Sex-With-Students Comment Gets Student Teacher Bounced

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By Kimberly Robinson

Dec. 30 — Statements that sexual relationships between teachers and underage students were “fine” properly led to the denial of a student's application to become a student teacher, the Ninth Circuit held Dec. 29.

The University of Hawaii didn't violate student Mark Oyama's First Amendment rights by denying his application, Judge Kim M. Wardlaw's opinion for the U.S. Court of Appeals for the Ninth Circuit said.

The court spent much of its time searching for the right framework to analyze Oyama's First Amendment claim and landed on a hybrid one for evaluating free speech claims brought by university students seeking training for public employment.

It adopted a “certification” framework, merging elements of the U.S. Supreme Court's student speech doctrine and public employee speech doctrine embodied in Tinker v. Des Moines Cmty. Sch. Dist., 393 U.S. 503 (1969) and Pickering v. Board of Education, 391 U.S. 563 (1968), respectively.

A number of other federal courts have seemingly applied a similar framework, though 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,” the court said.

Tests Inadequate

Neither the student speech doctrine—assessing the regulation of student speech at K-12 institutions—nor the public employee speech doctrine—assessing the regulation of government employees' speech—provided an adequate method because they failed to consider “the role of academic freedom at public universities,” the court said.

The student speech regime failed to account for the “ ‘special niche' universities occupy ‘in our constitutional tradition' ”—namely, training the “next generation of professionals,” the court said.

Moreover, the public employee regime was inadequate because 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.”

Improper Relationships

Several circuits—including the First, Sixth, Tenth and Eleventh—have adopted similar “certification” frameworks, the court said.

It added that even though “these decisions lack a common doctrinal foundation, they appear to provide a rule we find instructive here: universities may consider students' speech in making certification decisions, so long as their decisions are based on defined professional standards, and not on officials' personal disagreement with students' views.”

The Ninth Circuit fashioned its own test, saying that the university's action here passed constitutional muster because it “related directly 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.”

Refusing to approve Oyama for student teaching—a necessary step to becoming a teacher in Hawaii—because he said “that ‘it would be fine' for ‘a 12-year-old girl' to have a ‘consensual' relationship with her teacher” was directly related to the university's duty to ensure that Oyama met state and federal teaching standards, the court said.

Oyama's statements were inconsistent with rules prohibiting such relationships and requiring teachers to report them, the court said.

Judges Marsha Berzon and John B. Owens joined the opinions.

Eric A. Seitz, Della Au Belatti and Sarah R. Devine, all of Honolulu, represented Oyama. Christine Tamashiro, Darolyn H. Lendio and Ryan M. Akamine, all of Honolulu, represented the defendants.

To contact the reporter on this story: Kimberly Robinson in Washington at

To contact the editor responsible for this story: Jeffrey D. Koelemay at

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