Mark Oyama v. University of Hawaii

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK L. OYAMA, No. 13-16524

Plaintiff-Appellant,

D.C. No.

v. 1:12-cv-00137-

HG-BMK

UNIVERSITY OF HAWAII; CHRISTINE

SORENSEN; JEFFREY MONIZ; JOHN

DOES, 1–25; JANE DOES, 1–25, OPINION

Defendants-Appellees.

Appeal from the United States District Court

for the District of Hawaii

Helen W. Gillmor, Senior District Judge, Presiding

Argued and Submitted

June 9, 2015—Honolulu, Hawaii

Filed December 29, 2015

Before: Kim McLane Wardlaw, Marsha S. Berzon,

and John B. Owens, Circuit Judges.

Opinion by Judge Wardlaw

2 OYAMA V. UNIVERSITY OF HAWAII

SUMMARY*

Civil Rights

The panel affirmed the district court’s summary judgment

in an action brought by a secondary education candidate

alleging that the University of Hawaii’s denial of his

application to become a student teacher on the basis of his

speech violated his First Amendment and due process rights.

The panel held that in the context of a public university’s

professional certification program, the university may

evaluate a student’s speech, made in the course of the

program, in determining the student’s eligibility for

certification without offending the First Amendment under

certain circumstances. In this case, because the University of

Hawaii’s decision to deny plaintiff’s student teaching

application directly related to defined and established

professional standards, was narrowly tailored to serve the

University’s core mission of evaluating plaintiff’s suitability

for teaching, and reflected reasonable professional judgment,

the University did not violate plaintiff’s First Amendment

rights. In addition, because the University granted plaintiff

adequate procedural protections in denying his student

teaching application, it did not violate plaintiff’s due process

rights.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

OYAMA V. UNIVERSITY OF HAWAII 3

COUNSEL

Eric A. Seitz (argued), Della Au Belatti, and Sarah R. Devine,

Honolulu, Hawaii, for Plaintiff-Appellant.

Christine Tamashiro (argued), Darolyn H. Lendio, and Ryan

M. Akamine, Honolulu, Hawaii, for Defendants-Appellees.

Greg Lukianoff, Philadelphia, Pennsylvania, for Amicus

Curiae Foundation for Individual Rights in Education.

Eugene Volokh, UCLA School of Law, Los Angeles,

California, for Amicus Curiae Student Press Law Center.

OPINION

WARDLAW, Circuit Judge:

The University of Hawaii denied secondary education

candidate Mark L. Oyama’s application to become a student

teacher, a prerequisite for recommendation to the State of

Hawaii’s teacher certification board. This appeal from the

district court’s grant of summary judgment to the University

implicates the constitutional balance between two

prerogatives of a public university’s professional certification

program: promoting open discourse among its students and

limiting certification to candidates suitable for entry into a

particular profession. We must delineate the scope of the

University’s authority to deny a teaching candidate’s student

teaching application on the basis of the candidate’s speech.

We conclude that the University did not violate Oyama’s

First Amendment rights because its decision related directly

to defined and established professional standards, was

4 OYAMA V. UNIVERSITY OF HAWAII

narrowly tailored to serve the University’s core mission of

evaluating Oyama’s suitability for teaching, and reflected

reasonable professional judgment. In addition, because the

University provided adequate procedural protections in

denying Oyama’s application, neither it nor its agents

violated Oyama’s procedural due process rights. We

therefore affirm the district court’s grant of summary

judgment to the University.

I.

Mark Oyama earned an undergraduate degree in

mathematics from the California Institute of Technology,

followed by a Master’s Degree in physics from the University

of Hawaii. He then enrolled in the University of Hawaii’s

post-baccalaureate secondary education certification program

at Manoa.

A. Hawaii’s Post-Baccalaureate Certificate in Secondary

Education Program

Under Hawaii law, “[n]o person shall serve as a half-time

or full-time teacher in a public school without first having

obtained a license.” Haw. Rev. Stat. § 302A-805. The

purpose of teacher licensing, or certification, is to “ensure

that education professionals possess the appropriate training,

preparation, and competencies for teaching.” Univ. of Haw.

at Manoa, Secondary Teacher Education Program Handbook

26 (rev. 2009) (“Handbook”).

The University of Hawaii at Manoa is Hawaii’s only

nationally accredited institution that recommends students for

certification as secondary school teachers. Id. at i. The

University offers a Post-Baccalaureate Certificate in

OYAMA V. UNIVERSITY OF HAWAII 5

Secondary Education (PBCSE) Program (the “Program”) to

students who have bachelor’s degrees and wish to obtain

certification as secondary school teachers.1 According to the

Program’s handbook, the Program’s goal is “to employ and

prepare educators who are knowledgeable, effective, and

caring professionals.” Id. at 8. The “caring” component

seeks to “advanc[e] social justice and overcom[e] both

discrimination and oppression” and “requires a high level of

professionalism demonstrated through ethical behavior,

competence, reflection, fairness, respect for diversity, and a

commitment to inclusion and social responsibility.” Id. at

8–9. The Program’s requirements include coursework and

one semester of student teaching. Admission to the Program

does not guarantee admission to student teaching. Rather,

students must submit a Student Teaching Application and

must meet all student teaching requirements set forth in the

Program’s handbook. For example, a student teacher must

“[a]ct, speak, and dress like a teacher.”

The Program’s student teaching requirements reflect the

many regulations and policies governing admission to the

teaching profession in Hawaii. First, the University must

comply with the Hawaii Department of Education’s policies

and regulations. Pursuant to Department of Education Policy

No. 5600, for example, the University may approve

candidates for student teaching only “upon verification . . . of

their ability to function effectively in Department

classrooms.” Second, the University must comply with the

Hawaii Teacher Standards Board’s (HTSB) teacher licensing

1

The Program is a part of the College of Education at the University of

Hawaii at Manoa. For purposes of this appeal, it is not necessary to

distinguish between the College of Education and the University.

Accordingly, we refer to both as the “University.”

6 OYAMA V. UNIVERSITY OF HAWAII

and ethical standards. HTSB standards require teachers to,

among other things, protect student safety, create an inclusive

learning environment for all students, and demonstrate

professionalism. Finally, the University is required to uphold

the standards of its accrediting organization, the National

Council for Accreditation of Teacher Education (NCATE).

See Nat’l Council for Accreditation of Teacher Educ.,

Standards for Professional Development Schools 11 (2001)

(explaining that accredited institutions must “develop criteria

consistent with state and national standards for candidates’

admission to and completion of the preparation program and

make recommendations for candidate certification based on

the standards”).

B. Oyama’s Performance in the PBCSE Program

In the summer of 2010, Oyama enrolled in the

University’s PBCSE Program. Oyama began his coursework

and completed a field experience practicum at a local middle

school. During this period, several faculty members

separately contacted Program administrators to express their

concerns about Oyama’s suitability for the teaching

profession.

Oyama’s statements concerning sexual relationships

between adults and children were of central concern to the

faculty. While taking Dr. Ratliffe’s class on “Educational

Psychology: Adolescence and Education,” Oyama was

assigned to write a reflection about a video entitled “Growing

Up Online.” Oyama wrote:

Personally, I think that online child predation

should be legal, and find it ridiculous that one

could be arrested for comments they make on

OYAMA V. UNIVERSITY OF HAWAII 7

the Internet. I even think that real life child

predation should be legal, provided that the

child is consentual [sic]. Basically from my

point of view, the age of consent should be

either 0, or whatever age a child is when

puberty begins.

When Dr. Ratliffe discussed these statements with Oyama, he

said that “it would be fine” for a twelve-year-old student to

have a “consensual” relationship with a teacher. When Dr.

Ratliffe explained that state law would require Oyama to

report such conduct, Oyama stated that he would obey the

law and report the relationship, but still believed that such a

“consensual” relationship was not wrong. Dr. Ratliffe

contacted the Director of the Secondary Program, Dr. Moniz,

about these statements, explaining that, while she did not

“mind that [Oyama] has opinions that are different from other

people’s,” she was concerned that Oyama “may not be aware

of and in agreement with safety issues about the adolescents

who will be in his care.” She cautioned that, “because of his

lack of sensitivity to and empathy with others and lack of

self-awareness at this time, we should be very careful about

accepting him as a teacher candidate.”

