at 408. In
this case, the University similarly bears an institutional
responsibility: under state policy and national accreditation
standards, it must limit certification recommendations to
individuals suitable to enter the teaching profession. This
institutional responsibility, like the “governmental interest in
stopping student drug abuse” in Morse, may allow the
University to deny a student teaching application based on
speech demonstrating that the applicant lacks the professional
skills and disposition to enter a classroom, even as a student
teacher. Id.Second, student speech doctrine recognizes a school’s
interest in managing how it “lend[s] its name” or its
“imprimatur” to student expression. Hazelwood, 484 U.S. at271–72. Here, this “imprimatur” concept resonates not
because the views of a certification candidate may be
“erroneously attributed to the school,” id. at 271, but rather
because the act of certification forces the university to speak.
When the University recommends a student for certification,
it communicates to the world that, in its view, that student is
fit to practice the profession; as a result, the University places
its “imprimatur” on each student it approves to teach. The
OYAMA V. UNIVERSITY OF HAWAII 19
consequences of that “imprimatur” are substantial. With the
University’s recommendation, a candidate is eligible to apply
for a state teaching license and, so long as he or she satisfies
other minimal requirements, to enter the classroom. Because
the certification process necessarily implicates the
University’s “imprimatur,” the University is entitled to
deference in determining how to “lend its name” to
certification candidates. Id. at 272.
While aspects of student speech doctrine are relevant
here, the Supreme Court has yet to extend this doctrine to the
public university setting. See id. at 273 n.7 (expressly
reserving the question of “whether the same degree of
deference is appropriate with respect to school-sponsored
expressive activities at the college and university level”). In
the twenty-seven years since Hazelwood, we too have
declined to apply its deferential standard in the university
setting. In Brown, which involved a university’s decision not
to approve a graduate student’s thesis because it contained an
unprofessional “Disacknowledgements” section, Judge
Graber concluded that Hazelwood “appears to be the most
analogous” Supreme Court case and “provides a workable
standard for evaluating a university student’s claim stemming
from curricular speech.” 308 F.3d at 951–52. But Judge
Graber’s approach failed to command a majority of the
Brown panel. See id. at 955–56 (Ferguson, J., concurring)
(agreeing that Brown’s First Amendment claim fails, but not
for the reasons expressed by Judge Graber); id. at 960(Reinhardt, J., concurring in part and dissenting in part)
(“vehemently disagree[ing] with Judge Graber’s conclusion
that Hazelwood provides the appropriate First Amendment
standard for college and graduate student speech”). Nor has
Judge Graber’s reasoning been adopted by our precedents
since. See, e.g., Flint v. Dennison, 488 F.3d 816, 829 n.9 (9th
20 OYAMA V. UNIVERSITY OF HAWAII
Cir. 2007) (“[W]e need not consider whether the principles of
Hazelwood . . . apply with full force in a university setting—a
question neither we nor the Supreme Court have definitively
answered.” (citations omitted)). “Our sister circuits are split
on the question” of whether Hazelwood applies in the
university setting. Id. at 829 n.9.9
This case presents no occasion to extend student speech
doctrine to the university setting. Under that doctrine, the key
rationales for restricting students’ speech are to ensure that
students “are not exposed to material that may be
inappropriate for their level of maturity” and “learn whatever
lessons the activity is designed to teach.” Hazelwood,
484 U.S. at 271. Neither of these rationales is relevant here.
Concerns about student maturity cannot justify restrictions on
speech in this context because certification candidates are
adults; indeed, a prerequisite for enrollment in the Program is
graduation from a four-year institution of higher education.
See Widmar v. Vincent, 454 U.S. 263, 274 n.14 (1981)
(explaining that “[u]niversity students” are “young adults”
and “are less impressionable than younger students.”);
McCauley v. Univ. of the V.I., 618 F.3d 232, 246 (3d Cir.
9
Compare, e.g., Ward v. Polite, 667 F.3d 727, 733–34 (6th Cir. 2012)
(“Nothing in Hazelwood suggests a stop-go distinction between student
speech at the high school and university levels, and we decline to create
one.”), Keeton v. Anderson-Wiley, 664 F.3d 865, 875 (11th Cir. 2011)
(applying Hazelwood in university setting), Hosty v. Carter, 412 F.3d 731,
735 (7th Cir. 2005) (en banc) (“We hold . . . that Hazelwood’s framework
applies to subsidized student newspapers at colleges as well as elementary
and secondary schools.”), and Axson-Flynn v. Johnson, 356 F.3d 1277,
1285, 1289–93 (10th Cir. 2004) (concluding that a graduate student’s
speech “constitutes ‘school-sponsored speech’ and is thus governed by
Hazelwood”), with Student Gov’t Ass’n v. Bd. of Trs. of Univ. of Mass.,
868 F.2d 473, 480 n.6 (1st Cir. 1989) (“Hazelwood . . . is not applicable
to college newspapers.”).
OYAMA V. UNIVERSITY OF HAWAII 21
2010) (“Considerations of maturity are not nearly as
important for university students, most of whom are already
over the age of 18 and entrusted with a panoply of rights and
responsibilities as legal adults.”). Nor do “pedagogical
concerns” explain why the University denied Oyama’s
application on the basis of his speech. Hazelwood, 484 U.S.
at 273. The University’s purpose was not to teach Oyama
any lesson; rather, it was to fulfill the University’s own
mandate of limiting certification recommendations to
students who meet the standards for the teaching profession.
Hawaii entrusts the University with the task of verifying a
candidate’s ability to “function effectively” as an educator in
public schools. This institutional responsibility, and not the
“pedagogical concerns” of student speech doctrine, is the
reason that the University evaluated or “regulated” Oyama’s
speech. Therefore, student speech doctrine does not
adequately address the governmental purposes at stake in this
context.
