Critic of Lesbian Film Can’t Sue Her Professor

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By Patrick L. Gregory

A professor can’t be sued for allegedly pressuring a student to revise anti-gay language in a class assignment, the U.S. Court of Appeals for the Tenth Circuit held March 28 ( Pompeo v. Bd. of Regents of Univ. of N.M. , 2017 BL 97985, 10th Cir., No. 15-2179, 3/28/17 ).

Educators can restrict school-sponsored speech that they find inflammatory or offensive if doing so relates to a legitimate educational goal, the decision by Judge Carlos F. Lucero said.

University of New Mexico student Monica Pompeo criticized a movie character’s “perverse attraction to the same sex” in a response paper concerning a “lesbian romance” film, the court said.

Pompeo alleged that her professor, Caroline Hinkley, violated her First Amendment rights by pressuring her to change that language, the court said.

But teaching Pompeo to avoid inflammatory language was a “legitimate pedagogical goal,” the court said.

The professor was entitled to qualified immunity because Pompeo didn’t have a clearly established right to use inflammatory language without being pressured to make changes, the court said.

Qualified immunity protects government officials from damages suits unless they violated clearly established rights.

The court affirmed the district court’s grant of summary judgment in favor of the professor.

Judge David M. Ebel joined the decision. Judge Neil M. Gorsuch was originally a member of the panel but didn’t participate in the opinion.

In January, Gorsuch was nominated for a seat on the U.S. Supreme Court (85 U.S.L.W. 993, 2/2/17). He isn’t taking part in any cases while the nomination is pending.

Gorence & Oliveros P.C. argued for Pompeo. Keleher & McLeod argued for Hinkley.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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