Ex-U. actress to get jury trial in bias lawsuit
By Angie Welling
Deseret Morning News
University of Utah theater professors may have violated the constitutional rights of a former student when they refused to allow her to omit profanity from an in-class performance, a federal appeals court ruled Tuesday.
Christina Axson-Flynn
The 10th U.S. Circuit Court of Appeals determined that a jury should decide whether the university discriminated against Christina Axson-Flynn because of her membership in The Church of Jesus Christ of Latter-day Saints.
The unanimous decision overturns U.S. District Judge Tena Campbell's August 2001 decision that requiring an acting student to use profanity when portraying a character does not infringe on students' rights to free speech and exercise of religion.
"This is a great victory for religious freedom," said Axson-Flynn's attorney, Michael Paulsen. "It is a unanimous decision rejecting the lower court's approach and finding that a state university may not discriminate in an academic program on the basis of a student's religious beliefs and freedom of speech. Students cannot be compelled by university officials to violate their religious consciences by word or deed.
"That's a huge principle, and I think it will be hugely important to the rest of the nation."
Both Paulsen, a law professor at the University of Minnesota who specializes in cases involving freedoms of speech and religion, and fellow Axson-Flynn attorney Brad Parker called Tuesday's decision a landmark ruling.
"It affirms the concept that religious convictions have value and are protected under the Constitution," Parker said. "We also believe it dictates and reaffirms the principle that our educational institutions, like the University of Utah, should be institutions of tolerance for moral and religious beliefs."
Axson-Flynn, now 24, said Tuesday she was "thrilled" with the decision, which has been pending since November 2002, when the appeals court heard arguments in the case.
Though disappointed by the resurrection of the case, university officials welcomed a trial as an opportunity to defend the U.'s nationally ranked Actor Training Program. "We're confident that the facts that will be developed in the district court will vindicate the actions of our theater department faculty," department chairman David Dynak said.
"We feel throughout this long period of time that the representatives of Christina Axson-Flynn have made a number of unfair and false allegations against the U., against our program and against our faculty. We refute these baseless allegations and we will continue to defend the integrity of our program."
Before she was accepted into the program in 1998, Axson-Flynn told department officials she would not take her Lord's name in vain or use certain expletives. But when she later objected to the words, Axson-Flynn claims she was threatened with a failing grade and told to "get over" her religious convictions.
She left the program in 1999 and filed the federal lawsuit the next year.
"There is no question that in the instant case, defendants attempted to compel Axson-Flynn to speak," Tuesday's opinion states. "Although they never suspended her from the ATP or explicitly threatened her with expulsion, defendants made it abundantly clear that Axson-Flynn would not be able to continue in the program if she refused to say the words with which she was uncomfortable."
The question, then, is whether the compelled speech was meant for purely educational reasons or if there was an underlying discriminatory purpose.
The opinion is clear that restricted or compelled speech is appropriate in schools if it is "reasonably related to legitimate pedagogical concerns." It noted students are often required to express viewpoints contrary to their personal beliefs for any number of reasons, most of which are entirely justified
The U. has argued in court documents that scripts are chosen as a teaching tool to "challenge students with characters and stories that might be quite different from their own life experiences."
However, Tuesday's opinion calls into question the theater department's motivation in requiring Axson-Flynn's strict adherence to the texts.
The court noted Axson-Flynn's allegations that professors instructed her to look to "good Mormon girls" for guidance and that she was told she could fulfill the assignments and "still be a good Mormon." She has also alleged that a male Jewish student was allowed to skip an exercise on Yom Kippur without consequence.
The evidence, which the university has not yet had an opportunity to dispute, "certainly raises concern that hostility to her faith rather than a pedagogical interest in her growth as an actress was at stake in (the university's) behavior in this case," the court said.
"(W)e find that there is a genuine issue of material fact as to whether defendants' justification for the script adherence requirement was truly pedagogical or whether it was a pretext for religious discrimination," the court said. To prevail at trial, Axson-Flynn must prove professors refused to grant her an exemption specifically because of her religion.
While her attorneys said Tuesday that would be easy to do, Assistant Utah Attorney General Alain Balmanno is confident jurors will see that the Actor Training Program is specifically designed to prepare students for a career in professional acting.
"I think that the people of Salt Lake City are reasonable people and they're intelligent people and they will understand how and why a curriculum has to be developed that way," Balmanno said.
In analyzing Tuesday's decision, University of Utah law professor Daniel Greenwood expressed concern that the 10th Circuit failed to make a strong distinction between First Amendment issues in high schools or universities, where compelled speech is generally considered to be less harmful because students have the right to leave the classroom.
He also noted that while the constitutional rights of an individual student or university are thoroughly discussed in the 52-page opinion, there is little mention of the free-speech rights of professors.
"I think it's part of a larger debate about the role of the First Amendment in the classroom," Greenwood said. "The larger issue is that the court seems to see First Amendment rights for students and a university . . . but there's very little discussion of any First Amendment rights of the faculty member, which is what I would have thought was one of the traditional . . . cores of academic freedom."
Greenwood said professors must be free to espouse controversial points of view without fear, or to require students to examine issues outside their personal beliefs or comfort zone.
"One of the key purposes of a university is to have a space where critical thinking is practiced, and that has to be practiced by the faculty and the faculty has to have the ability to take on unpopular positions," he said. "If I were in a position where I could only ask students to take positions that they agree with, I don't know how I could function."
But Paulsen said it is possible to challenge students without violating their core values, as Axson-Flynn has claimed.
"No university professor has to teach their class in a way that is hostile to an individual's religious liberty," Paulsen said. "You can recognize professors' academic freedom rights, but at the same time recognize that students have freedoms, too."
After leaving the University of Utah, Axson-Flynn enrolled in the acting program at Utah Valley State College. She has since left that school and is awaiting the outcome of this case to decide where to go next.
She has continued her acting and has said she would like to return to the University of Utah to complete her studies.
E-mail: awelling@desnews.com