Furthermore, student speech doctrine fails to account for
the vital importance of academic freedom at public colleges
and universities. As the Supreme Court has explained,
The essentiality of freedom in the community
of American universities is almost
self-evident. . . . To impose any strait jacket
upon the intellectual leaders in our colleges
and universities would imperil the future of
our Nation. . . . Teachers and students must
always remain free to inquire, to study and to
evaluate, to gain new maturity and
understanding; otherwise our civilization will
stagnate and die.
22 OYAMA V. UNIVERSITY OF HAWAII
Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957); see
also Rodriguez v. Maricopa Cty. Cmty. Coll. Dist., 605 F.3d
703, 708 (9th Cir. 2010). The importance of academic
freedom at a public university does not disappear when one
walks down the hall from a political philosophy seminar to a
professional certification program like the University of
Hawaii’s. Indeed, the progress of our professions, including
secondary education, may depend upon the “discord and
dissent” of students training to enter them: it is by
challenging the inherited wisdom of their respective fields
that the next generation of professionals may develop
solutions to the problems that vexed their predecessors.
Rodriguez, 605 F.3d at 708. Thus, our analysis of Oyama’s
claim would be constitutionally deficient if it did not reflect
the “special niche” universities occupy “in our constitutional
tradition.” Grutter v. Bollinger, 539 U.S. 306, 329 (2003).
The Court’s student speech cases provide no basis for doing
so.10
2. Public Employee Speech Doctrine
Oyama alternatively suggests that the University’s denial
of his student teaching application was analogous to an
employer’s act of retaliation, which is governed by Pickering
and its progeny. Pickering “requires a court evaluating
restraints on a public employee’s speech to balance ‘the
interests of the [employee], as a citizen, in commenting upon
matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services
10
In determining that Hazelwood does not provide the appropriate
framework for evaluating a First Amendment claim such as Oyama’s, we
need not and do not decide whether the Hazelwood standard can ever
apply in the context of student speech at the college and university level.
OYAMA V. UNIVERSITY OF HAWAII 23
it performs through its employees.’” City of San Diego v.
Roe, 543 U.S. 77, 82 (2004) (per curiam) (alteration in
original) (quoting Pickering, 391 U.S. at 568). “In unraveling
the case law since Pickering, we have further refined the
Court’s balancing test into a five-step inquiry.” Dahlia v.
Rodriguez, 735 F.3d 1060, 1067 (9th Cir. 2013) (en banc).
We ask:
(1) whether the plaintiff spoke on a matter of
public concern; (2) whether the plaintiff spoke
as a private citizen or public employee;
(3) whether the plaintiff’s protected speech
was a substantial or motivating factor in the
adverse employment action; (4) whether the
state had an adequate justification for treating
the employee differently from other members
of the general public; and (5) whether the state
would have taken the adverse employment
action even absent the protected speech.
Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009).11 The
11
In Demers v. Austin, 746 F.3d 402 (9th Cir. 2014), we declined to
extend the Supreme Court’s reasoning in Garcetti v. Ceballos, 547 U.S.
410 (2006), which held that the First Amendment does not protect
statements made by public employees “pursuant to their official duties,”
547 U.S. at 421, to public employee speech “related to scholarship or
teaching.” Demers, 746 F.3d at 406 (quoting Garcetti, 547 U.S. at 425).
Demers applied Pickering and Connick, see id. at 412–13, then remanded
to the district court to consider, “as appropriate,” whether “defendants had
a sufficient interest in controlling or sanctioning [plaintiff’s speech] to
deprive it of its First Amendment protection,” whether the plaintiff’s
speech was “a substantial or motivating factor in any adverse employment
action,” and “whether defendants would have taken such adverse
employment action absent the protected speech,” id. at 417. Here, because
we consider how public employee speech doctrine may, as a general
24 OYAMA V. UNIVERSITY OF HAWAII
Pickering framework “give[s] [public] employers wide
discretion and control over the management of their personnel
and internal affairs,” Nichols v. Dancer, 657 F.3d 929, 933
(9th Cir. 2011) (internal citation and quotation marks
omitted), and mandates “substantial deference . . . to the
government’s reasonable view of its legitimate interests,” Bd.
of Cty. Comm’rs v. Umbehr, 518 U.S. 668, 678 (1996).
More explicitly than student speech doctrine, public
employee speech doctrine clarifies the University’s rationale
for regulating Oyama’s speech: like a government employer,
the University must “protect its own legitimate interests in
performing its mission” of limiting teacher certification to
qualified professionals. Johnson v. Poway Unified Sch. Dist.,
658 F.3d 954, 961 (9th Cir. 2011) (quoting Roe, 543 U.S. at
82). “The Pickering balance requires full consideration of the
government’s interest in the effective and efficient fulfillment
of its responsibilities to the public.” Connick v. Myers, 461
U.S. 138, 150 (1983). The Court has explained that because
“[g]overnment agencies are charged by law with doing
particular tasks,” the government’s “interest in achieving its
goals as effectively and efficiently as possible is elevated
from a relatively subordinate interest when it acts as
sovereign to a significant one when it acts as employer.”
Waters v. Churchill, 511 U.S. 661, 674–75 (1994). In its
certification role, the University, like a government employer,
is “charged by law” with a “particular task”—here, that of
ensuring that licensed teachers have “the appropriate training,
preparation, and competencies for teaching.” Id. As the
public employee speech cases recognize, the University may
constitutionally evaluate or restrict the candidate’s speech to
matter, facilitate our evaluation of Oyama’s claim, we need not address
the interaction between Demers and Eng’s “five-step inquiry.”