Another concern stemmed from Oyama’s comments

about teaching students with disabilities. For example, in his

class on “Educating Exceptional Students in Regular

Classrooms – Secondary,” Oyama expressed the belief that

“if the disability is sufficiently severe and not of a physical

nature . . . there is little benefit to inclusion for the disabled

student” in the classroom environment. Oyama also wrote

that it is not reasonable to expect secondary school teachers

to have the “extremely diverse skillset” needed to teach the

range of grade levels presented in a mainstream classroom

8 OYAMA V. UNIVERSITY OF HAWAII

that includes students with learning disabilities. In another

assignment, Oyama asserted that nine of ten special education

students he encountered were “fakers” and explained that he

was “not convinced that many ‘disabilities’ are actual

disabilities or medically-based neurological conditions, but

are rather the crude opinions of psychologists and

psychiatrists.” Mr. Siegel, Oyama’s professor, informed Dr.

Moniz of his “serious concerns regarding Mark Oyama

entering the teaching profession.” Mr. Siegel also noted his

concern to Oyama, clarifying that his concern was “not based

on [Siegel’s] opinion,” but rather on legal standards and his

understanding, “based on [his] 43 years as an educator,” of

the criteria schools consider in evaluating prospective

teachers.2

Oyama’s performance in a field experience program at a

nearby middle school corroborated many of his professors’

concerns. In the Field Experience Evaluation Form, several

dispositions are listed, which are evaluated as “unacceptable,”

“acceptable,” or “target,” the highest rating.3 Oyama received

multiple ratings of “unacceptable” and no ratings of “target.”

In the accompanying Observation/Participation Evaluation,

Oyama received an “unacceptable” rating as to the ability to

2

Oyama made several other statements that concerned his professors

and which they relayed to Dr. Moniz. One professor expressed concern

that Oyama said that “he thinks about suicide every day.” Professors also

criticized Oyama’s teaching style, his inability to work collaboratively

with others, and his unwillingness to accept suggestions from his

colleagues and supervisors.

3

The evaluation form states that “candidates should demonstrate overall

ratings of ‘acceptable’ or ‘target’ by the end of the field experience;

ratings of ‘unacceptable’ may require a Plan of Assistance and/or

result in a failing grade” (emphasis and bold in original).

OYAMA V. UNIVERSITY OF HAWAII 9

teach effectively, work collaboratively with colleagues,

respond to suggestions from supervisors, and demonstrate the

level of professionalism expected of middle school teachers.

Oyama’s supervising instructor, Dr. Irv King, concluded,

“My overall impression is that Mark would not do well as a

middle school teacher.”

C. Denial of Admission to the Student Teaching Program

In January 2011, Oyama applied to the PBCSE Student

Teaching Program. In a letter dated July 8, 2011, Dr. Moniz

informed Oyama his application had been denied. While

noting that Oyama had clearly met the “minimum” academic

requirements, Dr. Moniz explained the University’s “duty,”

pursuant to Department of Education Policy No. 5600, to

“verify your overall ability to function effectively as a teacher

in a Hawaii Department of Education school.” Dr. Moniz

noted that a “number of factors raised the College of

Education’s concern,” specifying several bases for the

University’s decision. He explained:

[T]he views you have expressed regarding

students with disabilities and the

appropriateness of sexual relations with

minors were deemed not in alignment with

standards set by the Hawaii Department of

Education, the National Council for the

Accreditation of Teachers (NCATE) and the

Hawaii Teacher Standards Board (HTSB).

Dr. Moniz further explained that Oyama’s “endorsement of

sexual relationship[s] between adults and minors, as well as

between teachers and students” was in tension with Hawaii

Department of Education rules expressly prohibiting sexual

10 OYAMA V. UNIVERSITY OF HAWAII

contact between teachers and students or minors, see Haw.

Admin. Rules, § 8-54-9, and with the HTSB’s requirement

that teachers protect students’ safety, see HTSB Code of

Ethics, Principle I. In sum, Dr. Moniz found that Oyama’s

understanding of sexual relationships between adults and

minors, as well as between teachers and students, was

contrary to the “legal and ethical guidelines imposed by the

State.” Dr. Moniz wrote that “[s]uch a matter is serious

enough in nature that, taken alone, [it] warrants a denial of

you [sic] student teaching application” (emphasis added).

Dr. Moniz added, however, that “other issues . . . support

the denial of your application.” He recounted several

comments by Oyama that “demonstrated a lack of empathy

and understanding of students with disabilities.” He noted

that these comments, “along with your professor’s assessment

that you have been unable to demonstrate any sort of

willingness to accommodate students with disabilities,” were

“in opposition” to HTSB and NCATE standards. Dr. Moniz

specifically discussed the inconsistency between, for

example, Oyama’s expressed view that “if a disability is

sufficiently severe and not of a physical nature . . . there is

little benefit to inclusion for the disabled student” and both an

HTSB standard requiring teachers to “[p]rovide services to

students in a nondiscriminatory manner” and an NCATE

standard requiring teachers to demonstrate professional

dispositions necessary to teach “all students,” including those

“with exceptionalities.” Oyama had therefore been unable to

demonstrate the requisite Professional Disposition to enter the

teaching profession.

Finally, citing the HTSB’s “right to deny licensing to

teachers who exhibit any behavior that is [in] opposition to

the standards and ethics imposed by the State,” Dr. Moniz

OYAMA V. UNIVERSITY OF HAWAII 11

noted the “unacceptable” ratings in Oyama’s field experience

evaluation, which corroborated Oyama’s professors’

concerns. Dr. Moniz concluded, “[W]e are not able to verify

your overall ability to function effectively in a school

setting. . . . At this time, we do not feel that you meet basic

HTSB standards or standards for the profession set by our

accreditors.”

D. Oyama’s Administrative Appeal

Oyama first responded to Dr. Moniz’s denial letter in a

July 18, 2011 letter to Dr. Moniz and the Academic

Grievance Committee seeking “an amicable remedy.” While

disputing Dr. Moniz’s conclusions based on his statements,

Oyama noted that any statements he had made were “in an

academic, intellectual setting.” He argued that the University

had violated his right of free speech and violated its own rules

by failing to give him timely notice and not obtaining his

signature on the field evaluation form. Nevertheless, Oyama

proposed that the College of Education refund all tuition

payments in exchange for his forfeiting all “credits and/or

grades,” and he would not become a classroom teacher. Dr.

Moniz rejected this offer and advised Oyama of his “right to

appeal in writing via the Office of the Dean of Students.”

Oyama next timely appealed the denial of his student

teaching application by filing an academic grievance

complaint with the Dean of the College of Education,

Christine Sorensen. Dean Sorensen reviewed the decision

and convened a three-person committee, including officials

from within and outside the College of Education, to

investigate and review Oyama’s academic grievance

complaint. The committee interviewed Oyama and three

professors of Oyama’s choice.

12 OYAMA V. UNIVERSITY OF HAWAII

On November 17, 2011, the grievance committee issued

its report and findings to Dean Sorensen for her

consideration. The report concluded that Oyama “should not

be allowed to student teach since dispositions as well as

comments and statements made during classes and our

interview are serious matters of concern.” It also found that

the University committed “two violations” of its own

procedures: it failed to timely notify Oyama of the standards

for advancement in the academic program, and it failed to

provide Oyama with his field experience evaluations.

In a letter dated December 15, 2011, Dean Sorensen

informed Oyama of her final decision. Citing “the standards

approved by the state for Hawaii’s teachers and the NCATE

standards under which the licensing programs operate,” Dean

Sorensen concluded that (i) the department had provided a

proper basis for rejecting Oyama’s application to student

teach; (ii) the University provided Oyama notice of the

applicable standards in the Program’s handbook and other

documents; and (iii) the University should have notified

Oyama about its “dispositional concerns” in a timely manner

to allow him to make an informed decision about his future

in the program and avoid incurring additional expenses.

Dean Sorensen accordingly proposed reimbursing Oyama for

certain expenses and allowing him to withdraw from certain

courses, on the condition that Oyama release all claims

related to his participation in the program.4 Dean Sorensen

4

We note that the University’s failure to give Oyama timely notice of

its concerns does not affect the ultimate validity of its conclusions.

Although Dean Sorensen’s offer indicates that the violation of the

University’s regulations may have supported monetary relief based on

Oyama’s reliance, that issue is not relevant to this case, which concerns

only Oyama’s First Amendment and procedural Due Process rights.

OYAMA V. UNIVERSITY OF HAWAII 13

emphasized the University’s “responsibility to ensure that

candidates in the state-approved teacher education program

meet all standards and to recommend an individual to the

licensing agency only when we feel a candidate meets these

expectations.”

