F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

M A R K L

. O Y A M A , Plaintiff-Appellant

,

v

.

U N I V E R S I T Y O F H A W

A I I ; C H R

I S T I N E S O R E N S E N ; J E F F R

E Y M O N I Z ; J O H

N D O E S , 1–25; J A

N E D O E S , 1 –25, Defendants-Appellees

. N o. 13-16524

D.C. No. 1:12-cv-00137- H G-B MK

OPI NI ON

A ppeal from the United States District Court for the District of Hawaii Helen W . Gillmor, Senior District J udg e, Presiding

Arg ued and Submitted J une 9, 2015—Honolulu, Hawaii

F iled December 29, 2015

B efore: Kim McL ane W ardlaw, Marsha S. B erz on, and J ohn B . Owens, Circuit J udg es.

Opinion by

J udg e W ardlawO Y A M A V

. U N I V E R S I T Y O F H A W

A I I 2

SUMMARY *

Civil Rights

The panel affirmed the district c ourt’s summary judg ment in an action b roug ht by a secondary e ducatio n candidate alleg ing that the University o f H a w a ii’s denial of his application to becom e a s tudent teacher on the basis of his speech violated his F irst Amendment and due process rig hts.

The p anel h eld that in the contex t of a public university ’s professional c ertification prog ram, the university may evaluate a student’s speech, made in the course of the
prog r am, in determining t he student’s elig ibility for certification without offending the F irst Amendment under certain c ircumstances. I n this case, because the University o f Hawaii’s decision to d eny plaintiff’s student t ea c hing application directly r elated to defined and e stab l i s h ed professional standards, was n a r rowly tailored t o serve the University ’s core mission of evaluating plaintiff’s suitability for teaching

, a

nd reflected r easonable professional judg ment, the University did not violate plaintiff’s F irst A mendment rig hts. I n a ddition, b ec a u s e the University g ranted p laintiff adequate procedural protections in deny ing his student teaching application, it did not violate plaintiff’s due process rig hts.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.O Y A M A V

. U N I V E R S I T Y O F H A W

A I I 3

COUNSEL

Eric A. Seitz (arg

ued), Della A u B elatti, and Sarah R. Devine, Honolulu, Hawaii, for Plaintiff-Appellant.

Christine Tamashiro (arg

ued), Daroly

n H. L e ndio, and Ry an M. Akamine, Honolulu, Hawaii, for Defendants-Appellees.

Greg L ukianoff, Philadelphia, P e n nsy lvania, for Amicus Curiae F oundation for I ndividual Rig hts in Education.

Eug ene Volokh, UCL A School of L aw, L os A n ge les, California, for Amicus Curiae Student Press L aw Center.

OP INION

W A RDL AW , Circuit J udg e:

The University of Hawaii d enied secondary e d u c ation candidate Mark L . Oy ama’s application to become a student teacher, a prerequisite for recommendation t o t h e State o f Hawaii’s teacher certification board. This appeal from the district court’s g r ant of summary judg ment to the University i m plicates the c o n s t i t u t i o n a l b a l a n c e b e t w e e n t w o prerog atives of a public university ’s p rofessional c ertification
prog r am: p romoting open d iscourse among its students a nd limiting certification to candidates suitable for e ntry into a particular profession. W e must deli n e a t e the scope of the University ’s authority to deny a teaching candidate’s student teaching a

pplication on the basis o f the candidate’s s p eech. W e c o n cl ude that the University did not violate Oy ama’s F irst Amendment rig hts because its decision related directly
to defined and established professional standards, wasO Y A M A V

. U N I V E R S I T Y O F H A W

A I I 4

narrowly tailored to serve the Univer s i t y ’ s c ore mission o f evaluating Oy ama’s suitability for teaching

, and reflect e d reasonable professional judg men t

. I n addition, because the University provided adequate procedural protection s i n deny ing Oy ama’s application, neither it nor its ag ents violate d O y a ma’s procedural due p rocess rig h ts. W e therefore affirm t h e district court’s g rant of summary judg ment to the University

.

I.

Mark Oy a ma e arned a n u nderg raduate d eg ree in mathematics from the C a lifornia I nstitute of Technolog y , followed b y a Master’s D eg ree in phy sics from the University of Hawaii. He then enrolled in the Univers i t y o f Hawaii’s
po s t

- b a c c a laureate secondary education certification prog ram at Manoa.

A. Hawaii’s P o s t -Baccalaureate Certificate in S econdary Education Program

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

or full-time teacher in a p u b lic school without first h aving obtained a license.” Haw. R e v. Stat. § 302A-805. The
purpose of t e a cher licensing

, or certification, is to “ensure that e ducation professionals possess the appropriate training

, preparation, and competencies for teaching .” Univ. of Haw.
at Manoa, Secondary Teacher E ducation Program Handbook 26 (rev. 2009) (“

Handbook

”).