OYAMA V. UNIVERSITY OF HAWAII 25
fulfill its responsibilities to the public and to achieve its
institutional objectives.
Further, cases addressing the claims of public teachers
provide a wealth of wisdom about the standards to which
teachers and school officials are held. For example, in Melzer
v. Board of Education, 336 F.3d 185 (2d Cir. 2003), a teacher
was an active member of NAMBLA, whose stated goal was
to change the laws and attitudes governing sexual activity
between men and boys. When his membership became
public, many parents and students were outraged. Id. at
189–92, 199. The Second Circuit affirmed the school’s
termination of the teacher, concluding that the disruption
likely to result from his continued employment would
“interrupt[] the children’s education, impair[] the school’s
reputation, and impair[] educationally desirable
interdependency and cooperation among parents, teachers,
and administrators.” Id. at 199. Similarly, in Craig v. Rich
Township High School District 227, 736 F.3d 1110 (7th Cir.
2013), a high school guidance counselor wrote a book entitled
“It’s Her Fault,” which, among other things, urged women to
engage in “a certain level of promiscuity before marriage”
and delved “into a comparative analysis of the female
genitalia of various races.” Id. at 1114. The Seventh Circuit
upheld the school’s termination of the counselor, concluding
that the counseling position required the employee to
“maintain a safe space for his students in order to ensure they
remain[ed] willing to come to him for advice,” and that
without that environment, the students would “not approach
him” and he could not “do his job.” Id. at 1119–20. The
similarities between the circumstances at issue in these cases
and those presented here make public employee speech
doctrine an attractive means of analysis for Oyama’s First
Amendment claim.
26 OYAMA V. UNIVERSITY OF HAWAII
However useful public employee speech doctrine may
appear, however, it cannot control our analysis of Oyama’s
First Amendment claim. The first and most basic problem is
that Oyama was not a government employee. In fact, Oyama
was two steps removed from government employment: he
was an applicant to a university program that could, in turn,
permit him to teach at a secondary school under the
supervision of a mentor teacher. Even then, only if Oyama
satisfactorily performed as a student teacher, and met other
requirements, would the University recommend him for
certification and actual employment by the state.
Characterizing Oyama as a public employee for First
Amendment purposes would thus require us to extend this
doctrine to those who do not yet work for the government but
may wish to do so—a move we have not yet made. See
Johnson, 658 F.3d at 962 (explaining that when a First
Amendment plaintiff is not a government employee,
“Pickering’s absence [is] not only unsurprising, but
necessary”).12 Given Oyama’s status as a student and the
attenuated nature of his relationship to government
employment, this appeal makes a poor candidate for taking
such a fateful step.
The second problem, as with student speech doctrine, is
that public employee speech doctrine provides no basis for
12
Other circuits have applied public employee speech doctrine in the job
applicant setting. See, e.g., Worrell v. Henry, 219 F.3d 1197, 1207 (10th
Cir. 2000) (applying Pickering to the withdrawal of an offer of
employment after the employer discovered the employee’s past speech
activity); Bonds v. Milwaukee Cty., 207 F.3d 969, 979 (7th Cir. 2000)
(applying Pickering analysis to a First Amendment retaliation claim of
someone seeking public employment); Hubbard v. EPA, 949 F.2d 453,
460 (D.C. Cir. 1992) (applying Pickering to a hiring decision). What we
have here, however, is not precisely a job applicant situation either.
OYAMA V. UNIVERSITY OF HAWAII 27
considering the role of academic freedom at public
universities. Public employee speech doctrine permits the
government to regulate speech that might limit the
“efficiency” of its operations, Pickering, 391 U.S. at 568; it
does not require the government to promote, or even
consider, its employees’ freedom “to inquire, to study and to
evaluate, to gain new maturity and understanding,” Sweezy,
354 U.S. at 250. As a student at the University of Hawaii,
Oyama enjoyed greater freedom to test his ideas, critique
professional conventions, and develop into a more mature
professional than he would as a government employee. To
hold Oyama to the same standard as we hold public
employees would deprive him of rights the First Amendment
guarantees him as a public university student.13
3. The Certification Cases
A third framework for analysis more aptly suits Oyama’s
claim: a set of decisions of other courts that have considered
free speech claims in the “certification” context. See
generally Emily Gold Waldman, University Imprimaturs on
Student Speech: The Certification Cases, 11 First Amend. L.
Rev. 382 (2013). The doctrinal bases for these decisions
differ: some invoke student speech doctrine, some rest on
public employee speech doctrine, and at least one presents a
new test altogether. Though these cases are analyzed under
different First Amendment doctrines, their substance echoes
13
In part due to considerations of academic freedom, we have declined
to extend Garcetti to the context of public school teachers. See supra note
11. Even absent Garcetti’s additional level of deference to public
employers, however, public employee speech doctrine’s “substantial
deference” to the “government’s reasonable view of its legitimate
interests” fails to provide the protection to which a student at a public
university is entitled. Umbehr, 518 U.S. at 678.
28 OYAMA V. UNIVERSITY OF HAWAII
a common theme—the upshot is some deference to the
certifying institution, but with significant limitations.
Courts generally defer to certification decisions based on
defined professional standards. In Keeton v. Anderson-Wiley,
664 F.3d 865 (11th Cir. 2011), for example, the Eleventh
Circuit applied Hazelwood to uphold a university’s decision
to sanction a student in a graduate-level school counseling
program for stating that she “intended to attempt to convert
students from being homosexual to heterosexual.” Id. at 868.
The university concluded that these statements implied a
course of conduct that would “violate several provisions of
the American Counseling Association’s (ACA) Code of
Ethics,” which the university “must adopt and follow . . . in
order to offer an accredited program.” Id. at 869, 876.