E. District Court Proceedings

Oyama rejected that offer. Instead, he filed a complaint

against the University of Hawaii and university officials

alleging violations of the First Amendment and the Due

Process Clause of the Fourteenth Amendment.5

Granting the University’s motion for summary judgment,

the district court concluded that because the individual

defendants6 did not violate Oyama’s First and Fourteenth

Amendment rights, the individual defendants were entitled to

qualified immunity.7 To analyze Oyama’s First Amendment

claim, the district court relied upon student speech cases,

5

Oyama’s complaint named as defendants the University of Hawaii,

Sorensen, and Moniz. For purposes of this appeal, we refer to all

Defendants-Appellees as the “University.” Oyama’s complaint also

alleged violations of state law and substantive due process. The district

court rejected those claims, and Oyama does not appeal those rulings.

6

The district court granted summary judgment to the University based

on the Eleventh Amendment doctrine of sovereign immunity. Oyama did

not appeal that determination.

7

The district court also determined that because Sorensen and Moniz did

not violate Oyama’s constitutional rights, they were entitled to qualified

immunity. The University has not asserted a qualified immunity defense

on appeal. At oral argument, the University expressly urged the panel not

to consider qualified immunity. Accordingly, we do not reach the issue

of qualified immunity.

14 OYAMA V. UNIVERSITY OF HAWAII

including the Supreme Court’s decision in Hazelwood School

District v. Kuhlmeier, 484 U.S. 260 (1988), and Judge

Graber’s opinion in Brown v. Li, 308 F.3d 939 (9th Cir.

2002), which extended Hazelwood to the university setting.8

Applying these cases, the district court concluded that

University administrators had made an “academic decision

based on professional judgment” that “was reasonably related

to a legitimate pedagogical purpose – meeting the Hawaii and

National teacher standards.” Echoing Judge Graber’s

statement that “the First Amendment does not require an

educator to change the assignment to suit the student’s

opinion or to approve the work of a student that, in his or her

judgment, fails to meet a legitimate academic standard,”

Brown, 308 F.3d at 949, the district court reasoned that the

“First Amendment does not require Defendants to accept

Plaintiff in a student teaching program if in their judgment he

did not meet State and National teaching standards.” The

district court also concluded that the “University afforded

[Oyama] adequate procedural due process.” Oyama timely

appeals.

II.

“We review the district court’s grant of summary

judgment de novo.” Nigro v. Sears, Roebuck & Co., 784 F.3d

495, 497 (9th Cir. 2015). “[W]e may affirm based on any

ground supported by the record.” Johnson v. Riverside

Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008).

8

The portion of Judge Graber’s opinion in Brown applying Hazelwood

in the university setting did not command a majority of the panel.

OYAMA V. UNIVERSITY OF HAWAII 15

III.

A. First Amendment Claim

Oyama argues that the University’s decision to deny his

student teaching application violated his First Amendment

right to freedom of speech. Oyama equivocates, however, on

the question of which First Amendment doctrine applies to

his claim. Oyama first characterizes the University’s decision

as “retaliation for [his] personal opinions,” a characterization

evocative of the public employee speech doctrine first

recognized in Pickering v. Board of Education, 391 U.S. 563

(1968). See id. at 568 (addressing the “balance between the

interests of the teacher, as a citizen, in commenting upon

matters of public concern and the interest of the State, as an

employer, in promoting the efficiency of the public services

it performs through its employees”). Oyama then invokes

student speech doctrine, quoting the Supreme Court’s classic

observation that students do not “shed their constitutional

rights to freedom of speech or expression at the schoolhouse

gate.” Tinker v. Des Moines Cmty. Sch. Dist., 393 U.S. 503,

506 (1969).

We understand the hybrid nature of Oyama’s First

Amendment claim. On the one hand, Oyama was a student

in an academic setting. On the other hand, Oyama was a

candidate for a certification that would allow him to work as

a public school teacher. Oyama’s claim defies easy

categorization because his position at the University

combined the characteristics of both a student and a public

employee.

In light of the mixed characteristics of Oyama’s claim, we

address the applicability of both student speech and public

16 OYAMA V. UNIVERSITY OF HAWAII

employee speech doctrines. While both doctrines illuminate

certain principles that guide our analysis, we conclude that

neither, standing alone, provides an adequate framework for

evaluating Oyama’s claim. Drawing from both student

speech and public employee speech doctrines and from the

few decisions of other courts that have confronted free speech

claims in the certification context, we conclude that the

University did not violate Oyama’s First Amendment rights

because its decision 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.

1. Student Speech Doctrine

Because Oyama was a student when the University denied

his student teaching application, we begin by examining the

Supreme Court’s student speech jurisprudence. As Oyama

correctly notes, it is “clear that students do not ‘shed their

constitutional rights to freedom of speech or expression at the

schoolhouse gate.’” Morse v. Frederick, 551 U.S. 393, 396

(2007) (quoting Tinker, 393 U.S. at 506). At the same time,

however, “[a] school need not tolerate student speech that is

inconsistent with its ‘basic educational mission,’ even though

the government could not censor similar speech outside the

school.” Hazelwood, 484 U.S. at 266 (citation omitted)

(quoting Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675,

685 (1986)).

In the seminal student speech case, Tinker, the Court held

that a high school may not suppress its students’ speech

unless school officials reasonably conclude that it will

“materially and substantially disrupt the work and discipline

OYAMA V. UNIVERSITY OF HAWAII 17

of the school.” 393 U.S. at 513. Tinker involved a group of

students who wore black armbands to school in protest of the

Vietnam War. 393 U.S. at 504. The Court held that neither

the high school’s “mere desire to avoid the discomfort and

unpleasantness that always accompany an unpopular

viewpoint,” nor its “urgent wish to avoid the controversy

which might result from the expression” was sufficient to

justify a ban on the students’ “silent, passive expression of

opinion, unaccompanied by any disorder or disturbance.” Id.

at 508–10.

Since Tinker, however, the Court has identified several

circumstances in which a high school may restrict its

students’ speech. In Fraser, the Court held that a school

district “acted entirely within its permissible authority” in

suspending a high school student for “giving a lewd speech

at a school assembly.” 478 U.S. at 677, 685. In Hazelwood,

the Court held that high school officials may delete

potentially inappropriate material from a student newspaper

“so long as their actions are reasonably related to legitimate

pedagogical concerns.” 484 U.S. at 273. Most recently, in

Morse, the Court allowed the suspension of a student who

held up a banner reading “BONG HiTS 4 JESUS” as the

Olympic torch passed by, reasoning that “schools may take

steps to safeguard those entrusted to their care from speech

that can reasonably be regarded as encouraging illegal drug

use.” 551 U.S. at 397. All of these cases involved the speech

of high school students at school or school-sanctioned events.

Beyond that context, “the Court has noted only that ‘[t]here

is some uncertainty at the outer boundaries as to when courts

should apply school speech precedents.’” Wynar v. Douglas

Cty. Sch. Dist., 728 F.3d 1062, 1067 (9th Cir. 2013)

(alteration in original) (quoting Morse, 551 U.S. at 401).

18 OYAMA V. UNIVERSITY OF HAWAII

The district court evaluated Oyama’s claim within the

student speech framework and rejected it under Hazelwood,

finding that the University’s action was reasonably related to

legitimate pedagogical concerns. Student speech doctrine

does identify certain principles that inform our analysis here.

First, the Court’s student speech precedents recognize, to

some extent, an institutional rationale for a school’s decision

to regulate its students’ speech. In Morse, for example, the

Court held that a high school could confiscate the “BONG

HiTS 4 JESUS” banner and suspend the student who held it

because of the school’s congressional mandate to prevent

illegal drug use among its students. See 551 U.S. at 408. In

this case, the University similarly bears an institutional

responsibility: under state policy and national accreditation

standards, it must limit certification recommendations to

individuals suitable to enter the teaching profession. This

institutional responsibility, like the “governmental interest in

stopping student drug abuse” in Morse, may allow the

University to deny a student teaching application based on

speech demonstrating that the applicant lacks the professional

skills and disposition to enter a classroom, even as a student

teacher. Id.

Second, student speech doctrine recognizes a school’s

interest in managing how it “lend[s] its name” or its

“imprimatur” to student expression. Hazelwood, 484 U.S. at

271–72. Here, this “imprimatur” concept resonates not

because the views of a certification candidate may be

“erroneously attributed to the school,” id. at 271, but rather

because the act of certification forces the university to speak.

When the University recommends a student for certification,

it communicates to the world that, in its view, that student is

fit to practice the profession; as a result, the University places

its “imprimatur” on each student it approves to teach. The

OYAMA V. UNIVERSITY OF HAWAII 19

consequences of that “imprimatur” are substantial. With the

University’s recommendation, a candidate is eligible to apply

for a state teaching license and, so long as he or she satisfies

other minimal requirements, to enter the classroom. Because

the certification process necessarily implicates the

University’s “imprimatur,” the University is entitled to

deference in determining how to “lend its name” to

certification candidates. Id. at 272.