The University of Hawaii at Manoa is Hawaii’s only national l y a c c r e dited institution that recommends students for

c e r tification as secondary school teachers. Id. at i. The University offers a Post-B acca l a u reate Certificate inO Y A M A V

. U N I V E R S I T Y O F H A W

A I I 5

Secondary Education ( PB CSE) P r o g ram (the “ Prog ram”) to students who h a v e bachelor’s deg rees and wish to obtain certification as secondary school teachers. 1 According to the Prog r am’s handbook, the Prog ram’s g oal is “to empl o y a nd
prepare e ducators who are knowledg eable, effective, a nd caring professionals.” Id

. a t 8. The “caring ” c omponent seeks to “advanc[ e] s o cial justice and overcom[ e] both discrimination and oppression” a n d “requires a hig h level o f professionalism demonstrated th r o ug h ethical behavior, competence, r eflecti o n , fairness, respect for diversity

, and a commitm ent to inclusion and social responsibility .” Id. at 8–9. The Prog ram’s r equirements include coursework a nd

one semester of student teaching

. Admission to the Prog ram does n ot g uarantee admission to student teac h i n g

. Rather, students must submit a Student Teaching Application a nd

mu s t m e e t all student teaching requirements set forth in the Prog r am’s handbook. F or ex ample, a student teacher must “[ a] ct, speak, and dress like a teacher.”

The Prog ram’s student teaching requirements ref lect the
many reg ulations and policies g overning admis sion to the teaching profession in Hawaii. F irst, the University must comply with the Hawaii Department of Education’s policies and reg ulations. Pursuant to Department of Education Policy No. 5600
, f

o r ex ample, the University may approve candidates f

or student teaching only “upon verification

. . . o f their ability to f

unction e ff

e c tively in Department classrooms.” Second, the University must c ompl y with the Hawaii Teacher Standards B o ard’s (HTSB ) teacher licensing

1 T h e Pro g ram is a p art o f th e Co l leg e o f Ed u catio n at t h e Un i v ersity of Haw aii at Man o a. Fo r pu rp o ses o f th is ap p eal, it is n o t n eces s ary to d istin g u ish betw een th e Co lleg e o f Ed u catio n an d th e U n iv ersity

. A cco rd i n g ly , w e ref

er to b oth as th e “ U n i v ersity .”O Y A M A V

. U N I V E R S I T Y O F H A W

A I I 6

and ethical standards. HTSB standard s r e quire teachers to, among other thing s, protect student safety

, create an inclusive learning environment for all students, and d emonstrate professionalism. F inally

, the University is required to uphold the standards of its accr e d i ting org aniz ation, the National Council for Accreditation of Teacher Education (NCATE). S e e Nat’l Council for Accreditation of Teacher Educ.

, Standards for Professional Development Schools 11 (2001) (ex plaining that accredited institutions must “develop criteria consistent with state and nation a l standards for candidates’ admission to and completion of the p reparation prog ram a nd make recommendations for candid at e certification based on the standards”).

B. Oyama’s Performance in the PBCSE Program

I n the summer of 2 010
, O y a ma enrolled in the University ’s PB CSE Prog ram. Oy a ma beg an his coursework and completed a field ex perience practicum at a local middle school. During this p e riod, several faculty members separately contacted Prog ram administrators to ex press their

concerns ab o ut Oy ama’s suitability for the teaching profession.

Oy ama’s statements concerni n g sex ual relationships between adults and children were o f ce n tral concern to the faculty

. W hile ta k i n g Dr. Ratliffe’s c lass on “Educational Psy c holog y : A dolescence and Education,” Oy ama was assig ned to write a reflection about a video entitled “Growing Up Online.” Oy ama wrote:

Personally

, I think that online child predation should be leg al, and f

ind it ridiculous that o ne could be arrested for comments they make onO Y A M A V

. U N I V E R S I T Y O F H A W

A I I 7

the I nternet. I even think that real life child pred ation should be leg al, provided that the child is consentual [ sic]

. B a sically f r o m my point of v iew

, t he ag e of consent should be either 0, or whatever ag e a child is when puberty beg ins.

W h en Dr. Ratliffe discussed these statements with O y ama, he

sa id that “it would be f

ine” for a twelve-y e ar-old student to have a “consensual” relationship w ith a teacher. W h e n Dr. Ratliffe ex p lai n e d t hat state law would require Oy ama to report such c onduc t , O y a ma stated that he would obey the law a nd report the r elationship, b ut still believed that such a “consensual” r e l a tionship was not w rong

. Dr. Ratliffe contacted the Director of the Secondary Prog ram, Dr. Moniz

, about these statements, ex plaining that, w h i l e she d id not “mind that [ Oy ama] has opinions that are different from other people’s,” she was c o ncerned that Oy ama “may not be a ware of and in ag reement with safety issues about the adolescents who w ill be in his care.” She cautioned that, “because o f his lack of sensitivity to and empathy wi t h others and lack o f self-awareness at this time, w e s hould be very careful about accepting him as a teacher candidate.”

