MEMORANDUM OPINION AND ORDER

M. CHRISTINA ARMIJO, Chief District Judge.

This case is before the Court upon Defendants' Motion for Summary Judgment [Doc. 30] The Court has considered the written submissions of the parties, the record in this case and the applicable law, and is otherwise fully advised. Defendants' motion is granted.

Summary Judgment Standards

Fed. R. Civ. P. 56(a) provides that "[a] party may move for summary judgment, identifying each claim or defense 0336or the part of each claim or defense 0336on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." As our Court of Appeals has succinctly stated:

Adamson v. Multi Cmty. Diversified Serv., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008). The factual record and reasonable inferences therefrom are viewed in the light most favorable to the party opposing summary judgment. Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998). "It is not [the court's] province at the summary judgment stage to weigh the evidence or to make credibility determinations." Sanders v. Southwestern Bell Tel., L.P., 544 F.3d 1101, 1105-06 (10th Cir. 2008).

Qualified Immunity

Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009) (citations and internal quotation marks omitted).

Background

The record, viewed in the light most favorable to Plaintiff, would allow a reasonable jury to find the following facts.

During the spring semester of 2012, Plaintiff enrolled in "Images of (Wo)men: From Icons to Iconoclasts," an elective class offered by UNM's Cinematic Arts Department and taught by Professor Caroline Hinkley. The course was a restricted class, offered to upper level students. [Doc. 49-1 at 1] The syllabus1 described the class thus:

[Doc. 49-1 at 1] The syllabus alerted students to the possibility of "incendiary class discussions" and that the course "might not make you comfortable." The syllabus made clear that notwithstanding the potentially controversial nature of the subject matter, students were expected to express themselves with "respect and care for everybody's marvelously complex subjectivities" maintaining "an environment pleasant for all." The pedagogical goals of the class were to teach students "to write a critical and analytic paper," "to promote an atmosphere of inclusion and equity within the class," and "to teach students how to think critically, to discern a critical argument from opinions and polemics." [Doc. 49-2 at 3-4]

Plaintiff submitted papers on Christopher Strong, and The Women, receiving grades of "A-" and "A." [Doc. 49-5 at 2] On February 21, 2012, Plaintiff submitted a four page paper [Doc. 30-6] on Desert Hearts, a 1985 film depicting a lesbian romance. [Doc. 30-6] Plaintiff's paper was harshly critical of the lesbian characters portrayed in the film and of lesbianism in general. Plaintiff referred to one character as "still sexually vibrant, in spite of her perverse attraction to the same sex"; to lesbianism as a "very death-like state as far as its inability to reproduce naturally"; and to the film generally 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." After the Desert Hearts paper, Plaintiff submitted a paper discussing two Marilyn Monroe films, Diamonds Are a Girl's Best Friend and Gentlemen Prefer Blondes. Professor Hinkley gave Plaintiff an "A" for this paper.

Professor Hinkley read Plaintiff's entire Desert Hearts paper [Doc. 30-4 at 2], writing comments on the first two pages. Professor Hinkley's comments were thoughtful and appropriately professorial, and appear to have been designed to engage Plaintiff in an academic dialogue. For example, in response to Plaintiff's comment about a character's "perverse attraction to the same sex," Professor Hinkley noted in the margin "Why is attraction to the same sex perverse? This is a strong statement that needs critical backup. Otherwise it's just inflammatory." Having read the entire paper, Professor Hinkley wrote "Monica, as you will see I stopped commenting after the second page. We can talk about that when we meet" on the cover page of Plaintiff's paper. [Doc. 49-3 at 2] Professor Hinkley had not assigned a grade because she wanted to give Plaintiff the chance to earn a higher grade by rewriting the paper. [Doc. 49-4 at 3] During the March 6, 2012 class, Professor Hinkley returned the other students' Desert Hearts papers, which she had graded.

