Another Brief from the UCLA Amicus Brief Clinic Filed

The second amicus brief I worked on with the UCLA amicus brief clinic has just been filed in the Ninth Circuit.  The case is Oyama v. University of Hawaii and the brief was filed on behalf of the Foundation for Individual Rights in Education (FIRE) and the Student Press Law Center (SPLC).  Eugene Volokh posts about the filing here, and a pdf version of the brief is available here.  Volokh also directs readers to FIRE's post on the brief here, and the SPLC's post here.  Here is the summary of argument from the brief:

The University of Hawaii dismissed Oyama from its teaching credential program, in part because “the views [he had] 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” and other entities. Oyama v. Univ. of Hawaii, 2013 WL 1767710, *13 (D. Haw. April 23, 2013). Oyama was never accused or even suspected of any sort of sexual misconduct or disability discrimination. He never stated he would engage in any such misconduct or discrimination. Yet he was dismissed from a public university program partly because of his “views,” and his “unwillingness to change his views.” Id. 

If the district court’s decision is affirmed, universities will be similarly empowered to dismiss students from a wide range of programs for holding views that the administration dislikes or otherwise sees as “not in alignment with standards set by” the government or the administrators. All that administrators would have to do is frame their speech restrictions under the guise of upholding “standards” for the student’s prospective profession or course of study. 

University speech codes, though struck down by many court decisions in recent decades, could thus be revived, and, indeed, made much broader. After all, the rationale below is not limited to, for instance, speech that is “so severe, pervasive, and objectively offensive” that it “rises to the level of actionable ‘harassment’” (“harassment” being a common test in recent campus speech codes). [Footnote: Davis ex rel. LaShonda D. v. Monroe County Bd. of Educ., 526 U.S. 629, 651-52 (1999).] Rather, as this case shows, the rationale could easily apply to normal, reasoned, substantive discussion of contested policy issues. Students who value their prospective future degrees will know to simply shut up when it comes to views that the administration, faculty, or professional licensing bodies consider unsuitable. 

This would be the very sort of viewpoint discrimination that the Supreme Court has roundly condemned, and it would cast the “pall of orthodoxy” that the Court has said the First Amendment precludes. The decision below should therefore be reversed, and Oyama’s termination should be reevaluated without regard to his “views,” his views’ lack of “alignment” with orthodox views, or his unwillingness to change his views.