Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004)

Christina Axson-Flynn is a former student at the University of Utah. She is also a member of the Church of Latter-Day Saints. Axson-Flynn has sued her university theater department professors for violating her right to free speech and free exercise of religion under the First Amendment by requiring, as part of the curriculum, that students perform in-class plays, despite Axson-Flynn's religious objections. As part of the theater department curriculum, the professors assert that "it is an essential part of an actor's training to take on difficult roles, roles which sometime[s] make actors uncomfortable and challenge their perspective." The student alleges that she told the theater department before being accepted into the "Actor Training Program" that she refused to "take the name of God or Christ in vain" or use certain "offensive" words. After she was accepted into the program, she changed some words in assigned scripts for in-class performances so as to avoid using words she found offensive. Her professors warned her that she would not be able to change scripts in future assignments. Axson-Flynn dropped out of the special theater program, and sued her professors. In August 2001 the district court ruled against the student. The court hypothesized that if the curriculum requirements were to constitute a First Amendment violation, "then a believer in 'creationism' could not be required to discuss and master the theory of evolution in a science class; a neo-Nazi could refuse to discuss, write or consider the Holocaust in a critical manner in a history class." A copy of the federal district court opinion is available at http://www.nysd.uscourts.gov/courtweb/pdf/D10utxc/01-08418.PDF. Axson-Flynn appealed the ruling to the U.S. Court of Appeals for the Tenth Circuit. The AAUP filed an amicus brief  in support of the professors and university in May 2002. In the brief the AAUP argues that: (1) seeking to hold professors liable for damages because they insist that students complete established course requirements contravenes settled principles of First Amendment faculty academic freedom; and (2) giving a high level of deference to academic judgments and requirements established by university faculty is proper. Oral argument before the Tenth Circuit was heard November 19, 2002.

Status: On February 3, 2004 the Tenth Circuit reversed and remanded the lower court. While the panel of three judges clearly embraced the notion that courts should defer to the professional judgment of faculty to determine what is pedagogically appropriate in the college classroom, the court ultimately concluded that "[v]iewing the evidence in a light most favorable to Axson-Flynn, . . . . there is a genuine issue of material fact as to whether [the professors'] justification for the script adherence requirement was truly pedagogical or whether it was pretext for religious discrimination." The court did not recognize a separate right of academic freedom under the First Amendment. It nonetheless observed that the First Amendment must be applied within the context of the university. Unfortunately, the court analyzed this case under the Hazelwood decision, which arose in the K-12 setting, and applied that analysis to curricular speech in colleges and universities.