Plaintiff and Professor Hinkley set up a meeting for March 8, 2012, which fell through when Professor Hinkley canceled the meeting in a March 7, 2012 e-mail. In her e-mail, Professor Hinkley told Plaintiff that she could pick up her paper at the Cinematic Arts Department office, and that over spring break she should "ponder the responses" that Professor Hinkley had written on Plaintiff's Desert Hearts paper. [Doc. 11 at 4, ¶ 20]

Plaintiff and Professor Hinkley eventually met after spring break for about 45 minutes prior to class on the afternoon of Tuesday, March 20, 2012. [Doc. 49-5 at 2] Professor Hinkley and Plaintiff went through Plaintiff's paper. Professor Hinkley was personally offended by some of Plaintiff's anti-lesbian remarks. [Doc. 49-3 at 7] Professor Hinkley questioned Plaintiff's use of the term "barren wombs" and Plaintiff's characterization of lesbianism as "perverse." Professor Hinkley told Plaintiff that parts of Plaintiff's Desert Hearts paper could be considered "hate speech." Plaintiff shared with Professor Hinkley that she "liked rough men, that she liked rough sex with men, and that she found lesbians to be like weak men."2 Plaintiff told Professor Hinkley that some of the films she had watched for class were unendurable. Professor Hinkley responded that there were likely to be more films that Plaintiff would find unendurable. [Doc. 49-4 at 1] Plaintiff interpreted Professor Hinkley's remark as a suggestion that it would be in Plaintiff's best interests not to return to class. But somewhat inconsistently, Plaintiff also recalled Professor Hinkley proposing that Plaintiff write a new paper on a different film, for which paper Plaintiff would likely receive a good grade. Plaintiff left the meeting believing that her status in Professor Hinkley's class remained up in the air. Professor Hinkley left the meeting believing that Plaintiff had agreed to rewrite her Desert Hearts paper. [Doc. 49-3 at 1] The meeting ended when it was time for class to begin.

Plaintiff attended class that afternoon. During the class Plaintiff engaged in off-topic rants about Tony Curtis's sexuality and Elizabeth Edwards. [Doc. 49-4 at 1]

The next day, March 22, 2012, Plaintiff unsuccessfully attempted to meet with Professor Hinkley. Later in the day she met with UNM Provost Jane Slaughter to discuss her concerns about Professor Hinkley and the Images of (Wo)men class. Plaintiff also met with Assistant Dean Holly Barnet-Sanchez, who told Plaintiff that she should first raise her concerns to Professor Hinkley's immediate superior, Professor Susan Dever, Department Chair of the Cinematic Arts Department. [Doc. 49-5 at 3] Plaintiff wrote out a statement claiming that Professor Hinkley had "refused" to grade Plaintiff's Desert Hearts paper, accused Plaintiff of hate speech, and mischaracterized her paper as an "opinion paper."

On the following day, March 23, 2012, Plaintiff met with Professor Dever and Professor James Stone, an assistant professor in the Cinematic Arts Department. Professors Dever and Stone explained to Plaintiff that the words "barren" and "cock" as used by Plaintiff in her Desert Hearts paper were inappropriate and offensive. Professor Dever told Plaintiff that if Plaintiff persisted in the use of barren there would be academic "consequences." Plaintiff conceded that she had written a "barking dog of a paper."3 When the meeting concluded, Professor Dever understood that Plaintiff had agreed to remain enrolled in the Images of (Wo)men class, which would be converted to an outside-the-classroom independent study format with Professor Dever as Plaintiff's instructor. The Desert Hearts paper would not be considered in assigning Plaintiff a grade, which would be based on the grades Professor Hinkley had given to Plaintiff's other papers and Plaintiff's further work under Professor Dever. Plaintiff felt that she had no choice but to agree to the independent study format proposed by Professor Dever.

In an e-mail dated Monday, March 26, 2012, Professor Dever documented her understanding of the outcome of the March 23, 2012 meeting:

Dear Monica,

On March 27, 2012, Professor Dever e-mailed Plaintiff, apparently attaching the "Writer's Checklist" she had mentioned in her March 26, 2012 e-mail. This was the first time that Plaintiff had been provided with the Writer's Checklist. [Doc. 49-5 at 2] Professor Dever briefly discussed the Sirk paper and proposed that Plaintiff and she exchange e-mails prior to meeting the next week.

On March 29, 2012, Plaintiff sent the following e-mail to Professor Dever:

Later, on March 29, 2012, Plaintiff e-mailed the following message to Professor Dever: "When can you speak in person or over the telephone, as I've decided what exactly I want to do." Professor Dever e-mailed back that it would be "Best if I call in a few." Plaintiff and Professor Dever appear to have had a phone conversation, given the following e-mail Plaintiff sent to Professor Dever later on March 29, 2012:

April 4, 2012 e-mails from Professor Dever to Plaintiff suggest that Plaintiff and Professor Dever were proceeding with an independent study along the lines proposed by Professor Dever. [Doc. 49-5 at 10] Plaintiff and Professor Dever met for their first independent study session on April 5, 2012. [Doc. 30-5 at 2] During that meeting Plaintiff told Professor Dever that she had changed her mind and intended to make her Desert Hearts paper the subject of her independent study. Professor Dever reluctantly agreed. Professor Dever instructed Plaintiff to have a draft revision of Plaintiff's paper on Desert Hearts ready on April 10, 2012.