Another concern stemmed from Oy ama’s c omments about teaching students with disabilities. F or ex ample, in his class on “Educating Ex cep t i o nal Students in Reg ular Classrooms – Secondary ,” Oy ama e x pressed the belief that “if the disability is suffi ciently severe and not of a phy sical

n a t u re

. . . there is little benefit to inclusion for the disabl e d student” in the cla s s r oom environment. Oy ama a lso wrote that it is not reasonabl e to ex p e c t secondary school teachers
to have the “ex tremely diverse skills e t” needed to teach the

r ang e of g rade levels p resented in a mainstream class r o o mO Y A M A V

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A I I 8

that includes students w ith learning d i s a b i l ities. I n another assig nment, Oy ama asserted that nine o f ten special education students he e ncountered were “fakers” and ex plained that he

was “ not convinced that many ‘disabilities’ are ac tual d isabilities or medically -based neurolog ical conditions, b u t

are rather the c rude o pinions of psy chologi s ts a nd
psy chiatrists.” Mr. Sieg el, Oy ama’s professor, informed Dr. Moniz of his “serious concerns re ga r d ing Mark Oy ama entering the teaching profession.” Mr. Sieg el also noted his

concern to Oy a ma, clarify ing that h is concern was “not based

on [ Sieg e l’s] opinion,” but rather on leg al stand ards and his unde rs t anding

, “based on [ h is] 4 3 y ears as an educator,” o f the c riteria s chools c o nsider in evaluating prospective teachers. 2

Oy ama’s performance in a field ex perience prog

ram at a nearby middle school corroborated ma n y o f his professors’

concerns. I n the F ield Ex perience Evaluation F o r m, several disposition s a

r e l i s t e d, w hich are evaluated as “unacceptable,” “acceptable,” or “targ et,” the hig hest rating

. 3 Oy ama received multiple rating s of “ unacceptable” and no rating s of “targ et.” I n the accompany

ing Observation/Participa t ion Evaluation, Oy ama received an “unacceptable” r ating as to the ability to

2 Oy am a m ad e sev eral o th er statem en ts th at co n cern ed h is p ro f esso rs

an d w h ich t h ey relay ed to D r. Mo n iz. On e p ro f esso r ex p ressed co n cern th at Oy am a s aid th at “ h e t h in k s ab o u t su icid e ev ery d ay .” P ro f esso rs also criticized O y am a’ s t each in g s ty le, h is in ab ility to w o rk co llab orativ ely

w ith o th ers, an d h is u nw i l l in g n ess to accep t su g g estio n s f ro m h is

co lleag u es an d su

p erv iso rs.

3 T h e ev alu atio n f

o rm s tates th at “ can d id ates sh ou ld demo n stra te o v erall ratin g s o f ‘ accep tab le’ or ‘ targ et’ b y th e en d o f th e f ield ex p e r i e n ce;

ra ting s o f ‘una ccepta ble’ m a y require a Pla n o f A ssista nce a nd/o r result in a fa i l ing g ra de ” (em ph asis an d b old in o rig in al).O Y A M A V

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A I I 9

teach effectively

, work collaboratively w i t h c olleag u es, respond to sug g estions f

rom supervisors, and demonstrate the level o f professionalism ex pected o f middle school teachers. Oy ama’s supervising instructor, Dr. I rv King

, conc l u ded,

“ M y overall impression is that Mark would not d o well a s a middle school teacher.”

C. Denial of Admission to the Student Teaching Program

I n J anua r y 2 011, Oy a ma applied to the PB CSE Student Teaching Prog ram. I n a letter dated J uly 8, 2011, Dr. Moniz informed Oy ama his application had been denied. W hile noting that Oy ama had clearly met the “minimum” academic requirements, Dr. Moniz ex plained the Univer s i t y ’s “duty

, ” pursuant to Department o f Education Policy No. 5600, to “verify y our o v erall a

bility to function e f

fectively as a teacher in a Hawaii Department of Educat i o n school.” Dr. Moniz noted that a “number of factors raised the Co l l e ge o f Education’s concern,” specify ing several bases for the University ’s decision. He ex plained:

[ T] he v iews y ou h ave ex pressed reg arding

s t u d e n t s w i t h d i s a b i l i t i e s a n d t h e ap p ropriateness of sex ual relations with minors were deemed not in a lig nment w i th stand a rd s set by the Hawaii Department o f Education, the N ationa l C ouncil f or the Accreditation of Teachers (NCATE) and the Hawaii Teacher Standards B oard (HTSB ).

Dr. Moniz further e x plained that Oy ama’s “endorsement o f

sex ual relationship[ s] between adults and minors, as well a s b etween teachers and students” was in tension with H aw a i i Department of Education ru l es e x pressly prohibiting sex ualO Y A M A V

. U N I V E R S I T Y O F H A W

A I I 10

contact b etween teachers and students o r minors, see Haw. Admin. Rules

, § 8-54-9, and with the HTSB ’s r equirement that teachers protect students’ safety

, see HTS B C o d e o f Ethics, Principle I

. I n sum, Dr. Moniz found that Oy a m a ’s understanding of sex ual r elationships between adults a nd minors, as well as b e tween teachers and stu dents, was contrary to the “leg al and ethical g uidelines i m p o sed b y the State.” Dr. Moniz wrote th a t “ [ s ] uch a matter is serious

en o u gh in nature that, taken a lone

, [ it] warrants a denial o f
y ou [ sic] student teaching application” (emphasis added).