Similarly, in Hennessy v. City of Melrose, 194 F.3d 237 (1st
Cir. 1999), the First Circuit applied Pickering to uphold the
termination of a student teacher for repeatedly interrupting
school events with religious “proselytizing,” such as showing
a picture of an aborted fetus to another teacher and storming
out of a presentation on art that he considered “obscene.” Id.at 242–43. The First Circuit noted that the candidate’s
religious outbursts were incompatible with general
professional standards for preserving collegiality and respect
in the school and, more specifically, with four “common
teaching competencies” required for state certification. Id. at
243, 247.
By contrast, courts are more reluctant to defer to
certification decisions based on officials’ personal
disagreement with a student’s views. In Ward v. Polite,
667 F.3d 727 (6th Cir. 2012), for example, the Sixth Circuit,
applying Hazelwood, ruled in favor of a student expelled
from a counseling degree program for asking her supervisor
OYAMA V. UNIVERSITY OF HAWAII 29
to refer a gay client to another student counselor. Unlike in
Keeton or Hennessy, the university’s decision appeared to rest
on officials’ personal views, not on professional standards,
which instead supported the “values-based referral[]” the
student requested. Id. at 735. In Axson-Flynn v. Johnson,
356 F.3d 1277 (10th Cir. 2004), the Tenth Circuit adopted a
similar methodology to evaluate the First Amendment claim
of a Mormon student who withdrew from the University of
Utah’s actor training program after faculty members faulted
her for refusing to use obscene language in theatrical
performances. The university cited professional acting
standards to justify its decision, but record evidence showed
that faculty members had expressed their personal
disapproval of the student’s interest in being a “good
Mormon girl[].” Id. at 1292–93. The Tenth Circuit held that
the university was not entitled to summary judgment because
there was a genuine issue of material fact “as to whether [the
university’s] justification . . . was truly pedagogical or
whether it was a pretext for religious discrimination.” Id. at
1293.14 Thus, while these decisions lack a common doctrinal
foundation, they appear to provide a rule we find instructive
here: universities may consider students’ speech in making
certification decisions, so long as their decisions are based on
defined professional standards, and not on officials’ personal
disagreement with students’ views.
14
See also Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1292–94 (11th Cir.
2007) (applying public employee speech doctrine to the claim of a student
enrolled in a graduate-level social work program and terminated from a
student practicum at a psychiatric institute for failing to demonstrate the
“professional conduct” required of social workers); Tatro v. Univ. of
Minn., 816 N.W.2d 509, 520–21 (Minn. 2012) (articulating a new test to
uphold a university’s decision to sanction a mortuary sciences student for
violating a student code of professional conduct and professional
standards for funeral service education).
30 OYAMA V. UNIVERSITY OF HAWAII
4. Application
Drawing from the Supreme Court’s student speech and
public employee speech precedents and from the decisions of
other courts in the certification context, we hold that the
University of Hawaii’s decision to deny Oyama’s student
teaching application did not offend the First Amendment
because it related directly to defined and established
professional standards, was narrowly tailored to serve the
University’s foundational mission of evaluating Oyama’s
suitability for teaching, and reflected reasonable professional
judgment.
(i) Directly Related to Defined and Established
Professional Standards
The University’s decision was directly related to defined
and established professional standards. Two sets of
professional standards provided the foundation for the
University’s decision: one governing sexual relationships
with children and another governing the education of disabled
students. Oyama stated that “it would be fine” for “a 12-year-
old girl” to have a “consensual” relationship with her teacher,
that “the age of consent should be either 0, or whatever age
a child is when puberty begins,” and that “real life child
predation should be legal.” As the University explained to
Oyama, however, Hawaii Department of Education Rules
prohibit sexual contact between teachers and students or
minors. See Haw. Admin. Rules, § 8-54-9. Furthermore, the
HTSB requires all teachers to “take all reasonable
precautions” to protect student safety. See HTSB Code of
Ethics, Principle I. To protect a student’s “safety,” a
secondary school teacher must protect underage students
from sexual contact with adults, which may qualify as
OYAMA V. UNIVERSITY OF HAWAII 31
first-degree sexual assault under Hawaii law. See Haw. Rev.
Stat. § 707-730.
These standards are established not only in Hawaii but
also at a national level. According to one study, the
sexual-assault laws of over half the states address sexual
relationships between educators and students. See Caroline
Hendrie, States Target Sexual Abuse by Educators, Educ.
Wk., Apr. 30, 2003. Many states also require school teachers
to report suspected sexual abuse of their students. See Jason
P. Nance & Philip T.K. Daniel, Protecting Students from
Abuse: Public School District Liability for Student Sexual
Abuse Under State Child Abuse Reporting Laws, 36 J.L. &
Educ. 33, 35 (2007). The Department of Education has
specifically identified “state educator certification
regulations” as a means to combat the problem of sexual
abuse of children. See U.S. Dep’t of Educ., Educator Sexual
Misconduct: A Synthesis of Existing Literature 50 (2004).
The University’s decision was also directly related to
defined and established professional standards for teaching
students with disabilities. Oyama characterized special
education students as “fakers,” asserted that it is not
reasonable to expect secondary school teachers to teach “the
students with learning disabilities,” and voiced his opposition
to the goal of “inclusion for the disabled student.” As the
university explained, however, its national accreditation body
mandates that student teachers demonstrate “professional
dispositions necessary to help all students learn,” including
students with disabilities. See also Professional Development
Schools, supra, at 25 (explaining that accredited programs
must “reflect issues of equity and access to knowledge by
diverse learners”). Moreover, the HTSB requires all student
teachers to “[p]rovide services to students in a
32 OYAMA V. UNIVERSITY OF HAWAII
nondiscriminatory manner” and “[a]dapt[] instruction to
students’ differences in development, learning styles,
strengths and needs.” Finally, the public schools of every
state must comply with the Individuals with Disabilities
Education Act (IDEA), which entitles all disabled children to
a free public education tailored to their needs. See K.D. ex
rel. C.L. v. Dep’t of Educ., 665 F.3d 1110, 1114 (9th Cir.