On April 6, 2012, Professor Dever e-mailed Plaintiff to provide some suggestions for Plaintiff's paper and to propose a plan for the remainder of the semester. [Doc. 49-6 at 6-8] With respect to the topic of language, Professor Dever suggested "you might try excising adjectives that, as Professor Stone pointed out, have negative weight and are hard to prove. `Childless,' for example, has less of a derogatory tone than `barren,' a term that has been used historically to punish and degrade women; `perverse' is opinion and just muddies another point the essay seems to be making." Commenting on Plaintiff's decision to revert to a paper on Desert Hearts, Professor Dever wrote: "I do think you have chosen the hardest road in selecting to revise this particular piece, and encourage you, as I did earlier, to consider moving on to a fresh theme. Still, if you can capitalize on your determination and truly use that gumption as a motivator for writing, you may get some mileage from the effort you've already invested, transforming the essay as a learning experience. I'll support your efforts either way, as you know."

On Sunday, April 8, 2012, Plaintiff responded to Professor Dever's April 6, e-mail:

On April 9, Professor Dever responded to Plaintiff's April 8 e-mail. In response to Plaintiff's decision to use the word barren, Professor Dever wrote: "you can make your choices, certainly, but after so much conversation about the word, we know that, as I said in my e-mail and our meeting, your choices have consequences." Professor Dever ended her e-mail, writing ""Cheers, and looking forward to your e-mailing your paper tomorrow. Susan." [Doc. 49-6 at 4-5]

Later on April 9, 2012 Plaintiff met with Associate Dean Barnet-Sanchez. The meeting did not resolve Plaintiff's issues.

Plaintiff did not turn in her revised paper on April 10, 2012. Plaintiff did not turn in any further work.

On April 24, 2012, Plaintiff met with William Gilbert, Interim Dean of the College of Fine Arts to discuss Plaintiff's complaint that Professor Hinckley had refused to grade Plaintiff's Desert Hearts paper. The meeting did not resolve any of Plaintiff's issues.

On May 16, 2012, Plaintiff met with Michael Dougher, Vice Provost for Research, and Professors Hinkley and Dever to discuss Plaintiff's complaint that Professor Hinkley had refused to grade Plaintiff's Desert Hearts paper. When asked what she wanted, Plaintiff said that she wanted her tuition refunded.

UNM refunded Plaintiff's tuition for "Images of (Wo)men: From Icons to Iconoclasts."

Plaintiff's Claims for Damages are Barred by Qualified Immunity

In its September 29, 2014 Memorandum Opinion and Order the Court denied Defendants' motion to dismiss, rejecting Defendants Hinkley and Dever's claim of qualified immunity. [Doc. 27] For the reasons given below, the Court revisits that decision.

First, the case now is before the Court on a motion for summary judgment. Most significantly, when the Court entered its September 29, 2014 Memorandum Opinion and Order, the factual evidence proffered in the motion for summary judgment and the response was not before the Court. The Court had not yet seen Plaintiff's paper or Professor Hinkley's comments, had not seen the e-mails that Plaintiff and Professor Dever exchanged, and had not read Professor Hinkley and Professor Dever's deposition excerpts. As frequently happens, the account presented by the evidence submitted in support of and in opposition to a motion for summary judgment is considerably more nuanced than the more selective version of events alleged in a complaint.