Dr. Moniz added, however, that “other issues

. . . support the d e n ial of y our application.” He recounted several
comments b y Oy ama that “demonstrated a lack of empathy and u nderstanding of students with disabilities.” He n o t e d th a t t h e se c omments, “along with y our professor’s a ssessment that y ou have been u nable to demonstrate a n y s o r t o f willing ness to accommodate students with disabilities,” were “in opposition” to HTSB and NCATE standards. Dr. Moniz specifical l y d iscussed the inconsistency b etween, for

ex a mple, Oy ama’s e x pressed view that “if a di s a bility is sufficiently severe and not o f a phy sical n ature

. . . there is little benefit to inclusion f or the disabled student” and both an HTSB standard requiring teachers t o “ [ p] rovide services to students in a nondiscrimi n at o ry manner” and an NCATE standard r equiring tea c hers to demonstrate professional dispositions necessary to teach “all students,” including those “with ex c eptionalities.” Oy ama had therefore been unable to demonstrate the r equisite P r o f e s s i o n a l D i sposition to e nter the teachingprofession.

F inally

, citing the HTSB ’ s “ri ght to deny licensing to teachers who ex hibit any b ehavior tha t i s [ i n] opposition to t h e standards and ethics imposed by the State,” Dr. M o n i zO Y A M A V

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A I I 11

noted the “unacceptable” rating s in Oy ama’s field ex perience evaluation, which corroborated Oy a m a ’ s professors’

concerns. Dr. Moniz concluded, “ [ W ] e are n ot able to verify
y our overall ability to function effectively in a school setting

. . . . A t this time, we do not feel that y ou meet basic HTSB standards or standar d s f o r the profession set by our accreditors.”

D. Oyama’s Administrative Appeal

Oy ama first responded to Dr. Moniz ’s denial letter in a J uly 18, 2 011 letter to Dr. Moni z a n d the Academic Grievance Committee seeking “ a n amicable remedy .” W hile disputing Dr. Moniz ’s conclusions based on h i s s tatements, Oy ama noted that any s t a t em ents he had made were “ in an academic, intellectual setting .” H e arg ued that the University had violated his rig ht of free speech and violated its o wn rules by failing to g ive him timely notice and n o t obtaining his sig nature on the field evaluation form. Nevertheless, Oy ama proposed that the Colleg e of Education r e fu n d all tuition
pay ments in ex chang e for his forfeit i n g all “credits and/or
g rades,” and h e would not become a classroom teacher. Dr. Moniz rejected this offer and advised Oy ama of his “rig ht to appeal in writing via the Office of the Dean of Students.”

Oy ama n ex t timely appealed the denia l o f his student teaching application by filing an academic g rievance compla i n t w ith the D ean of the Colleg e of Education, Christine Sor ensen. Dean Sorensen reviewed the decision and convened a three-person c ommittee, including officials from within and outside the Colleg e of E d u c a tion, to investig ate and review Oy ama’ s a cademic g rievance complaint. The commi t t e e interviewed Oy ama and three professors of Oy

ama’s choice.O Y A M A V

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A I I 12

On November 17, 2011, the g r ievance committee issued its r eport and finding s to Dean Sore n s en for her consideration. The report concluded that Oy ama “should not be allowed to student t ea c h since dispositions as w ell a s comments and statements made during classes a nd our interview are serious matters of concern.” I t also found that the University committed “two v iolations” of its o wn procedures: it failed to timely notify Oy ama of the standards for advancement in the academic prog ram, and it failed to provide Oy ama with his field ex perience evaluations.

I n a letter dated December 15, 2 0 11, Dean Sorensen informed Oy ama of her final decision. Citing “the standards approved by

the state for Hawaii’s teachers and the NCATE standards under which the licensing prog rams operate,” Dean Sorensen concluded that (i) the dep a rtment had provided a proper b asis for rejecting Oy ama’s a pplication to student teach; (ii) the University provided O y ama notice of the applicable standards in the Prog ram’s h a n dbook and other documents; and (iii) the University should have notified Oy ama about its “dispositional concerns” in a timely manner to allow him to make an informed decision about h is future in the p r og ram and avoid incurring additional ex penses. Dean Sorensen according ly proposed reimbursing Oy ama for certain ex penses and allowing him to withdraw from certain
courses, on the condit i o n that Oy ama release a ll c laims related to h is participation in the prog ram. 4 Dean Sorensen

4 W e n o t e t ha t th e Un iv ersity ’ s f ailu re t o g iv e Oy am a tim ely n o tice of its co n cern s d o e s n o t af f ect th e u ltim ate v alid ity o f its co n clu sio n s. A lth o u g h Dean So ren sen ’ s o f f er in d icates th at th e v io latio n o f th e Un i v ersity ’ s reg u latio n s m ay h av e su pp o rted m o n etary relief b ase d on Oy am a’ s relian ce, th at i s s u e is n o t relev an t t o th is case, w h ich co n cern s

o n ly Oy am a’ s First A m en d m en t an d p ro ced u ral Du e P ro cess rig h ts.O Y A M A V

. U N I V E R S I T Y O F H A W

A I I 13

emphasiz ed the University ’s “responsibility to ensure tha t candidates in the state-approved teacher education prog ram meet all standards and to recommend an individu a l to the l i c e nsing ag ency only when we feel a candidate meets t h e s e

ex p ectations.”

