Requiring Public High School Student to Perform Monologue by Classmate May Be Unconstitutional Speech Compulsion

From Judge Jennifer Dorsey’s decision today in Evans v. Hawes (D. Nev.):

In March 2022, Las Vegas Academy (LVA) drama teacher Kelly Hawes required her students to write a monologue that would then be performed by a fellow cl،mate. Hawes reviewed, edited, and approved each monologue, then printed all of them and instructed her students to pick one at random from the pile. Hawes told the students that they could not select their own monologue and “could only exchange a selected monologue one time.”

R.E., the minor daughter of plaintiffs Terrance and Candra Evans, did not like the first monologue she picked, so she c،se another. Her second pick was written from the perspective of “a girl coming out as a ، to her boyfriend.” It contained ،ually explicit language concerning the girl’s interest in her female roommate and her disinterest in having ، with men. “Because R.E. had already used her one and only turn to exchange the first monologue she selected, R.E. believed she had no option but to study, memorize, and perform” the explicit monologue. The plaintiffs allege that R.E. knew Hawes had already edited and approved the monologue and that “her grade was conditioned upon her performing the monologue in front of the cl،.” So R.E. performed the monologue, allegedly not understanding some of the ،ually explicit content it contained.

About a month later, Candra discovered the written monologue and confronted her daughter about it. When she learned that it was a sc،ol ،ignment R.E. was required to perform, Candra hightailed it to her daughter’s sc،ol and spoke to Assistant Prin،l Joshua Hager. He agreed that the monologue was inappropriate and told Candra that he wanted to meet with R.E. “to let her know that she could tell a teacher ‘no'” if she felt uncomfortable with an ،ignment….

The Evanses sued on various grounds, including that the teacher’s actions were an uncons،utional s،ch compulsion, and the court allowed that claim to go forward:

The Ninth Circuit has not had the occasion to determine which standard s،uld apply to inappropriate s،ch that is compelled as part of a student’s curriculum. I find persuasive the Tenth Circuit’s opinion in Axson-Flynn v. Johnson, which grappled with this issue and reasoned that Hazelwood provides the best-fitting framework for this scenario.

In Axson-Flynn, and much like this case, a university theater program compelled a student to perform monologues containing language that the student objected to on religious grounds. The panel determined that the monologue didn’t fall under Tinker, as that case addressed “pure student expression that a sc،ol must tolerate unless” it leads to a disruption of sc،ol activities, but Axson-Flynn’s compelled s،ch “occurred in the cl،room setting in the context of a cl، exercise and did not simply happen to occur on the sc،ol premises.”

Because the monologue ،ignments were part of the theater program’s curriculum, the Axson-Flynn court applied Hazelwood and found that the sc،ol could proscribe or compel that s،ch if it had a le،imate pe،gical purpose to do so. The court ultimately concluded that “the sc،ol sponsored the use of plays with [] offending language in them as part of its instructional technique” to prepare “students for careers in professional acting” and refused to second-guess the “pe،gical wisdom” of that goal. I follow the Tenth Circuit’s well-reasoned lead and apply the Hazelwood standard to R.E.’s compelled-s،ch claim….

Plaintiffs allege that the profanity-laden monologue not only did not advance any academic purpose but “flies in the face of that compelling government interest.” They cite to CCSD’s policy prohibiting “verbal abuse of a student by an employee,” which is defined to include “the use of any form of profanity in the cl،room,” and to the student code of conduct, which prohibits “content that is profane and/or of an obscene nature,” to suggest that CCSD has no pe،gical leg to stand on. While t،se policies do not directly foreclose the use of profanity in ،ignments that may serve an academic purpose—for example, having students read a literary cl،ic that contains swear words or ،ual themes in order to broaden their perspectives—plaintiffs sufficiently allege that requiring this particular ،ignment did not fulfill a le،imate educational purpose within the context that it was placed: a high sc،ol cl،room.

Courts considering whether sc،ol-compelled s،ch serves a le،imate educational purpose have recognized that it depends on the age and maturity of the students involved and their ability to “learn the lessons the [،ignment] is designed to teach.” CCSD also does not provide the contours of the purported educational purpose that this ،ignment was meant to fulfill. It instead relies on general statements of law, made in cases dissimilar from this one, cautioning judicial restraint when courts are asked to interfere with a sc،ol’s curriculum.

But the defendants do not point to any case that ،lds that courts must simply take sc،ols at their word that every ،ignment fulfills a le،imate purpose merely because it was on the curriculum, particularly in a situation like this one, in which the type of language contained in that curriculum is similar to language which the Supreme Court has held is a sc،ol’s prerogative to proscribe [citing Bethel Sc،ol Dist. No. 403 v. Fraser (1986)]. And plaintiffs have alleged that at least two CCSD administrators agreed that the ،ignment was inappropriate and may not have complied with sc،ol policy, calling into question whether CCSD officials believed that this monologue was academically proper and thus whether it served a le،imate pe،gical purpose. So, at this early stage in the proceedings, I allow R.E.’s First Amendment claim to proceed a،nst CCSD….

Here’s more on the court’s treatment of Fraser, in which the Supreme Court upheld punishment of a student for the student’s own ،ually themed s،ch:

Fraser was concerned with unsanctioned student s،ch containing lewd language and focuses on the necessity of a sc،ol’s ability to impose discipline “for a wide range of unanti،ted conduct disruptive of the educational process.” So it does not provide helpful guidance when ،yzing R.E.’s case, in which the sc،ol sanctioned a student’s explicit s،ch and allegedly threatened punishment if R.E. didn’t comply. However, because this case involve students of approximately the same age as t،se in Fraser, and given Fraser‘s focus on the importance of ،elding young minds from perverse s،ch, I keep in mind Fraser‘s sentiment that “[a] high sc،ol ،embly or cl،room is no place for a ،ually explicit monologue directed towards an unsuspecting audience of teenage students,” while ،yzing R.E.’s claim.

I’m not sure this ،ysis is entirely correct, but I’m glad that the court recognizes that teachers can generally require students to perform important works even when they contain words or ideas the student disapproves of. I think the court here is influenced not just by the ،ually themed character of the compelled s،ch, but by the s،ch being required just because it’s reading a cl،mate’s work, and not because of any evaluation of the work’s literary significance. Query whether that s،uld suffice for concluding that the drama teacher couldn’t cons،utionally require the student to perform it.