2011) (citing Pub. L. 101-476, 84 Stat. 175 (1990), codified
at 20 U.S.C. § 1400 et seq.). The IDEA ensures that
“disabled children will be integrated into society and enhance
their personal well-being and their important societal
contributions.” JG v. Douglas Cty. Sch. Dist., 552 F.3d 786,
793 (9th Cir. 2008). The University correctly identified the
clear tension between these standards and Oyama’s
statements.
The First Amendment does not prevent the University
from denying Oyama’s student teaching application after
determining that his statements reflected a failure to absorb
these defined and established professional standards. Both
student speech and public employee speech doctrine
recognize that the scope of the government’s authority to
regulate speech within its institutions depends upon the
objectives those institutions are designed to achieve. See,
e.g., Fraser, 478 U.S. at 685 (explaining that a high school
may regulate speech that “would undermine the school’s
basic educational mission”); Roe, 543 U.S. at 82 (explaining
that a public employer may regulate speech to “protect its
own legitimate interests in performing its mission”); Connick,
461 U.S. at 150–51 (“The Pickering balance requires full
consideration of the government’s interest in the effective and
OYAMA V. UNIVERSITY OF HAWAII 33
efficient fulfillment of its responsibilities to the public.”).15
Here, the people of Hawaii enacted a law providing that “[n]o
person shall serve as a half-time or full-time teacher in a
public school without first having obtained a license.” Haw.
Rev. Stat. § 302A-805. Hawaii thus established a
certification program at the University of Hawaii to “ensure
that education professionals possess the appropriate training,
preparation, and competencies for teaching,” to limit teacher
licenses to “knowledgeable, effective, and caring
professionals,” and to confirm that student teachers “[a]ct,
speak, and dress” like teachers. To fulfill its responsibilities
to the public, the University may evaluate a candidate’s
suitability for teaching based, in part, on his or her speech.
Specifically, the University’s evaluation of whether Oyama’s
statements are consistent with defined and established
professional standards is entirely compatible with the
University’s institutional purpose of evaluating a candidate’s
suitability for the teaching profession.
By focusing on the relationship between the University’s
decision and the standards of the profession in which Oyama
sought certification, we join the other courts that have
considered free speech claims in the certification context,
even as we part from most of them in declining to squeeze
this case into an existing doctrinal framework that does not
quite fit. See, e.g., Keeton, 664 F.3d at 869 (upholding a
university’s decision to sanction a graduate student in a
school counseling program where the student’s statements
15
See generally Robert C. Post, Constitutional Domains: Democracy,
Community, Management 237 (1995) (explaining that, under both student
speech and public employee speech doctrine, “[t]he constitutional question
. . . is whether the authority to regulate speech is necessary for the
achievement of legitimate institutional objectives”).
34 OYAMA V. UNIVERSITY OF HAWAII
suggested that she would “violate several provisions of the
American Counseling Association’s (ACA) Code of Ethics,
which [the university] was required to adopt and teach” to
offer an accredited counseling program); Ward, 667 F.3d at
735 (ruling in favor of a student expelled from a counseling
degree program where professional standards of ethics did
not, as the university argued, prohibit the course of conduct
the student proposed to her supervisors); Tatro, 816 N.W.2d
at 522 (upholding a university’s decision to sanction a
mortuary sciences program student whose Facebook posts
conflicted with “an established professional conduct standard
for mortuary science professionals”). These courts have
emphasized, as we do, that certification programs are
designed to ensure that their students meet the professional
standards of their chosen fields. See, e.g., Keeton, 664 F.3d
at 876 (“[T]he entire mission of [the university’s] counseling
program is to produce ethical and effective counselors in
accordance with the professional requirements of the ACA.”);
Tatro, 816 N.W.2d at 511–12 (“[T]he primary purpose of the
program—its ‘mission’—is to prepare students to be licensed
funeral directors and morticians.”). Here, the University’s
certification program is “designed for students who possess
a baccalaureate degree and wish to obtain eligibility for a
license to teach.” Thus, while we take a different view of the
applicability of First Amendment doctrine to the certification
context, the certification cases further support our conclusion
that the University could deny Oyama’s student teaching
application where his statements indicated that he had not
absorbed, and likely would not comply with, defined and
established standards for the teaching profession.
We emphasize that the University did not “establish” or
“define” these professional standards by fiat. Its decision was
not, in other words, based on school policies untethered to
OYAMA V. UNIVERSITY OF HAWAII 35
any external standards, regulations, or statutes governing the
profession. Instead, the University relied upon standards
established by state and federal law, the Hawaii Department
of Education, the HTSB, and the University’s national
accreditation agency, the NCATE. From Dr. Ratliffe’s initial
conversation with Oyama to Dean Sorensen’s letter affirming
the denial of Oyama’s application, the University framed its
concerns about Oyama’s statements by reference to
professional standards set beyond the walls of its own
institution. The University thus compared Oyama’s speech
not to its own idiosyncratic view of what makes a good
teacher, but rather to external guideposts that establish the
skills and disposition a secondary school teacher must
possess.