E. District Court Proceedings

Oy ama rejected that offer. I n s t e a d

, he filed a complaint
ag ainst the University of Haw a ii and university officials alleg ing v iolations o f the F irst Amendment an d the Due Process Clause of the F ourteenth Amendment. 5

Granting the University ’s motion for summary judg ment, the district court concluded that because the individual defendants 6 did not violate Oy ama’s F irst and F ourteenth Amendment rig hts, the individual d efendants were entitled to qualified immunity

. 7 To analy z e Oy ama’s F irst A mendment claim, the district court relied upon stud e n t s peech cases,

5 Oy am a’ s co m

p lain t n am ed as d ef

en d a n t s t h e Un iv ersity o f Haw aii, So ren sen , an d Mo n iz. Fo r p u rp o s es o f th i s a p p e a l

, w e ref er to all D ef en d an ts- A

p p ellees as th e “ Un iv ersity .” Oy am a’ s co m p lain t a l s o alleg e d v i o l a tio n s o f state l aw an d su b stan t iv e d u e p ro cess. T h e d istrict

co u rt rej ected th o se claim s, an d Oy am a d o es n o t ap p eal th o se ru lin g s.

6 T h e d istrict co u rt g ran ted su m m ary j u dg m en t to th e Un iv ersity b ased

o n th e Elev en t

h A m en d m en t do ctrin e o f so v ereig n im m u n ity

. Oy am a did

n o t ap p eal th at d eterm in atio n

.

7 T h e d istrict co u rt also d eterm i n ed th at b ecau se So ren sen an d Mo n iz did

n o t v io late Oy am a’ s co n s titu tio n al rig ht s , t h ey w ere en titled to qu alif ied im m u n ity

. T h e Un iv ersity h as n o t asserted a q u alif ied im m u n i t y d ef en s e

o n ap p eal. A t oral arg u m en t, th e Un iv ersity ex p ressly u rg ed th e p an el n o t to co n sid er q u ali fied im

m u n ity

. A cco rd in g ly

, w e d o n o t reach th e issu e

o f q u alif ied im m u n ity

.O Y A M A V

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A I I 14

including the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier

, 484 U.S. 260 (1988), and J udg e Graber’s opinion i n B r o w n v. Li
, 308 F .3d 939 (9th Cir. 2002), which ex tended Hazelwood to the university setting

. 8 Apply ing these cases, the d istrict c o urt concluded that U n i versity administrators had made an “academic decision based on professional judg ment” that “was reasonably r elated
to a leg itimate pedag og ical purpose

– meeting the Hawaii a nd Natio n al teacher standards.” E choing J udg e Graber’s
statement that “the F irst Amendment does not require an ed u c a t or to chang e the assig nment to suit the student’s opinion or to approve the work of a student that, in his or her judg ment, f

ails to me e t a leg itimate a cademic standard,” Brown
, 308 F

. 3d at 9 49, the district court reasoned that the “F irst Amendment do e s n o t require Defendants to accept Plaintiff in a student teaching prog ram if in their judg ment he did not meet State and National teaching standards.” The district court also concluded that the “Unive rsity afforded [ Oy ama] adequate procedural due process.” O y ama timely appeals.

II.

“W e review the distric t c ourt’s g rant of summary judg ment d

e novo .” Nigro v. Sears, R oebuck & Co.
, 784 F .3d 495, 4 97 (9th Cir. 2015). “[ W ]e may affirm based on any g round supported by the record.” Johnson v. Rive r s ide Healthcare Sys., LP , 534 F .3d 1116, 1121 (9th Cir. 2008).

8 T h e p ortio n o f J u d g e Grab er’ s o p in io n in Bro wn ap p ly in g Ha zelwo o d in th e u n iv ersity

settin g d i d n o t co m

m an d a m aj o rity

o f th e p an el.O Y A M A V

. U N I V E R S I T Y O F H A W

A I I 15

III.

A. First Amendment Claim

Oy ama arg ues that the University ’s decision to d eny his student teaching applicat i o n violated his F irst A mendment rig ht to f reedom of speech. Oy ama equivocates, however, on the question of w hich F irst A m e n d ment doctrine applies to his claim. Oy ama f

irst characteriz es the University ’ s decision

as “retaliation f

or [ his] personal opinions,” a characteriz ation evocative o f the public employ ee speech doctr i n e first
recog niz ed in P ickering v. Board o f E ducation

, 391 U.S. 563 (1968). See id. a t 568 (addressing the “balance between the interests o f the teacher, as a citiz en, in c o m menting upon matters o f public concern a n d the int e r e s t of the State, as an

em p l o y e r, in promoting the efficiency of the public services it performs throug h its employ ees ” )

. Oy ama then invokes student speech doctrine, quoting the Supreme Court’s classic observation that students do not “shed their constitutional rig hts to freedom of speech or ex pression at the schoolhouse
g ate.” Tinker v. Des Moines Cmty. Sch. Dist.
, 393 U.S. 503, 506 (1969).

W e understand the hy

b r id nature of Oy ama’s F irst Amendment claim. On the one hand, O y a m a w a s a student in an academic setting. On the o ther hand, Oy ama was a candidate for a certification that w ould a llow him to work a s

a public school teacher. Oy ama’s clai m d e f ies easy categ oriz ation because h is position at t h e University combined t h e characteristics o f both a student and a public employ e e.

