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Ala. court applies Hazelwood in college student's First Amendment case

February 14, 2011

ALABAMA — A U.S. district court has applied Hazelwood v. Kuhlmeier to support the dismissal of an Auburn University at Montgomery nursing student.

The university dismissed Judith Heenan from the school of nursing in 2007 after she continually spoke out against the school’s disciplinary system, which allows instructors to penalize students for unsafe practices in the classroom setting. Students are given one “point” per violation.

According the university, Heenan was dismissed “for failing to complete classroom tasks adequately, for performing poorly in clinical evaluations and for exhibiting unprofessional behavior in a professional environment.”

Heenan contends she was singled out by the university’s faculty because of her criticism of the point system and that her First and Fourteenth Amendment rights were violated.

In a Dec. 27 opinion, Judge Myron Thompson analyzed the case under the 1988 high school censorship standard of Hazelwood. He found “the maintenance of a grading and disciplinary system that allows the school to graduate competent nurses is clearly ‘reasonably related to legitimate pedagogical concerns.’”

Heenan enrolled in the AUM School of Nursing in 2004. During her time in the nursing program she accrued four disciplinary points, the last one coming in spring 2007.

Thompson referenced the four points—the maximum number allowed before an advisory committee meets to discuss potential dismissal—saying they came from four separate instructors because of Heenan’s “performance in the classroom.”

Heenan asked the court to reconsider its ruling. The Student Press Law Center filed a friend-of-the-court brief expressing concern over the judge’s application of Hazelwood.

In a Jan. 26 opinion, Thompson conceded “the court failed to draw a distinction between Heenan’s grievances that were expressed in nurse-training related circumstances and those that were not.” He concluded, however, that “the evidence is still overwhelming that she was dismissed for proper reasons totally unrelated to her speech.”

Frank LoMonte, SPLC executive director, said he’s glad the original decision was restricted but the modified opinion still poses issues.

“The original decision was really worrisome because it opened up the possibility that any criticism of school curriculum—anywhere, anytime—would be unprotected speech. That’s pretty clearly not the law, and if that became the law it would effectively spell the end of independent journalism,” LoMonte said. “It’s a relief that the judge came back in a modified opinion and significantly reined in the reach of the initial decision. I think it’s very clear now that the rule is limited to talking directly back to your instructor in the middle of a teaching session. So as amended I think the ruling leaves intact the core First Amendment protection for journalistic activities.”

He said the Hazelwood standard was not created for students like Heenan, who is in her 50s.

“I think it should have been a factor that the Hazelwood rule -- which was created to protect impressionable 15-year-olds -- is of very limited usefulness when the student is in her 50s,” LoMonte said. “I think this case really exemplifies why Hazelwood is the wrong standard for college and especially for graduate level education because you are talking about people who at times are middle-aged adults.”

The deadline to appeal the decision to the 11th U.S. Circuit Court of Appeals is Feb. 25.

Heenan could not be reached for comment and her attorney, Gary Atchison, declined to comment.

Attorneys for the university could not be reached for comment.

By Nathan Hardin, SPLC staff writer

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