That Oyama did not in fact consummate the acts
proscribed by these professional standards does not mean that
the University’s decision to deny his application was not
directly related to them. State policy required the University
to “[v]erify” Oyama’s “ability to function effectively in
Department classrooms” before approving his student
teaching application. Therefore, the University’s decision
was, by necessity, prospective in nature. Oyama stood in the
doorway of the teaching profession; he was not at liberty to
step inside and break the house rules. But that does not mean
that the University was obligated to invite him in. Rather, the
University could look to what Oyama said as an indication of
what he would do once certified. Cf. Connick, 461 U.S. at
152 (explaining that a public employer need not wait “to
allow events to unfold to the extent that the disruption to the
office is manifest before taking action”). Oyama’s statements
concerning “child predation” and “inclusion” of disabled
students suggest that he had not internalized basic concepts
embodied in the relevant external standards—the nature of
36 OYAMA V. UNIVERSITY OF HAWAII
sexual predation on children, for example, or the importance
of including and supporting disabled students. The
University need not—and, consistent with its mandate under
state policy, could not—have approved Oyama’s application
and sat idly by while his failure to accept basic professional
standards led to results these standards were designed to
prevent.
For example, with regard to the sexual abuse of children,
Oyama’s belief that young children can meaningfully
“consent” to sexual activity with adults, and failure to
appreciate the lifelong impact on victims of child sexual
abuse, could well impede him from recognizing signs of such
abuse in his students or evidence of such abuse by school
personnel. His promise to report illegal abuse is therefore
beside the point; he can only report what he perceives, and his
attitudes could well stand in the way of his perception.
Similarly, with regard to teaching disabled children, the
University was entitled to regard Oyama’s insistence that
most disabilities are feigned and that requiring high school
teachers to educate disabled students is unreasonable as
indicators that he would not make the effort to identify
students with disabilities or adjust his lessons for individual
students whose disabilities require special accommodations.
Given these legitimate concerns, the University could “tak[e]
action” and deny Oyama’s application before permitting him
to enter the classroom as a student teacher. Id.(ii) Narrowly Tailored
We next ask whether the University’s decision was
narrowly tailored to serve the University’s purpose of
evaluating Oyama’s suitability for the teaching profession.
In a variety of contexts, the First Amendment requires that
OYAMA V. UNIVERSITY OF HAWAII 37
restrictions on protected speech be narrowly drawn. See, e.g.,
Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989) (in
the context of the government’s “time, place, or manner”
restrictions, the restriction “must be narrowly tailored” to
serve the government’s legitimate interests); Cent. Hudson
Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S.
557, 565 (1980) (in the commercial speech context, “[t]he
regulatory technique may extend only so far as the interest it
serves”); Butler v. Michigan, 352 U.S. 380, 383 (1957)
(explaining that an overbroad restriction on speech amounts
to “burn[ing] the house to roast the pig”). “[B]y demanding
a close fit between ends and means, the tailoring requirement
prevents the government from too readily ‘sacrific[ing]
speech for efficiency.’” McCullen v. Coakley, 134 S. Ct.
2518, 2534 (2014) (quoting Riley v. Nat’l Fed. of Blind of
N.C., Inc., 487 U.S. 781, 795 (1988)). We find such a
requirement appropriate in this university setting, which
provides the backdrop not only for some speech that the
government may legitimately regulate, but also for much of
the “discord and dissent” the First Amendment seeks to
promote. Rodriguez, 605 F.3d at 708. Adopting a narrow
tailoring requirement in this context, we ensure that the
University does not transform its limited discretion to
evaluate a certification candidate’s professional fitness into
a open-ended license to inhibit the free flow of ideas at public
universities.
The University’s decision was narrowly tailored to serve
its goal of “employ[ing] and prepar[ing] educators who are
knowledgeable, effective, and caring professionals.”
Handbook, supra, at 8. The University’s decision primarily
rested on Oyama’s statements endorsing sexual relationships
between children and adults, online and in “real life,” and his
statements expressing apathy towards disabled students and
38 OYAMA V. UNIVERSITY OF HAWAII
an unwillingness to accommodate their classroom needs.
These statements related directly to his suitability for
teaching. By contrast, the record does not suggest that the
University based its decision on speech unrelated to teaching.
The University did not, for example, rely on upon several of
Oyama’s statements that may seem bizarre but have no
relationship to the teaching profession—such as his
statements that he “came from outer space” or “thinks about
suicide every day.” Nor did the University, based on the
record before us, rely on statements addressing “social,
political, esthetic, moral, and other ideas and experiences”
that are unrelated to teaching but essential to the marketplace
of ideas. Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2674
(2011) (quoting Red Lion Broad. Co. v. FCC, 395 U.S. 367,
390 (1969)). Thus, rather than relying on any statement, no
matter the subject, as a basis for its certification decision, the
University limited its focus to Oyama’s statements that
directly addressed the roles and responsibilities of aspiring
secondary school teachers.
Furthermore, the University based its decision only upon
statements Oyama made in the context of the certification
program—in the classroom, in written assignments, and
directly to the instructors responsible for evaluating his
suitability for teaching. For example, Oyama asserted that
“real life child predation should be legal” in a written
assignment in Dr. Ratliffe’s class on “Educational
Psychology: Adolescence and Education.” When Dr. Ratliffe
spoke to Oyama after class, Oyama explained that a
“consensual relationship” between a 12-year-old girl and
another teacher would be “fine.” Similarly, Oyama stated
that it is not reasonable to expect a secondary school teacher
to teach “the students with learning disabilities” in a written
communication to Mr. Siegel, Oyama’s instructor in
OYAMA V. UNIVERSITY OF HAWAII 39
“Educating Exceptional Students in Regular Classrooms –
Secondary.” There is no evidence that the University relied
upon any statements Oyama may have made outside this
context or communicated to a broader audience. Nor is there
any evidence that the University attempted to restrict or take
any adverse action in response to Oyama’s expressive
activities in other campus-related contexts, such as meetings
with other students or protests to university officials. Beyond
the limited context in which Oyama made the statements that
supported the University’s decision, Oyama was free to
express his opinions on any subject he wished. Accordingly,
the University’s decision did not impose any restriction
broader than necessary to achieve its goal of evaluating
Oyama’s suitability for teaching.