I n lig ht o f the mix ed characteristics of Oy ama’s claim, we address the applicability of b oth student speech and pub l i cO Y A M A V

. U N I V E R S I T Y O F H A W

A I I 16

employ e e speech doctrines. W hile both doctrines illuminate certain prin c i p l es that g uide our a naly sis, we conclude that neither, standing alone, provides an adequate framework for

ev a luating Oy ama’s claim. Drawing from b oth student

s p eech a nd public employ ee speech doctrines and from t h e few decisions of other courts that have confronted free speech claims in the certificatio n c o ntex t, w e conclude that the University did not violate O y a ma’s F irst Amendment rig hts becau s e its decision related directly to defined a nd established professional standar d s , w as narrowly tailored to

serve the University ’ s core mi ssion o f evaluating Oy ama’s suitability for teaching

, and reflected reasonable professional judg ment.

1. Student Speech Doctrine

B e cause Oy ama was a student when the University denied his student teaching a

p p lication, we beg in by ex amining the Supreme Court’s student speech jurispruden c e

. As Oy ama correctly notes, it is “clear that students do not ‘sh e d t h ei r constitutional r ig hts to freedom of speech or ex pression at the schoolhouse g a te.’” Morse v. Freder ick

, 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,’ e ven thoug h the g overnment could not censor similar speech outside the school.” Hazelwood

, 484 U. S

. a t 266 (citation omitted) (quoting Bethel School Dist. No. 4 03 v. Fraser
, 478 U.S. 675, 685 (1986)).

I n the seminal student speech case, Tinker

, the Court h eld that a hig h school may n o t suppress its students’ speech unless school officials r ea s o nably conclude that it will “materially a

nd substantially d isrupt the work and disciplineO Y A M A V

. U N I V E R S I T Y O F H A W

A I I 17

of the school.” 393 U.S. at 513. Tinker involved a g roup of students who wore black armbands to school in protest of the Vietnam W ar. 393 U.S. at 504. The Court held that neither the h ig h school’s “ mere desire to avoid the discomfort a nd unpleasantn e ss that alway s accompany an unpopular viewpoint,” nor its “urg e n t w i sh to a v oid the controversy which mig ht r esult from th e ex p ression” was sufficient to justify a b a n on the students’ “silent, passive ex pression o f opinion, unaccompanied by any disorder or disturbance.” Id. at 508–10.

Since T i nker

, however, the Court has identified several

c ircumstances in which a hig h school may r estrict its students’ speech. I n Fraser
, the Court held t h at a school district “acted entir ely w ithin its permissible authority ” in suspending a hig h school student for “g ivi n g a lewd speech
at a school assembly .” 478 U.S. at 6 77, 685. I n Hazelwood

, t h e Court held that hig h school officials may delete potentially inappropriate material f rom a student newspaper “so long as their actions are reasonably related to leg itimate pedag og ical concerns.” 4 84 U.S. at 2 7 3

. Most recently

, in Morse
, the Court allowed the suspension of a stu d e n t w h o held up a banner reading “ BO N G HiTS 4 J ESUS” as the Oly mpic torch passed b y , reasoning that “sc h o o ls may take steps to safeg

u ar d t h o s e entrusted to their care f rom speech that can reasonably b e r eg a r ded as encourag ing illeg al d rug use.” 551 U.S. at 397. All of these c ases involved the speech of hig h school students a t school or school-sanctioned events. Be y ond that contex t, “the Court has noted o n ly that ‘[ t] h e r e is some uncertainty at the outer boundaries as to w hen courts should apply school speech precedents.’” W ynar v. Douglas C t y

. S ch. Dist.
, 728 F .3d 1062, 1067 (9th Cir. 201 3 ) (alteration in orig inal) (quoting M orse , 551 U.S. at 401).O Y A M A V

. U N I V E R S I T Y O F H A W

A I I 18

The district court evaluated Oy ama’s claim within the student speech framew o r k and rejected it under Hazelwood

, finding that the University ’s action was reasonably r elated to leg itimate pedag og ical c o n cerns. Student speech doctrine does identify certain p rinciples that inform our analy sis h ere. F irst, the Court’s student speech precedents r ecog n iz e, to

some ex tent, an institutional r ationale for a school’s decision
to reg ula t e i t s students’ speech. I n Morse
, f or ex ample, the Court hel d t h a t a h ig h school could c onfiscate the “B ONG HiTS 4 J ESUS” banner and suspend the student who held it because of the s c h ool’s cong ressional mandate to prevent illeg al drug use among its students. See 551 U.S. at 408. I n this case, the University similarly bears an i n s titutional responsibility : under state policy and national accreditation standards, it must limit certifica t i o n recommendations to in dividuals suitable to enter the teaching profession. This institutional responsibility

, like the “g o vernmental interest in

s t opping student drug abuse” in Morse
, may allow the University to d eny a student teaching a p p l i c a tion 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 recog niz es a s c hool’s in t e rest in manag ing how it “lend[ s] its name” or its “imprimatur” to student ex pression. Hazelwood

, 484 U .S. at 271–72. Here, this “ imprimatur” concept resonate s not because the views of a certif i ca tion candidate may be “erroneously attributed to the scho o l

, ” id. at 271, but rather because the act of certification forces the university to speak. W h en 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 e ach student it approves to teach. T heO Y A M A V

. U N I V E R S I T Y O F H A W

A I I 19

consequences of that “imprimatur” are substantial. With the University ’s recommendation, a c a ndidate is e lig ible to a

pply for a state teaching

license and, so long as he or she satisfies other minimal requirements, to e nter the classroom. B ecause the c ertifica t i o n p r o c e s s n e c es s a r i l y implicates the University ’s “ imprimatur,” the University is entitled to deferen c e in determining how to “lend its n ame” to certification candidates. Id. at 272.