While aspects of student speech doctrine are relevant

here, the Supreme Court has yet to extend this doctrine to the

public university setting. See id. at 273 n.7 (expressly

reserving the question of “whether the same degree of

deference is appropriate with respect to school-sponsored

expressive activities at the college and university level”). In

the twenty-seven years since Hazelwood, we too have

declined to apply its deferential standard in the university

setting. In Brown, which involved a university’s decision not

to approve a graduate student’s thesis because it contained an

unprofessional “Disacknowledgements” section, Judge

Graber concluded that Hazelwood “appears to be the most

analogous” Supreme Court case and “provides a workable

standard for evaluating a university student’s claim stemming

from curricular speech.” 308 F.3d at 951–52. But Judge

Graber’s approach failed to command a majority of the

Brown panel. See id. at 955–56 (Ferguson, J., concurring)

(agreeing that Brown’s First Amendment claim fails, but not

for the reasons expressed by Judge Graber); id. at 960

(Reinhardt, J., concurring in part and dissenting in part)

(“vehemently disagree[ing] with Judge Graber’s conclusion

that Hazelwood provides the appropriate First Amendment

standard for college and graduate student speech”). Nor has

Judge Graber’s reasoning been adopted by our precedents

since. See, e.g., Flint v. Dennison, 488 F.3d 816, 829 n.9 (9th

20 OYAMA V. UNIVERSITY OF HAWAII

Cir. 2007) (“[W]e need not consider whether the principles of

Hazelwood . . . apply with full force in a university setting—a

question neither we nor the Supreme Court have definitively

answered.” (citations omitted)). “Our sister circuits are split

on the question” of whether Hazelwood applies in the

university setting. Id. at 829 n.9.9

This case presents no occasion to extend student speech

doctrine to the university setting. Under that doctrine, the key

rationales for restricting students’ speech are to ensure that

students “are not exposed to material that may be

inappropriate for their level of maturity” and “learn whatever

lessons the activity is designed to teach.” Hazelwood,

484 U.S. at 271. Neither of these rationales is relevant here.

Concerns about student maturity cannot justify restrictions on

speech in this context because certification candidates are

adults; indeed, a prerequisite for enrollment in the Program is

graduation from a four-year institution of higher education.

See Widmar v. Vincent, 454 U.S. 263, 274 n.14 (1981)

(explaining that “[u]niversity students” are “young adults”

and “are less impressionable than younger students.”);

McCauley v. Univ. of the V.I., 618 F.3d 232, 246 (3d Cir.

9

Compare, e.g., Ward v. Polite, 667 F.3d 727, 733–34 (6th Cir. 2012)

(“Nothing in Hazelwood suggests a stop-go distinction between student

speech at the high school and university levels, and we decline to create

one.”), Keeton v. Anderson-Wiley, 664 F.3d 865, 875 (11th Cir. 2011)

(applying Hazelwood in university setting), Hosty v. Carter, 412 F.3d 731,

735 (7th Cir. 2005) (en banc) (“We hold . . . that Hazelwood’s framework

applies to subsidized student newspapers at colleges as well as elementary

and secondary schools.”), and Axson-Flynn v. Johnson, 356 F.3d 1277,

1285, 1289–93 (10th Cir. 2004) (concluding that a graduate student’s

speech “constitutes ‘school-sponsored speech’ and is thus governed by

Hazelwood”), with Student Gov’t Ass’n v. Bd. of Trs. of Univ. of Mass.,

868 F.2d 473, 480 n.6 (1st Cir. 1989) (“Hazelwood . . . is not applicable

to college newspapers.”).

OYAMA V. UNIVERSITY OF HAWAII 21

2010) (“Considerations of maturity are not nearly as

important for university students, most of whom are already

over the age of 18 and entrusted with a panoply of rights and

responsibilities as legal adults.”). Nor do “pedagogical

concerns” explain why the University denied Oyama’s

application on the basis of his speech. Hazelwood, 484 U.S.

at 273. The University’s purpose was not to teach Oyama

any lesson; rather, it was to fulfill the University’s own

mandate of limiting certification recommendations to

students who meet the standards for the teaching profession.

Hawaii entrusts the University with the task of verifying a

candidate’s ability to “function effectively” as an educator in

public schools. This institutional responsibility, and not the

“pedagogical concerns” of student speech doctrine, is the

reason that the University evaluated or “regulated” Oyama’s

speech. Therefore, student speech doctrine does not

adequately address the governmental purposes at stake in this

context.

Furthermore, student speech doctrine fails to account for

the vital importance of academic freedom at public colleges

and universities. As the Supreme Court has explained,

The essentiality of freedom in the community

of American universities is almost

self-evident. . . . To impose any strait jacket

upon the intellectual leaders in our colleges

and universities would imperil the future of

our Nation. . . . Teachers and students must

always remain free to inquire, to study and to

evaluate, to gain new maturity and

understanding; otherwise our civilization will

stagnate and die.

22 OYAMA V. UNIVERSITY OF HAWAII

Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957); see

also Rodriguez v. Maricopa Cty. Cmty. Coll. Dist., 605 F.3d

703, 708 (9th Cir. 2010). The importance of academic

freedom at a public university does not disappear when one

walks down the hall from a political philosophy seminar to a

professional certification program like the University of

Hawaii’s. Indeed, the progress of our professions, including

secondary education, may depend upon the “discord and

dissent” of students training to enter them: it is by

challenging the inherited wisdom of their respective fields

that the next generation of professionals may develop

solutions to the problems that vexed their predecessors.

Rodriguez, 605 F.3d at 708. Thus, our analysis of Oyama’s

claim would be constitutionally deficient if it did not reflect

the “special niche” universities occupy “in our constitutional

tradition.” Grutter v. Bollinger, 539 U.S. 306, 329 (2003).

The Court’s student speech cases provide no basis for doing

so.10

2. Public Employee Speech Doctrine

Oyama alternatively suggests that the University’s denial

of his student teaching application was analogous to an

employer’s act of retaliation, which is governed by Pickering

and its progeny. Pickering “requires a court evaluating

restraints on a public employee’s speech to balance ‘the

interests of the [employee], as a citizen, in commenting upon

matters of public concern and the interest of the State, as an

employer, in promoting the efficiency of the public services

10

In determining that Hazelwood does not provide the appropriate

framework for evaluating a First Amendment claim such as Oyama’s, we

need not and do not decide whether the Hazelwood standard can ever

apply in the context of student speech at the college and university level.

OYAMA V. UNIVERSITY OF HAWAII 23

it performs through its employees.’” City of San Diego v.

Roe, 543 U.S. 77, 82 (2004) (per curiam) (alteration in

original) (quoting Pickering, 391 U.S. at 568). “In unraveling

the case law since Pickering, we have further refined the

Court’s balancing test into a five-step inquiry.” Dahlia v.

Rodriguez, 735 F.3d 1060, 1067 (9th Cir. 2013) (en banc).

We ask:

(1) whether the plaintiff spoke on a matter of

public concern; (2) whether the plaintiff spoke

as a private citizen or public employee;

(3) whether the plaintiff’s protected speech

was a substantial or motivating factor in the

adverse employment action; (4) whether the

state had an adequate justification for treating

the employee differently from other members

of the general public; and (5) whether the state

would have taken the adverse employment

action even absent the protected speech.

Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009).11 The

11

In Demers v. Austin, 746 F.3d 402 (9th Cir. 2014), we declined to

extend the Supreme Court’s reasoning in Garcetti v. Ceballos, 547 U.S.

410 (2006), which held that the First Amendment does not protect

statements made by public employees “pursuant to their official duties,”

547 U.S. at 421, to public employee speech “related to scholarship or

teaching.” Demers, 746 F.3d at 406 (quoting Garcetti, 547 U.S. at 425).

Demers applied Pickering and Connick, see id. at 412–13, then remanded

to the district court to consider, “as appropriate,” whether “defendants had

a sufficient interest in controlling or sanctioning [plaintiff’s speech] to

deprive it of its First Amendment protection,” whether the plaintiff’s

speech was “a substantial or motivating factor in any adverse employment

action,” and “whether defendants would have taken such adverse

employment action absent the protected speech,” id. at 417. Here, because

we consider how public employee speech doctrine may, as a general

24 OYAMA V. UNIVERSITY OF HAWAII

Pickering framework “give[s] [public] employers wide

discretion and control over the management of their personnel

and internal affairs,” Nichols v. Dancer, 657 F.3d 929, 933

(9th Cir. 2011) (internal citation and quotation marks

omitted), and mandates “substantial deference . . . to the

government’s reasonable view of its legitimate interests,” Bd.

of Cty. Comm’rs v. Umbehr, 518 U.S. 668, 678 (1996).