(iii) Reasonable Professional Judgment
We conclude that the First Amendment also requires us
to ask whether the University’s decision reflects reasonable
professional judgment about Oyama’s suitability for the
teaching profession. A reasonableness inquiry is, of course,
a common feature of First Amendment doctrine. See
Hazelwood, 484 U.S. at 274–76 (student speech); Connick,
461 U.S. at 154 (public employee speech); see also Int’l Soc.
for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 683
(1992) (forum-based analysis). Here, this inquiry is critical
because not all inconsistencies between a candidate’s
statements and defined and established professional standards
provide a reasonable basis to conclude that the candidate is
not suitable to enter the profession. For example, the
statement, “I hate cleaning my office” may be in tension with
a professional standard to “keep the office tidy” but may not
be a reasonable basis to conclude that the speaker is not fit to
40 OYAMA V. UNIVERSITY OF HAWAII
enter the profession.16 Absent this inquiry, the University
could use professional standards as a pretext for decisions
based on officials’ personal disagreement with the
candidate’s views. As the Tenth Circuit explained in
Axson-Flynn, “we would be abdicating our judicial duty if we
failed to investigate whether the [professional standard] was
pretextual.” 356 F.3d at 1292–93 (emphasis omitted). In this
context, we may defer to the University’s decision because of
its prerogative to evaluate professional competencies and
dispositions, not because of a blind faith in the University’s
sense of what views are right or wrong. Consistent with this
rationale for deference, we may uphold the University’s
decision only if it reflects reasonable professional judgment
about Oyama’s suitability for teaching.
The University’s decision to deny Oyama’s application
satisfies this requirement. First, the University had every
reason to conclude that Oyama’s statements concerning
sexual relationships between teachers and students were
“serious matters of concern.” The Supreme Court has
recognized that sexual abuse “unfortunately is an all too
common aspect of the educational experience.” Gebser v.
Lago Vista Indep. Sch. Dist., 524 U.S. 274, 292 (1988); see
also, e.g., Richard Winton, Ex-Marlborough School Teacher
Admits Sexually Abusing Students, L.A. Times, Oct. 21, 2015;
Martha Irvine & Robert Tanner, Sexual Misconduct Plagues
U.S. Schools, Wash. Post, Oct. 21, 2007. According to a
Department of Education study, “more than 4.5 million
students are subject to sexual misconduct by an employee of
16
See generally Deborah L. Rhode, Moral Character as a Professional
Credential, 94 Yale L.J. 491 (1985) (discussing the variety and breadth of
professional certification requirements, including the requirement of
“good moral character”).
OYAMA V. UNIVERSITY OF HAWAII 41
a school sometime between kindergarten and 12th grade.”
Educator Sexual Misconduct, supra, at 18. The federal
government has attributed this problem, in part, to school
officials’ recommendations of teacher candidates despite
warning signs of the candidate’s potential to abuse students.
See U.S. Gov’t Accountability Off., GAO-11-200, K-12
Education: Selected Cases of Public and Private Schools that
Hired or Retained Individuals With Histories of Sexual
Misconduct 3–5 (2010). In one example highlighted by the
Government Accountability Office, school officials
recommended a teacher for service despite complaints that he
had accessed pornography on school computers; the teacher
was subsequently convicted of sexually assaulting two
students. Id. at 15–18. A perfectly reasonable way to prevent
similar tragedies at Hawaii schools is to decline certification
to candidates who vocally support sex between teachers and
their twelve-year-old students. We put aside the risk that
Oyama would himself abuse a student; his statements do not
sufficiently support such a prediction, and we see no evidence
that the University denied his application on the basis of this
risk. Rather, the University could reasonably conclude that
Oyama would fail to perceive, or to exercise the vigilance
needed to identify and report, potential or actual sexual abuse
of students by other adults. The University recognized these
risks and appropriately made a decision, as Dean Sorensen
put it, “not to place young children in harm[’]s way.”
The University’s concern with Oyama’s statements
regarding disabled students was likewise well-founded.
Congress enacted the Individuals with Disabilities Education
Act in response to the “apparently widespread practice of
relegating handicapped children to private institutions or
warehousing them in special education classes.” N.D. v.
Haw. Dep’t of Educ., 600 F.3d 1104, 1115 (9th Cir. 2010)
42 OYAMA V. UNIVERSITY OF HAWAII
(citation and internal quotation marks omitted). Federal and
state law mandate a commitment to providing disabled
students the services they need and promoting a more
integrated learning environment for all students. The
University could reasonably conclude that a candidate who
expresses his view that special education students are
“fakers” to his professors would lack the professional
disposition necessary to identify disabled students and teach
all students, including those with disabilities. The University
could also reasonably conclude that a candidate who
considers it unreasonable to teach both disabled and
non-disabled students would not put in the effort to “provide
services to students in a nondiscriminatory manner” as a
teacher.
Furthermore, the record demonstrates that Oyama’s
professors expressed concern not out of personal
disagreement with Oyama’s views but rather because of their
“responsibility as a profession.” Dr. Ratliffe, for example,
told Dr. Moniz that she did not “mind that [Oyama] has
opinions that are different from other people’s” and “actually
[found] [Oyama’s] enthusiasm about his opinions refreshing,”
but nevertheless was “concerned that [Oyama] may not be
aware of and in agreement with the safety issues about the
adolescents who will be in his care.” Mr. Siegel clarified to
Oyama that his concerns were “not based on [Siegel’s]
opinion” but rather “on [his] 43 years as an educator,” and his
understanding of the criteria schools consider in hiring
teachers. Even instructors who had initially defended Oyama
as “likable” ultimately concluded that Oyama “was unsuitable
for teaching.” The record thus demonstrates that the
University’s certification decision reflects professional
judgment, not personal disagreement with Oyama’s views.