W h ile aspects of student s p e e ch doctrine are relevant here, the Supreme Court has y et to ex tend this d octrine to the public university setting

. See i d

. a t 273 n.7 (ex pressly

r e s e r v ing the question of “ w hether the same deg ree of deference is appropriate with res p ec t to school-sponsored

ex p ressive activities at the colleg e and u niversity level”). I n the twenty -seven y ears since Hazelw o o d

, we too have d e clined to apply its d eferential standard in the univers i t y setting

. I n Brown
, which involved a university ’ s decision not to a p prove a g raduate student’s thesis b ecause it contained an unprofessional “Disacknowledg ements” section, J udg e G r aber concluded that H azelwood “appears to b e the m o s t analog ous” Sup re m e Court case and “provides a workable standard for evaluating a u niversity student’s c laim stemming f r o m curricular speech.” 308 F .3d at 951–52. B ut J u d ge Gr a b er’s a

pproach failed to command a majority of the Brown panel. See id. at 955–56 (F e r g uson, J
., concurring ) (ag reeing that B rown’s F irst Amendment claim fails, but not for the reasons ex pressed by J udg e Graber); id. at 960 (Reinhardt, J
., concurring in p art and dissenting in part) (“vehemently disag ree[ ing ] with J udg e Graber’s co n clusion that Hazelwood provides the appropriate F irst A m e n d ment standard for colleg e and g r a d uate student speech”). Nor has J u d g e G raber’s reasoning been adopted by our precedents since. See, e.g. , Flint v. D ennison
, 488 F

. 3d 816, 829 n.9 (9thO Y A M A V

. U N I V E R S I T Y O F H A W

A I I 20

Cir. 2007) (“[ W ] e need not consider whether the principles o f 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 questi o n” of whether Hazelwood applies in the university setting

. Id. at 829 n.9. 9

This case presents no o ccasion to e x tend s t u d e nt speech doctrine to the university setting

. Under that doctrine, the key rationales for restr i c ting students’ speech are to ensure that students “ are n ot ex posed to material that may be inappropriate for their level of maturity ” and “learn whatever lessons the a c t i v i ty is desig n ed to teach.” Hazelwood

, 484 U.S. at 271. Neither of these rationales is relevant h ere. Concerns about student maturity cannot justify restrictions on speech in this contex t because certification candid a t e s a re adults; indeed, a p r erequisite for enrollment in the Prog ram is
g raduation from a four-y ear institution of hig her ed u cation. See W idmar v. V

i n c e nt , 454 U.S. 263, 274 n.14 (1981) (ex plaining that “[ u] niversity students ” a re “y oung adults” and “ar e l e ss impressionable than y oung er students.”); McCauley v. Univ. of the V.I.
, 618 F .3d 2 3 2
, 2 4 6 (3d Cir.

9 Co mp a re, e.g

. , W

a r d v. Po lite

, 6 6 7 F.3 d 7 2 7
, 7 3 3 –3 4 (6 th Cir. 2 0 1 2) (“ No th in g in H

a zelwo o d su g g est s a s to p

- g o d istin ctio n b etw een stu d en t sp eech at th e h ig h sch o o l an d u n iv ersity l e v els, an d w e d eclin e to create

o n e.”), K eeto n v. An d

erso n -W iley

, 66 4 F.3 d 8 6 5
, 8 7 5 (1 1 th Cir. 20 1 1) (ap p ly in g Ha zelwo o d in u n i v ersity settin g ), H o sty v. Ca rter , 41 2 F.3 d 7 3 1
, 7 3 5 (7 th Cir. 2 0 05 ) (en b an c) (“ W e h o ld

. . . th at Ha zelwo o d ’ s f ram ew ork
ap p lies to su

b sid ized stu den t n ew sp ap ers at co l leg es as w ell as elem en tary

an d seco n d ary sch o o ls.”), an d Axso n -Flyn n v. Jo h n so n , 3 5 6 F.3 d 1 2 7 7
, 1 2 8 5
, 1 2 8 9

– 9 3 ( 1 0 th Cir. 2 0 0 4) (co n clu d in g th at a g rad u ate s tu d en t’ s sp eech “ co n stitu

t es ‘ sch oo l- sp on so r e d sp eech ’ an d is th u s g o v ern ed b y H a zelwo od ”), with S tu d

en t Go v’t Ass’n v. Bd

. of Trs. o f Un iv. o f M a s s

. , 8 6 8 F.2 d 4 7 3
, 4 8 0 n .6 (1 st Cir. 1 9 8 9) (“ H a zelwo o d . . . is n o t ap p licab le
to co lleg e n ew sp ap ers.”).O Y A M A V