More explicitly than student speech doctrine, public

employee speech doctrine clarifies the University’s rationale

for regulating Oyama’s speech: like a government employer,

the University must “protect its own legitimate interests in

performing its mission” of limiting teacher certification to

qualified professionals. Johnson v. Poway Unified Sch. Dist.,

658 F.3d 954, 961 (9th Cir. 2011) (quoting Roe, 543 U.S. at

82). “The Pickering balance requires full consideration of the

government’s interest in the effective and efficient fulfillment

of its responsibilities to the public.” Connick v. Myers, 461

U.S. 138, 150 (1983). The Court has explained that because

“[g]overnment agencies are charged by law with doing

particular tasks,” the government’s “interest in achieving its

goals as effectively and efficiently as possible is elevated

from a relatively subordinate interest when it acts as

sovereign to a significant one when it acts as employer.”

Waters v. Churchill, 511 U.S. 661, 674–75 (1994). In its

certification role, the University, like a government employer,

is “charged by law” with a “particular task”—here, that of

ensuring that licensed teachers have “the appropriate training,

preparation, and competencies for teaching.” Id. As the

public employee speech cases recognize, the University may

constitutionally evaluate or restrict the candidate’s speech to

matter, facilitate our evaluation of Oyama’s claim, we need not address

the interaction between Demers and Eng’s “five-step inquiry.”

OYAMA V. UNIVERSITY OF HAWAII 25

fulfill its responsibilities to the public and to achieve its

institutional objectives.

Further, cases addressing the claims of public teachers

provide a wealth of wisdom about the standards to which

teachers and school officials are held. For example, in Melzer

v. Board of Education, 336 F.3d 185 (2d Cir. 2003), a teacher

was an active member of NAMBLA, whose stated goal was

to change the laws and attitudes governing sexual activity

between men and boys. When his membership became

public, many parents and students were outraged. Id. at

189–92, 199. The Second Circuit affirmed the school’s

termination of the teacher, concluding that the disruption

likely to result from his continued employment would

“interrupt[] the children’s education, impair[] the school’s

reputation, and impair[] educationally desirable

interdependency and cooperation among parents, teachers,

and administrators.” Id. at 199. Similarly, in Craig v. Rich

Township High School District 227, 736 F.3d 1110 (7th Cir.

2013), a high school guidance counselor wrote a book entitled

“It’s Her Fault,” which, among other things, urged women to

engage in “a certain level of promiscuity before marriage”

and delved “into a comparative analysis of the female

genitalia of various races.” Id. at 1114. The Seventh Circuit

upheld the school’s termination of the counselor, concluding

that the counseling position required the employee to

“maintain a safe space for his students in order to ensure they

remain[ed] willing to come to him for advice,” and that

without that environment, the students would “not approach

him” and he could not “do his job.” Id. at 1119–20. The

similarities between the circumstances at issue in these cases

and those presented here make public employee speech

doctrine an attractive means of analysis for Oyama’s First

Amendment claim.

26 OYAMA V. UNIVERSITY OF HAWAII

However useful public employee speech doctrine may

appear, however, it cannot control our analysis of Oyama’s

First Amendment claim. The first and most basic problem is

that Oyama was not a government employee. In fact, Oyama

was two steps removed from government employment: he

was an applicant to a university program that could, in turn,

permit him to teach at a secondary school under the

supervision of a mentor teacher. Even then, only if Oyama

satisfactorily performed as a student teacher, and met other

requirements, would the University recommend him for

certification and actual employment by the state.

Characterizing Oyama as a public employee for First

Amendment purposes would thus require us to extend this

doctrine to those who do not yet work for the government but

may wish to do so—a move we have not yet made. See

Johnson, 658 F.3d at 962 (explaining that when a First

Amendment plaintiff is not a government employee,

“Pickering’s absence [is] not only unsurprising, but

necessary”).12 Given Oyama’s status as a student and the

attenuated nature of his relationship to government

employment, this appeal makes a poor candidate for taking

such a fateful step.

The second problem, as with student speech doctrine, is

that public employee speech doctrine provides no basis for

12

Other circuits have applied public employee speech doctrine in the job

applicant setting. See, e.g., Worrell v. Henry, 219 F.3d 1197, 1207 (10th

Cir. 2000) (applying Pickering to the withdrawal of an offer of

employment after the employer discovered the employee’s past speech

activity); Bonds v. Milwaukee Cty., 207 F.3d 969, 979 (7th Cir. 2000)

(applying Pickering analysis to a First Amendment retaliation claim of

someone seeking public employment); Hubbard v. EPA, 949 F.2d 453,

460 (D.C. Cir. 1992) (applying Pickering to a hiring decision). What we

have here, however, is not precisely a job applicant situation either.

OYAMA V. UNIVERSITY OF HAWAII 27

considering the role of academic freedom at public

universities. Public employee speech doctrine permits the

government to regulate speech that might limit the

“efficiency” of its operations, Pickering, 391 U.S. at 568; it

does not require the government to promote, or even

consider, its employees’ freedom “to inquire, to study and to

evaluate, to gain new maturity and understanding,” Sweezy,

354 U.S. at 250. 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. To

hold Oyama to the same standard as we hold public

employees would deprive him of rights the First Amendment

guarantees him as a public university student.13

3. The Certification Cases

A third framework for analysis more aptly suits Oyama’s

claim: a set of decisions of other courts that have considered

free speech claims in the “certification” context. See

generally Emily Gold Waldman, University Imprimaturs on

Student Speech: The Certification Cases, 11 First Amend. L.

Rev. 382 (2013). 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. Though these cases are analyzed under

different First Amendment doctrines, their substance echoes

13

In part due to considerations of academic freedom, we have declined

to extend Garcetti to the context of public school teachers. See supra note

11. Even absent Garcetti’s additional level of deference to public

employers, however, public employee speech doctrine’s “substantial

deference” to the “government’s reasonable view of its legitimate

interests” fails to provide the protection to which a student at a public

university is entitled. Umbehr, 518 U.S. at 678.

28 OYAMA V. UNIVERSITY OF HAWAII

a common theme—the upshot is some deference to the

certifying institution, but with significant limitations.

Courts generally defer to certification decisions based on

defined professional standards. In Keeton v. Anderson-Wiley,

664 F.3d 865 (11th Cir. 2011), for example, the Eleventh

Circuit applied Hazelwood to uphold a university’s decision

to sanction a student in a graduate-level school counseling

program for stating that she “intended to attempt to convert

students from being homosexual to heterosexual.” Id. at 868.

The university concluded that these statements implied a

course of conduct that would “violate several provisions of

the American Counseling Association’s (ACA) Code of

Ethics,” which the university “must adopt and follow . . . in

order to offer an accredited program.” Id. at 869, 876.

Similarly, in Hennessy v. City of Melrose, 194 F.3d 237 (1st

Cir. 1999), the First Circuit applied Pickering to uphold the

termination of a student teacher for repeatedly interrupting

school events with religious “proselytizing,” such as showing

a picture of an aborted fetus to another teacher and storming

out of a presentation on art that he considered “obscene.” Id.

at 242–43. The First Circuit noted that the candidate’s

religious outbursts were incompatible with general

professional standards for preserving collegiality and respect

in the school and, more specifically, with four “common

teaching competencies” required for state certification. Id. at

243, 247.

By contrast, courts are more reluctant to defer to

certification decisions based on officials’ personal

disagreement with a student’s views. In Ward v. Polite,

667 F.3d 727 (6th Cir. 2012), for example, the Sixth Circuit,

applying Hazelwood, ruled in favor of a student expelled

from a counseling degree program for asking her supervisor

OYAMA V. UNIVERSITY OF HAWAII 29

to refer a gay client to another student counselor. Unlike in

Keeton or Hennessy, the university’s decision appeared to rest

on officials’ personal views, not on professional standards,

which instead supported the “values-based referral[]” the

student requested. Id. at 735. In Axson-Flynn v. Johnson,

356 F.3d 1277 (10th Cir. 2004), the Tenth Circuit adopted a

similar methodology to evaluate the First Amendment claim

of a Mormon student who withdrew from the University of

Utah’s actor training program after faculty members faulted

her for refusing to use obscene language in theatrical

performances. The university cited professional acting

standards to justify its decision, but record evidence showed

that faculty members had expressed their personal

disapproval of the student’s interest in being a “good

Mormon girl[].” Id. at 1292–93. The Tenth Circuit held that

the university was not entitled to summary judgment because

there was a genuine issue of material fact “as to whether [the

university’s] justification . . . was truly pedagogical or

whether it was a pretext for religious discrimination.” Id. at

1293.14 Thus, while 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.

14

See also Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1292–94 (11th Cir.

