Posted by Eugene Volokh:
Professor in Speech Class Refuses to Grade Student's Presentation,
http://volokh.com/archives/archive_2009_02_15-2009_02_21.shtml#1234851253
apparently because of the religious nature of the student's
presentation, the student's expression of opposition for same-sex
marriage in the presentation, or both. On top of that, he apparently
called the student a "fascist bastard" in front of the class for
having supported the anti-same-sex-marriage Prop. 8, and refused to
allow the student to finish the presentation. Lovely.
The student, helped by the Alliance Defense Fund, is [1]suing (Lopez
v. Candaele). The Complaint I linked to includes supporting documents.
In particular, the evaluation sheet on p. 31 reflects that the teacher
indeed didn't give a grade, but instead said "Ask God what your grade
is." It seems to me pretty clear that refusal to give a grade because
the teacher disapproves of the religiosity of the student's
presentation, or of the student's opposition to same-sex marriage, is
indeed a First Amendment violation.
Professors doubtless have a vast degree of flexibility in grading
students, even in viewpoint-based ways. For instance, if a law student
is told to construct the best possible argument in support of position
X (as I often require on my exams), he may be graded down for instead
constructing an argument opposing position X. Likewise, if a student,
in response to a question about how old the Earth likely is, answers
"6000 years," he can be graded down even though a student who answered
"4.5 billion years" would have gotten full credit. A judgment about
how old the Earth is an expression of a viewpoint based on the best
available evidence, so the professor's grading would indeed favor one
viewpoint over another -- but entirely permissibly so.
Nonetheless, this flexibility can't be unlimited, I think: When a
professor refuses to give a grade, or (to take a hypothetical) even if
the professor gives a low grade but for a reason that pretty clearly
falls outside the academic subject matter of the class (for instance,
because a student in a speech class expressed political viewpoints
that the professor disapproved of), that violates the First Amendment.
The evaluation sheet also shows that the teacher wrote "proselytizing
is inappropriate in public school." If, as seems likely, this
represents the teacher's view that it is somehow an Establishment
Clause violation for a student to convey religious views in his
in-class presentation, that is not accurate. (If the teacher had set
up an assignment that required secular arguments rather than religious
arguments, I think that would have been within his authority, since I
don't think Rosenberger applies to class presentations. But the
teacher's reference to public school suggests that he's making a claim
about the constitutional rules that apply to public institutions, and
not to general professional norms that would apply to all colleges, or
specific requirements for his own class.)
The complaint also seeks to invalidate L.A. City College's campus
speech code, which the professor also referred to in a follow-up to
the incident (see p. 170); I think the plaintiff should prevail on
that.
Finally, note that one of the College's responses (pp. 37-38) states
that the College is indeed acknowledging that the teacher's behavior
was improper, that the teacher would be disciplined in some
unspecified way, and that Lopez wouldn't ultimately be penalized on
his final grade. At the same time, though, the College's response
notes that several students were offended by Lopez's statements, and
says:
Where do we go from here? Regardless of the other students'
reactions to Mr. Lopez' speech, Mr. Matteson will still be
disciplined. First amendment rights will not be violated as is
evidenced by the fact that even though many of the students were
offended by Mr. Lopez' speech, no action will be taken against any
of them for expressing their opinions.
No actions will be taken against any of the students for expressing
their opinions critical of Lopez -- what a blow for the freedom of
speech! (Even if the "any of them" is meant to include Lopez as well
as the other students, surely the reference to "any of them" misses
the point, no?)
References
1. http://www.telladf.org/UserDocs/LopezComplaint.pdf
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