Second, after the Court entered its September 29, 2014 Memorandum Opinion and Order denying qualified immunity, the Court of Appeals issued its opinion in Quinn v. Young, 780 F.3d 998 (10th Cir. 2015), reversing a decision of this Court denying qualified immunity. Quinn emphasizes the point that a court must not decide the second prong of the qualified immunity analysis at a high level of generality. 780 F.3d at 1005. The Court of Appeals' decision in Quinn impelled the Court to reexamine its ruling on qualified immunity in the present case. In concluding that the law was well-settled, the Court principally relied on the Court of Appeals' decision in Axson-Flynn v. Johnson, 356 F.3d 1277, 1285 (10th Cir. 2004). Although Axson-Flynn most certainly clarified the law governing the first amendment rights of university students, it established fairly general principles,4 and its facts were materially distinguishable5 from the facts of the present case. The Court concludes that it erred in its September 29, 2014 Memorandum Opinion and Order by analyzing the second prong of qualified immunity at too high a level of generality. What the Court needs, and what Plaintiff has failed to provide, is a citation to an on-point Tenth Circuit or Supreme Court decision, or an analysis of the weight of authorities from other courts, clearly establishing that the types of restrictions Professor Hinkley and Professor Dever imposed on Plaintiff's Desert Hearts paper did not reasonably relate to legitimate pedagogical concerns. See Quinn, 780 F.3d at 1005. Plaintiff's reliance on Hansen v. Ann Arbor Public Schools, 293 F.Supp.2d 780, (E.D. Mich. 2003), an out-of-circuit district court case, to make out a case that her First Amendment rights were violated [Doc. 49 at 19-20], is a further indication that the law on which Plaintiff relies was not clearly established in the Tenth Circuit.

The law similarly is unsettled as to the issue of pretext under the facts of this case. There is evidence that Professor Hinkley was personally offended by Plaintiff's anti-lesbian statements. But under established Tenth Circuit precedent, the answer to the question "were the restrictions on the student's speech reasonably related to legitimate pedagogical concerns?" determines whether the student's speech "fell within the ambit of First Amendment protection." See Vanderhurst v. Colo. Mt. Coll. Dist., 208 F.3d 908, 914 (10th Cir. 2000). It is not clear to the Court why, if restrictions on a student's speech, viewed objectively,6 are reasonably related to legitimate pedagogical concerns, an instructor's subjective hostility to the student's viewpoint should matter, since, under Vanderhurst, a determination that the restrictions are reasonably related to legitimate pedagogical concerns takes the student's speech outside "the ambit of First Amendment protection." In the Court's view, Tenth Circuit law is unsettled as to the relationship between a finding that restrictions on student speech are reasonably related to legitimate pedagogical concerns and a finding that instructor harbored subjective hostility to the student's viewpoint.7 There is no clear answer as to which finding controls liability under the First Amendment in a Hazelwood context. The Court concludes that the law as it existed in March and April of 2012 would not have provided Professor Hinkley with fair warning that she could be held liable for violating Plaintiff's First Amendment rights based on her subjective hostility to Plaintiff's homophobic speech even if the restrictions she imposed on Plaintiff's speech were reasonably related to legitimate pedagogical concerns.8

The Court concludes that the law governing Plaintiff's First Amendment claims was not clearly established at the times of the events described in the First Amended Complaint. The Court therefore will grant Defendants' motion for summary judgment as to Plaintiff's claims for damages against Defendants Caroline Hinkley and Susan Dever.

Plaintiff Is Not Entitled to a Declaratory Judgment

Defendants argue that if Professors Hinkley and Dever are entitled to qualified immunity, the Court should also dismiss Plaintiff's declaratory judgment count. [Doc. 30 at 23] The Court agrees that Count II should be dismissed, but for somewhat different reasons than those proposed by Defendants.

First, Plaintiff requests a declaratory judgment that "Defendants' actions violated Plaintiff's rights secured by the First Amendment to the United States Constitution." [Doc. 11 at 11]. Plaintiff's request for a declaratory judgment addresses conduct that has already occurred. A declaratory judgment is not available "simply to proclaim liability for a past act." Lawrence v. Kuenhold, 271 Fed. App'x 763, 766 (10th Cir. 2008).

Second, the Board of Regents is an arm of the State of New Mexico, and is immune from suit in federal court under the Eleventh Amendment. Barrett v. Univ. of New Mexico Bd. of Regents, 562 Fed. App'x 692, 694 (10th Cir. 2014). The Eleventh Amendment bars a federal court from issuing a declaratory judgment that past conduct by a State violated the constitution. Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993); Lawrence v. Kuenhold, 271 Fed. App'x 763, 766 (10th Cir. 2008); Int'l Coalition for Religious Freedom, 3 Fed. App'x 46, 49 (4th Cir. 2001).

WHEREFORE, IT HEREBY IS ORDERED that Defendants' Motion for Summary Judgment [Doc. 30] is granted and that the First Amended Complaint and this Action are dismissed with prejudice.

So ordered.