2007) (applying public employee speech doctrine to the claim of a student

enrolled in a graduate-level social work program and terminated from a

student practicum at a psychiatric institute for failing to demonstrate the

“professional conduct” required of social workers); Tatro v. Univ. of

Minn., 816 N.W.2d 509, 520–21 (Minn. 2012) (articulating a new test to

uphold a university’s decision to sanction a mortuary sciences student for

violating a student code of professional conduct and professional

standards for funeral service education).

30 OYAMA V. UNIVERSITY OF HAWAII

4. Application

Drawing from the Supreme Court’s student speech and

public employee speech precedents and from the decisions of

other courts in the certification context, we hold that the

University of Hawaii’s decision to deny Oyama’s student

teaching application did not offend the First Amendment

because it related directly to defined and established

professional standards, was narrowly tailored to serve the

University’s foundational mission of evaluating Oyama’s

suitability for teaching, and reflected reasonable professional

judgment.

(i) Directly Related to Defined and Established

Professional Standards

The University’s decision was directly related to defined

and established professional standards. Two sets of

professional standards provided the foundation for the

University’s decision: one governing sexual relationships

with children and another governing the education of disabled

students. Oyama stated that “it would be fine” for “a 12-year-

old girl” to have a “consensual” relationship with her teacher,

that “the age of consent should be either 0, or whatever age

a child is when puberty begins,” and that “real life child

predation should be legal.” As the University explained to

Oyama, however, Hawaii Department of Education Rules

prohibit sexual contact between teachers and students or

minors. See Haw. Admin. Rules, § 8-54-9. Furthermore, the

HTSB requires all teachers to “take all reasonable

precautions” to protect student safety. See HTSB Code of

Ethics, Principle I. To protect a student’s “safety,” a

secondary school teacher must protect underage students

from sexual contact with adults, which may qualify as

OYAMA V. UNIVERSITY OF HAWAII 31

first-degree sexual assault under Hawaii law. See Haw. Rev.

Stat. § 707-730.

These standards are established not only in Hawaii but

also at a national level. According to one study, the

sexual-assault laws of over half the states address sexual

relationships between educators and students. See Caroline

Hendrie, States Target Sexual Abuse by Educators, Educ.

Wk., Apr. 30, 2003. Many states also require school teachers

to report suspected sexual abuse of their students. See Jason

P. Nance & Philip T.K. Daniel, Protecting Students from

Abuse: Public School District Liability for Student Sexual

Abuse Under State Child Abuse Reporting Laws, 36 J.L. &

Educ. 33, 35 (2007). The Department of Education has

specifically identified “state educator certification

regulations” as a means to combat the problem of sexual

abuse of children. See U.S. Dep’t of Educ., Educator Sexual

Misconduct: A Synthesis of Existing Literature 50 (2004).

The University’s decision was also directly related to

defined and established professional standards for teaching

students with disabilities. Oyama characterized special

education students as “fakers,” asserted that it is not

reasonable to expect secondary school teachers to teach “the

students with learning disabilities,” and voiced his opposition

to the goal of “inclusion for the disabled student.” As the

university explained, however, its national accreditation body

mandates that student teachers demonstrate “professional

dispositions necessary to help all students learn,” including

students with disabilities. See also Professional Development

Schools, supra, at 25 (explaining that accredited programs

must “reflect issues of equity and access to knowledge by

diverse learners”). Moreover, the HTSB requires all student

teachers to “[p]rovide services to students in a

32 OYAMA V. UNIVERSITY OF HAWAII

nondiscriminatory manner” and “[a]dapt[] instruction to

students’ differences in development, learning styles,

strengths and needs.” Finally, the public schools of every

state must comply with the Individuals with Disabilities

Education Act (IDEA), which entitles all disabled children to

a free public education tailored to their needs. See K.D. ex

rel. C.L. v. Dep’t of Educ., 665 F.3d 1110, 1114 (9th Cir.

2011) (citing Pub. L. 101-476, 84 Stat. 175 (1990), codified

at 20 U.S.C. § 1400 et seq.). The IDEA ensures that

“disabled children will be integrated into society and enhance

their personal well-being and their important societal

contributions.” JG v. Douglas Cty. Sch. Dist., 552 F.3d 786,

793 (9th Cir. 2008). The University correctly identified the

clear tension between these standards and Oyama’s

statements.

The First Amendment does not prevent the University

from denying Oyama’s student teaching application after

determining that his statements reflected a failure to absorb

these defined and established professional standards. Both

student speech and public employee speech doctrine

recognize that the scope of the government’s authority to

regulate speech within its institutions depends upon the

objectives those institutions are designed to achieve. See,

e.g., Fraser, 478 U.S. at 685 (explaining that a high school

may regulate speech that “would undermine the school’s

basic educational mission”); Roe, 543 U.S. at 82 (explaining

that a public employer may regulate speech to “protect its

own legitimate interests in performing its mission”); Connick,

461 U.S. at 150–51 (“The Pickering balance requires full

consideration of the government’s interest in the effective and

OYAMA V. UNIVERSITY OF HAWAII 33

efficient fulfillment of its responsibilities to the public.”).15

Here, the people of Hawaii enacted a law providing that “[n]o

person shall serve as a half-time or full-time teacher in a

public school without first having obtained a license.” Haw.

Rev. Stat. § 302A-805. Hawaii thus established a

certification program at the University of Hawaii to “ensure

that education professionals possess the appropriate training,

preparation, and competencies for teaching,” to limit teacher

licenses to “knowledgeable, effective, and caring

professionals,” and to confirm that student teachers “[a]ct,

speak, and dress” like teachers. To fulfill its responsibilities

to the public, the University may evaluate a candidate’s

suitability for teaching based, in part, on his or her speech.

Specifically, the University’s evaluation of whether Oyama’s

statements are consistent with defined and established

professional standards is entirely compatible with the

University’s institutional purpose of evaluating a candidate’s

suitability for the teaching profession.

By focusing on the relationship between the University’s

decision and the standards of the profession in which Oyama

sought certification, we join the other courts that have

considered free speech claims in the certification context,

even as we part from most of them in declining to squeeze

this case into an existing doctrinal framework that does not

quite fit. See, e.g., Keeton, 664 F.3d at 869 (upholding a

university’s decision to sanction a graduate student in a

school counseling program where the student’s statements

15

See generally Robert C. Post, Constitutional Domains: Democracy,

Community, Management 237 (1995) (explaining that, under both student

speech and public employee speech doctrine, “[t]he constitutional question

. . . is whether the authority to regulate speech is necessary for the

achievement of legitimate institutional objectives”).

34 OYAMA V. UNIVERSITY OF HAWAII

suggested that she would “violate several provisions of the

American Counseling Association’s (ACA) Code of Ethics,

which [the university] was required to adopt and teach” to

offer an accredited counseling program); Ward, 667 F.3d at

735 (ruling in favor of a student expelled from a counseling

degree program where professional standards of ethics did

not, as the university argued, prohibit the course of conduct

the student proposed to her supervisors); Tatro, 816 N.W.2d

at 522 (upholding a university’s decision to sanction a

mortuary sciences program student whose Facebook posts

conflicted with “an established professional conduct standard

for mortuary science professionals”). These courts have

emphasized, as we do, that certification programs are

designed to ensure that their students meet the professional

standards of their chosen fields. See, e.g., Keeton, 664 F.3d

at 876 (“[T]he entire mission of [the university’s] counseling

program is to produce ethical and effective counselors in

accordance with the professional requirements of the ACA.”);

Tatro, 816 N.W.2d at 511–12 (“[T]he primary purpose of the

program—its ‘mission’—is to prepare students to be licensed

funeral directors and morticians.”). Here, the University’s

certification program is “designed for students who possess

a baccalaureate degree and wish to obtain eligibility for a

license to teach.” Thus, while we take a different view of the

applicability of First Amendment doctrine to the certification

context, the certification cases further support our conclusion

that the University could deny Oyama’s student teaching

application where his statements indicated that he had not

absorbed, and likely would not comply with, defined and

established standards for the teaching profession.

We emphasize that the University did not “establish” or

“define” these professional standards by fiat. Its decision was

not, in other words, based on school policies untethered to

OYAMA V. UNIVERSITY OF HAWAII 35

any external standards, regulations, or statutes governing the

profession. Instead, the University relied upon standards

established by state and federal law, the Hawaii Department

of Education, the HTSB, and the University’s national

accreditation agency, the NCATE. From Dr. Ratliffe’s initial

conversation with Oyama to Dean Sorensen’s letter affirming

the denial of Oyama’s application, the University framed its

concerns about Oyama’s statements by reference to

professional standards set beyond the walls of its own

institution. The University thus compared Oyama’s speech

not to its own idiosyncratic view of what makes a good

teacher, but rather to external guideposts that establish the

skills and disposition a secondary school teacher must

possess.