OYAMA V. UNIVERSITY OF HAWAII 43
B. Procedural Due Process Claim
Oyama also argues that the University’s denial of his
teaching application without a hearing violated his Due
Process rights under the Fourteenth Amendment. The district
court properly rejected this argument.
The premise of Oyama’s Due Process claim is that the
University’s denial of his student teaching application
constituted “constructiv[e] dismiss[al]” from the Program and
thus deprived him of a constitutionally protected interest in
remaining in the Program. This premise is questionable: the
Program’s handbook advises prospective students that
admission to the Program does not guarantee admission to
student teaching. Participation in the Program without
permission to student teach is consistent with the Program’s
basic structure; indeed, Dean Sorensen estimated that “around
20 students annually” are not approved for student teaching.
The denial of student teaching is thus more akin to the denial
of access to honors-level courses on the basis of a student’s
poor grades than to expulsion. See Hennessy, 194 F.3d at 250(explaining that a certification candidate’s due process claim
was “especially tenuous” because the university “did not
expel the appellant, but merely precluded him from
continuing in a particular program”).
But even if we accept Oyama’s argument that the
University’s decision deprived him of a constitutionally
protected interest, the University provided him with adequate
process. “When considering cases that originate in an
educational institution, the law distinguishes between
academic dismissals and disciplinary dismissals.” Hlavacek
v. Boyle, 665 F.3d 823, 826 (7th Cir. 2011). Academic
dismissals do not require a hearing and “meet[] the
44 OYAMA V. UNIVERSITY OF HAWAII
requirements of procedural due process so long as the
dismissal decision is ‘careful and deliberate.’” Brown,
308 F.3d at 954–55 (quoting Bd. of Curators of Univ. of Mo.
v. Horowitz, 435 U.S. 78, 85 (1978)). Disciplinary
dismissals, by contrast, may require more formal procedures.
See Horowitz, 435 U.S. at 85–86 (citing Goss v. Lopez,
419 U.S. 565, 581, 584 (1975)).
The University’s decision to deny Oyama’s student
teaching application was an academic decision. Throughout
its communications with Oyama concerning his application,
the University emphasized that its decision was based on the
student teaching requirements described in the Program’s
handbook and established by professional standards. That the
University’s decision was based on Oyama’s professional
disposition, and not his intellectual aptitude, does not strip it
of its academic character. In the context of this certification
program, a central criterion for academic success was a
demonstration of the ability to satisfy professional standards
for teacher certification. See Brown, 308 F.3d at 954(explaining that a university’s decision not to publish a
master’s thesis because it contained an unprofessional
“Disacknowledgements” section was “properly characterized
as an ‘academic’ decision”).17
Horowitz supplies “the standard for procedural due
process in the context of academic decisions.” Id. In
Horowitz, a medical student argued that her school violated
her procedural due process right by dismissing her from the
program without a hearing. See 435 U.S. at 80–82, 85–86.
17
Although there was no majority opinion in Brown, Judge Reinhardt
concurred in Judge Graber’s procedural due process analysis. See Brown,
308 F.3d at 956 (Reinhardt, J., concurring in part and dissenting in part).
OYAMA V. UNIVERSITY OF HAWAII 45
The Court explained that the student’s dismissal “rested on
the academic judgment of school officials” that the student
lacked “the necessary clinical ability to perform adequately”
as a physician. Id. at 89–90. The Court held that the student
was not entitled to a hearing and that the university satisfied
the requirements of due process because the school “fully
informed [the student] of the faculty’s dissatisfaction with her
clinical progress and the danger that this posed to timely
graduation and continued enrollment” and because “the
ultimate decision to dismiss [the student] was careful and
deliberate.” Id. at 85.
Here, the University’s denial of Oyama’s student teaching
application satisfied the due process requirements set forth in
Horowitz. As in Horowitz, the University “fully informed
[Oyama] of the faculty’s dissatisfaction” with his
performance: multiple professors told Oyama about their
concerns regarding his suitability for the teaching profession.
The University’s decision was also “careful and deliberate.”
The University initially explained the reasons for its decision
in Dr. Moniz’s detailed letter to Oyama. The University then
provided Oyama a robust process for appealing its initial
decision: Dean Sorensen formed a multidisciplinary
committee, which interviewed Oyama and three professors of
his choice and prepared a detailed report reviewing the Dr.
Moniz’s decision. Dean Sorensen then provided Oyama
another letter explaining the committee’s findings and
affirming the University’s decision to deny his application.
This process was sufficiently careful and deliberate to meet
the requirements of the Due Process Clause.
46 OYAMA V. UNIVERSITY OF HAWAII
IV.
In the context of a public university’s professional
certification program, the university may evaluate the
student’s speech, made in the course of the program, in
determining the student’s eligibility for certification without
offending the First Amendment under certain circumstances.
Because the University of Hawaii’s decision to deny Oyama’s
student teaching application directly related to defined and
established professional standards, was narrowly tailored to
serve the University’s core mission of evaluating Oyama’s
suitability for teaching, and reflected reasonable professional
judgment, the University did not violate Oyama’s First
Amendment rights. In addition, because the University
granted Oyama adequate procedural protections in denying
his student teaching application, it did not violate Oyama’s
due process rights. Therefore, the district court properly
granted summary judgment in favor of the University.
AFFIRMED.