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
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.
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 Secondary Education (PBCSE) Program (the "Program") to students who have bachelor's degrees and wish to obtain certification as secondary school teachers.
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,
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:
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
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.
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:
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 contact between teachers and students or minors, see Haw. Admin. Rules, § 8-54-9, and
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 non-discriminatory 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 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."
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.
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
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.
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.
Granting the University's motion for summary judgment, the district court concluded that because the individual defendants
"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).
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, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). See id. at 568, 88 S.Ct. 1731 (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, 89 S.Ct. 733, 21 L.Ed.2d 731 (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 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
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, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007) (quoting Tinker, 393 U.S. at 506, 89 S.Ct. 733). 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, 108 S.Ct. 562 (citation omitted) (quoting Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 685, 106 S.Ct. 3159, 92 L.Ed.2d 549 (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 of the school." 393 U.S. at 513, 89 S.Ct. 733. Tinker involved a group of students who wore black armbands to school in protest of the Vietnam War. 393 U.S. at 504, 89 S.Ct. 733. 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, 89 S.Ct. 733.
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, 106 S.Ct. 3159. 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, 108 S.Ct. 562. 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, 127 S.Ct. 2618. 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, 127 S.Ct. 2618).
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
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. at 271-72, 108 S.Ct. 562. Here, this "imprimatur" concept resonates not because the views of a certification candidate may be "erroneously attributed to the school," id. at 271, 108 S.Ct. 562, 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 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, 108 S.Ct. 562.
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, 108 S.Ct. 562 (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 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)).
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, 108 S.Ct. 562. 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, 102 S.Ct. 269, 70 L.Ed.2d 440 (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.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, 108 S.Ct. 562. 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,
Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (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
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 it performs through its employees.'" City of San Diego v. Roe, 543 U.S. 77, 82, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) (per curiam) (alteration in original) (quoting Pickering, 391 U.S. at 568, 88 S.Ct. 1731). "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:
Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009).
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, 125 S.Ct. 521). "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, 103 S.Ct. 1684, 75 L.Ed.2d 708 (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, 114 S.Ct. 1878, 128 L.Ed.2d 686 (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 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.
However useful public employee speech doctrine may appear, however, it
The second problem, as with student speech doctrine, is that public employee speech doctrine provides no basis for 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, 88 S.Ct. 1731; 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, 77 S.Ct. 1203. 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.
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
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 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.
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.
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 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
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, 106 S.Ct. 3159 (explaining that a high school may regulate speech that "would undermine the school's basic educational mission"); Roe, 543 U.S. at 82, 125 S.Ct. 521 (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, 103 S.Ct. 1684 ("The Pickering balance requires full consideration of the government's interest in the effective and efficient fulfillment of its responsibilities to the public.").
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 suggested that she would "violate several provisions of the American Counseling Association's (ACA)
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 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, 103 S.Ct. 1684 (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 sexual predation on children, for example, or the importance
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.
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 restrictions on protected speech be narrowly drawn. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, 105 L.Ed.2d 661 (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, 100 S.Ct. 2343, 65 L.Ed.2d 341 (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, 77 S.Ct. 524, 1 L.Ed.2d 412 (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, ___ U.S. ___, 134 S.Ct. 2518, 2534, 189 L.Ed.2d 502 (2014) (quoting Riley v. Nat'l Fed. of Blind of N.C., Inc., 487 U.S. 781, 795, 108 S.Ct. 2667, 101 L.Ed.2d 669 (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
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 "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.
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, 108 S.Ct. 562 (student speech); Connick, 461 U.S. at 154, 103 S.Ct. 1684 (public employee speech); see also Int'l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 683, 112 S.Ct. 2701, 120 L.Ed.2d 541 (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
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, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998); 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 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
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 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,
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").
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, 98 S.Ct. 948. 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, 98 S.Ct. 948. 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, 98 S.Ct. 948.
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.
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.