That Oyama did not in fact consummate the acts

proscribed by these professional standards does not mean that

the University’s decision to deny his application was not

directly related to them. State policy required the University

to “[v]erify” Oyama’s “ability to function effectively in

Department classrooms” before approving his student

teaching application. Therefore, the University’s decision

was, by necessity, prospective in nature. Oyama stood in the

doorway of the teaching profession; he was not at liberty to

step inside and break the house rules. But that does not mean

that the University was obligated to invite him in. Rather, the

University could look to what Oyama said as an indication of

what he would do once certified. Cf. Connick, 461 U.S. at

152 (explaining that a public employer need not wait “to

allow events to unfold to the extent that the disruption to the

office is manifest before taking action”). Oyama’s statements

concerning “child predation” and “inclusion” of disabled

students suggest that he had not internalized basic concepts

embodied in the relevant external standards—the nature of

36 OYAMA V. UNIVERSITY OF HAWAII

sexual predation on children, for example, or the importance

of including and supporting disabled students. The

University need not—and, consistent with its mandate under

state policy, could not—have approved Oyama’s application

and sat idly by while his failure to accept basic professional

standards led to results these standards were designed to

prevent.

For example, with regard to the sexual abuse of children,

Oyama’s belief that young children can meaningfully

“consent” to sexual activity with adults, and failure to

appreciate the lifelong impact on victims of child sexual

abuse, could well impede him from recognizing signs of such

abuse in his students or evidence of such abuse by school

personnel. His promise to report illegal abuse is therefore

beside the point; he can only report what he perceives, and his

attitudes could well stand in the way of his perception.

Similarly, with regard to teaching disabled children, the

University was entitled to regard Oyama’s insistence that

most disabilities are feigned and that requiring high school

teachers to educate disabled students is unreasonable as

indicators that he would not make the effort to identify

students with disabilities or adjust his lessons for individual

students whose disabilities require special accommodations.

Given these legitimate concerns, the University could “tak[e]

action” and deny Oyama’s application before permitting him

to enter the classroom as a student teacher. Id.

(ii) Narrowly Tailored

We next ask whether the University’s decision was

narrowly tailored to serve the University’s purpose of

evaluating Oyama’s suitability for the teaching profession.

In a variety of contexts, the First Amendment requires that

OYAMA V. UNIVERSITY OF HAWAII 37

restrictions on protected speech be narrowly drawn. See, e.g.,

Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989) (in

the context of the government’s “time, place, or manner”

restrictions, the restriction “must be narrowly tailored” to

serve the government’s legitimate interests); Cent. Hudson

Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S.

557, 565 (1980) (in the commercial speech context, “[t]he

regulatory technique may extend only so far as the interest it

serves”); Butler v. Michigan, 352 U.S. 380, 383 (1957)

(explaining that an overbroad restriction on speech amounts

to “burn[ing] the house to roast the pig”). “[B]y demanding

a close fit between ends and means, the tailoring requirement

prevents the government from too readily ‘sacrific[ing]

speech for efficiency.’” McCullen v. Coakley, 134 S. Ct.

2518, 2534 (2014) (quoting Riley v. Nat’l Fed. of Blind of

N.C., Inc., 487 U.S. 781, 795 (1988)). We find such a

requirement appropriate in this university setting, which

provides the backdrop not only for some speech that the

government may legitimately regulate, but also for much of

the “discord and dissent” the First Amendment seeks to

promote. Rodriguez, 605 F.3d at 708. Adopting a narrow

tailoring requirement in this context, we ensure that the

University does not transform its limited discretion to

evaluate a certification candidate’s professional fitness into

a open-ended license to inhibit the free flow of ideas at public

universities.

The University’s decision was narrowly tailored to serve

its goal of “employ[ing] and prepar[ing] educators who are

knowledgeable, effective, and caring professionals.”

Handbook, supra, at 8. The University’s decision primarily

rested on Oyama’s statements endorsing sexual relationships

between children and adults, online and in “real life,” and his

statements expressing apathy towards disabled students and

38 OYAMA V. UNIVERSITY OF HAWAII

an unwillingness to accommodate their classroom needs.

These statements related directly to his suitability for

teaching. By contrast, the record does not suggest that the

University based its decision on speech unrelated to teaching.

The University did not, for example, rely on upon several of

Oyama’s statements that may seem bizarre but have no

relationship to the teaching profession—such as his

statements that he “came from outer space” or “thinks about

suicide every day.” Nor did the University, based on the

record before us, rely on statements addressing “social,

political, esthetic, moral, and other ideas and experiences”

that are unrelated to teaching but essential to the marketplace

of ideas. Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2674

(2011) (quoting Red Lion Broad. Co. v. FCC, 395 U.S. 367,

390 (1969)). Thus, rather than relying on any statement, no

matter the subject, as a basis for its certification decision, the

University limited its focus to Oyama’s statements that

directly addressed the roles and responsibilities of aspiring

secondary school teachers.

Furthermore, the University based its decision only upon

statements Oyama made in the context of the certification

program—in the classroom, in written assignments, and

directly to the instructors responsible for evaluating his

suitability for teaching. For example, Oyama asserted that

“real life child predation should be legal” in a written

assignment in Dr. Ratliffe’s class on “Educational

Psychology: Adolescence and Education.” When Dr. Ratliffe

spoke to Oyama after class, Oyama explained that a

“consensual relationship” between a 12-year-old girl and

another teacher would be “fine.” Similarly, Oyama stated

that it is not reasonable to expect a secondary school teacher

to teach “the students with learning disabilities” in a written

communication to Mr. Siegel, Oyama’s instructor in

OYAMA V. UNIVERSITY OF HAWAII 39

“Educating Exceptional Students in Regular Classrooms –

Secondary.” There is no evidence that the University relied

upon any statements Oyama may have made outside this

context or communicated to a broader audience. Nor is there

any evidence that the University attempted to restrict or take

any adverse action in response to Oyama’s expressive

activities in other campus-related contexts, such as meetings

with other students or protests to university officials. Beyond

the limited context in which Oyama made the statements that

supported the University’s decision, Oyama was free to

express his opinions on any subject he wished. Accordingly,

the University’s decision did not impose any restriction

broader than necessary to achieve its goal of evaluating

Oyama’s suitability for teaching.

(iii) Reasonable Professional Judgment

We conclude that the First Amendment also requires us

to ask whether the University’s decision reflects reasonable

professional judgment about Oyama’s suitability for the

teaching profession. A reasonableness inquiry is, of course,

a common feature of First Amendment doctrine. See

Hazelwood, 484 U.S. at 274–76 (student speech); Connick,

461 U.S. at 154 (public employee speech); see also Int’l Soc.

for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 683

(1992) (forum-based analysis). Here, this inquiry is critical

because not all inconsistencies between a candidate’s

statements and defined and established professional standards

provide a reasonable basis to conclude that the candidate is

not suitable to enter the profession. For example, the

statement, “I hate cleaning my office” may be in tension with

a professional standard to “keep the office tidy” but may not

be a reasonable basis to conclude that the speaker is not fit to

40 OYAMA V. UNIVERSITY OF HAWAII

enter the profession.16 Absent this inquiry, the University

could use professional standards as a pretext for decisions

based on officials’ personal disagreement with the

candidate’s views. As the Tenth Circuit explained in

Axson-Flynn, “we would be abdicating our judicial duty if we

failed to investigate whether the [professional standard] was

pretextual.” 356 F.3d at 1292–93 (emphasis omitted). In this

context, we may defer to the University’s decision because of

its prerogative to evaluate professional competencies and

dispositions, not because of a blind faith in the University’s

sense of what views are right or wrong. Consistent with this

rationale for deference, we may uphold the University’s

decision only if it reflects reasonable professional judgment

about Oyama’s suitability for teaching.

The University’s decision to deny Oyama’s application

satisfies this requirement. First, the University had every

reason to conclude that Oyama’s statements concerning

sexual relationships between teachers and students were

“serious matters of concern.” The Supreme Court has

recognized that sexual abuse “unfortunately is an all too

common aspect of the educational experience.” Gebser v.

Lago Vista Indep. Sch. Dist., 524 U.S. 274, 292 (1988); see

also, e.g., Richard Winton, Ex-Marlborough School Teacher

Admits Sexually Abusing Students, L.A. Times, Oct. 21, 2015;

Martha Irvine & Robert Tanner, Sexual Misconduct Plagues

U.S. Schools, Wash. Post, Oct. 21, 2007. According to a

Department of Education study, “more than 4.5 million

students are subject to sexual misconduct by an employee of

16

See generally Deborah L. Rhode, Moral Character as a Professional

Credential, 94 Yale L.J. 491 (1985) (discussing the variety and breadth of

professional certification requirements, including the requirement of

“good moral character”).

OYAMA V. UNIVERSITY OF HAWAII 41

a school sometime between kindergarten and 12th grade.”

Educator Sexual Misconduct, supra, at 18. The federal

government has attributed this problem, in part, to school

officials’ recommendations of teacher candidates despite

warning signs of the candidate’s potential to abuse students.

See U.S. Gov’t Accountability Off., GAO-11-200, K-12

Education: Selected Cases of Public and Private Schools that

Hired or Retained Individuals With Histories of Sexual

Misconduct 3–5 (2010). In one example highlighted by the

Government Accountability Office, school officials

recommended a teacher for service despite complaints that he

had accessed pornography on school computers; the teacher

was subsequently convicted of sexually assaulting two

students. Id. at 15–18. A perfectly reasonable way to prevent

similar tragedies at Hawaii schools is to decline certification

to candidates who vocally support sex between teachers and

their twelve-year-old students. We put aside the risk that

Oyama would himself abuse a student; his statements do not

sufficiently support such a prediction, and we see no evidence

that the University denied his application on the basis of this

risk. Rather, the University could reasonably conclude that

Oyama would fail to perceive, or to exercise the vigilance

needed to identify and report, potential or actual sexual abuse

of students by other adults. The University recognized these

risks and appropriately made a decision, as Dean Sorensen

put it, “not to place young children in harm[’]s way.”

The University’s concern with Oyama’s statements

regarding disabled students was likewise well-founded.

Congress enacted the Individuals with Disabilities Education

Act in response to the “apparently widespread practice of

relegating handicapped children to private institutions or

warehousing them in special education classes.” N.D. v.

Haw. Dep’t of Educ., 600 F.3d 1104, 1115 (9th Cir. 2010)

42 OYAMA V. UNIVERSITY OF HAWAII

(citation and internal quotation marks omitted). Federal and

state law mandate a commitment to providing disabled

students the services they need and promoting a more

integrated learning environment for all students. The

University could reasonably conclude that a candidate who

expresses his view that special education students are

“fakers” to his professors would lack the professional

disposition necessary to identify disabled students and teach

all students, including those with disabilities. The University

could also reasonably conclude that a candidate who

considers it unreasonable to teach both disabled and

non-disabled students would not put in the effort to “provide

services to students in a nondiscriminatory manner” as a

teacher.

Furthermore, the record demonstrates that Oyama’s

professors expressed concern not out of personal

disagreement with Oyama’s views but rather because of their

“responsibility as a profession.” Dr. Ratliffe, for example,

told Dr. Moniz that she did not “mind that [Oyama] has

opinions that are different from other people’s” and “actually

[found] [Oyama’s] enthusiasm about his opinions refreshing,”

but nevertheless was “concerned that [Oyama] may not be

aware of and in agreement with the safety issues about the

adolescents who will be in his care.” Mr. Siegel clarified to

Oyama that his concerns were “not based on [Siegel’s]

opinion” but rather “on [his] 43 years as an educator,” and his

understanding of the criteria schools consider in hiring

teachers. Even instructors who had initially defended Oyama

as “likable” ultimately concluded that Oyama “was unsuitable

for teaching.” The record thus demonstrates that the

University’s certification decision reflects professional

judgment, not personal disagreement with Oyama’s views.

OYAMA V. UNIVERSITY OF HAWAII 43

B. Procedural Due Process Claim

Oyama also argues that the University’s denial of his

teaching application without a hearing violated his Due

Process rights under the Fourteenth Amendment. The district

court properly rejected this argument.

The premise of Oyama’s Due Process claim is that the

University’s denial of his student teaching application

constituted “constructiv[e] dismiss[al]” from the Program and

thus deprived him of a constitutionally protected interest in

remaining in the Program. This premise is questionable: the

Program’s handbook advises prospective students that

admission to the Program does not guarantee admission to

student teaching. Participation in the Program without

permission to student teach is consistent with the Program’s

basic structure; indeed, Dean Sorensen estimated that “around

20 students annually” are not approved for student teaching.

The denial of student teaching is thus more akin to the denial

of access to honors-level courses on the basis of a student’s

poor grades than to expulsion. See Hennessy, 194 F.3d at 250

(explaining that a certification candidate’s due process claim

was “especially tenuous” because the university “did not

expel the appellant, but merely precluded him from

continuing in a particular program”).

But even if we accept Oyama’s argument that the

University’s decision deprived him of a constitutionally

protected interest, the University provided him with adequate

process. “When considering cases that originate in an

educational institution, the law distinguishes between

academic dismissals and disciplinary dismissals.” Hlavacek

v. Boyle, 665 F.3d 823, 826 (7th Cir. 2011). Academic

dismissals do not require a hearing and “meet[] the

44 OYAMA V. UNIVERSITY OF HAWAII

requirements of procedural due process so long as the

dismissal decision is ‘careful and deliberate.’” Brown,

308 F.3d at 954–55 (quoting Bd. of Curators of Univ. of Mo.

v. Horowitz, 435 U.S. 78, 85 (1978)). Disciplinary

dismissals, by contrast, may require more formal procedures.

See Horowitz, 435 U.S. at 85–86 (citing Goss v. Lopez,

419 U.S. 565, 581, 584 (1975)).

The University’s decision to deny Oyama’s student

teaching application was an academic decision. Throughout

its communications with Oyama concerning his application,

the University emphasized that its decision was based on the

student teaching requirements described in the Program’s

handbook and established by professional standards. That the

University’s decision was based on Oyama’s professional

disposition, and not his intellectual aptitude, does not strip it

of its academic character. In the context of this certification

program, a central criterion for academic success was a

demonstration of the ability to satisfy professional standards

for teacher certification. See Brown, 308 F.3d at 954

(explaining that a university’s decision not to publish a

master’s thesis because it contained an unprofessional

“Disacknowledgements” section was “properly characterized

as an ‘academic’ decision”).17

Horowitz supplies “the standard for procedural due

process in the context of academic decisions.” Id. In

Horowitz, a medical student argued that her school violated

her procedural due process right by dismissing her from the

program without a hearing. See 435 U.S. at 80–82, 85–86.

17

Although there was no majority opinion in Brown, Judge Reinhardt

concurred in Judge Graber’s procedural due process analysis. See Brown,

308 F.3d at 956 (Reinhardt, J., concurring in part and dissenting in part).

OYAMA V. UNIVERSITY OF HAWAII 45

The Court explained that the student’s dismissal “rested on

the academic judgment of school officials” that the student

lacked “the necessary clinical ability to perform adequately”

as a physician. Id. at 89–90. The Court held that the student

was not entitled to a hearing and that the university satisfied

the requirements of due process because the school “fully

informed [the student] of the faculty’s dissatisfaction with her

clinical progress and the danger that this posed to timely

graduation and continued enrollment” and because “the

ultimate decision to dismiss [the student] was careful and

deliberate.” Id. at 85.

Here, the University’s denial of Oyama’s student teaching

application satisfied the due process requirements set forth in

Horowitz. As in Horowitz, the University “fully informed

[Oyama] of the faculty’s dissatisfaction” with his

performance: multiple professors told Oyama about their

concerns regarding his suitability for the teaching profession.

The University’s decision was also “careful and deliberate.”

The University initially explained the reasons for its decision

in Dr. Moniz’s detailed letter to Oyama. The University then

provided Oyama a robust process for appealing its initial

decision: Dean Sorensen formed a multidisciplinary

committee, which interviewed Oyama and three professors of

his choice and prepared a detailed report reviewing the Dr.

Moniz’s decision. Dean Sorensen then provided Oyama

another letter explaining the committee’s findings and

affirming the University’s decision to deny his application.

This process was sufficiently careful and deliberate to meet

the requirements of the Due Process Clause.

46 OYAMA V. UNIVERSITY OF HAWAII

IV.

In the context of a public university’s professional

certification program, the university may evaluate the

student’s speech, made in the course of the program, in

determining the student’s eligibility for certification without

offending the First Amendment under certain circumstances.

Because the University of Hawaii’s decision to deny Oyama’s

student teaching application directly related 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, the University did not violate Oyama’s First

Amendment rights. In addition, because the University

granted Oyama adequate procedural protections in denying

his student teaching application, it did not violate Oyama’s

due process rights. Therefore, the district court properly

granted summary judgment in favor of the University.

AFFIRMED.