. U N I V E R S I T Y O F H A W

A I I 21

2010) (“Consideration s o f maturity are not nearly a s important for university

students, most o f whom are already

over the a g e of 18 a

nd e ntrusted w ith a panoply of rig h ts a nd responsibilities a s lega l adults.”). N or do “pedag og ical concerns” ex plain why the University denied Oy ama’s application on the basis o f h is speech. Hazelwood

, 484 U.S.
at 2 7 3

. The University ’s purpose was not to teach Oy ama any lesson; rather, it was to fulfill the Universi t y ’ s own manda t e of limiting certification recommendations to students who meet the standards for the teaching profession. Hawaii e n t r

usts the University with the task o f verify ing a candidate’s a

bility to “function effectively ” as an educator in public schools. T his institutional responsibility

, and not the “pedag og ical concerns” of student speech doctrine, is the

reason that the University evaluated or “reg ulated” Oy ama’s speech. Therefore, student sp e e c h doctrine does not adequately a ddress the g overnmental purposes a t stake in this
contex t.

F urthermore, student speech doctrine fails to account for the vital importance of academic fre e d o m at public colleg e s and universities. As the Supreme Court has ex plained,

The essentiality of f

reedom in the community

o f A m e r i c a n u n i v e r s i t i e s i s a l m o s t self-evident.

. . . To i m p o s e any strait jacket
upon th e i n tellectual leaders in our colleg e s

an d u niversities w ould imperil the future o f

our Nation.

. . . Teachers and students must alway s remain free to inquire, to study and to

e v a l u a t e , t o g a i n n ew m a t u r i t y a n d understanding ; otherwise our civiliz ation will stag nate and die.O Y A M A V

. U N I V E R S I T Y O F H A W

A I I 22

Sweezy v. New H

ampshire

, 354 U

. S

. 2 34, 250 (1957); see also Rodriguez v. Maricopa Cty. Cmty. Coll. Dist.
, 605 F .3d 703, 7 08 (9th Ci r

. 2 0 1 0 )

. The importance of academic freedom at a public university does not disappear when o ne walks down the h all f

rom a political philosophy seminar to a professional certificatio n prog r am like the University o f Hawaii’s. I ndeed, the prog ress of our professions, including secondar y education, may depend upon the “discord a nd dissent” of stude n ts training to enter them: it is b y challeng in g t h e inherited w isdom of their respective fields that the nex t g eneration of profess i o n a l s may develop solutions to the p r o blems that vex ed their predecessors. Rodriguez

, 605 F .3d at 708. Thus, our analy sis of Oy ama’s cla i m would be constitutionally deficient if it did not reflect the “special niche” universities occupy “in our constitutional
tr a d i t i o n.” Grutter v. B o llinger

, 539 U.S. 306, 329 (2003). The Court’s student speech cases provide no basis for doing

so. 1 0

2. Public Employ ee Speech Doctrine

Oy ama alternatively sug g ests that the University ’s denial of his s t u d en t teaching application was analog ous to an employ e r’s act of retaliation, which is g overned by Pickering

a n d its prog e ny

. Pickering “requires a court evaluating
rest r a i n t s on a public employ ee’s speech to balance ‘the interests of the [ employ ee]
, as a citiz en, in commenting upon matters o f public concern a n d the interest o f t h e State, as an

e m p loy er, in promoting the efficiency of the public servi c e s

10 In d eterm in in g th at Ha zelwo o d d o es n o t p ro v id e th e ap p ro p riate f ram ew o rk f

or ev alu atin g a First A m en d m en t claim su ch as Oy am a’ s, w e

n eed n o t an d do n o t d ecid e w h eth er t h e H a ze l w o o d stan d ard can ev er ap p ly in th e co n t ex t o f stu d en t sp eech at th e co lleg e an d u n iv ersity l ev el.O Y A M A V

. U N I V E R S I T Y O F H A W

A I I 23

i t p erforms throug h its employ ees.’” City o f S a n Diego v. Roe
, 5 43 U.S

. 77, 82 (2004) (per curiam) (alteration in orig inal) (quoting Pickering

, 391 U.S. at 568). “I n unraveling the case law since P ick

e r i n g , we have further r e fined the C o u rt ’s balancing test into a five-step inquiry .” Dahlia v. Rodriguez

, 735 F .3d 1060, 1067 (9th Cir. 2 013) (en banc). W e ask:

(1) w hether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke

as a private citiz en or pub l i c employ ee; (3) whether the plaintiff’s protected speech

was a substantial or motivating factor in the adverse employ

ment action; (4) w hether the
state had an adequate justification for treating the employ ee differently from other members of the g eneral public; and (5) w hether the state

w o u ld have taken the adverse employ ment action even absent the protected speech.

Eng v. Cooley

, 552 F .3d 1062, 1070 ( 9 th Cir. 2009). 1 1 The

11 I n D e m e r

s v. Au stin
, 74 6 F.3 d 4 0 2 (9 th Cir. 2 0 1 4 ), w e d eclin ed to

ex ten d th e S u

p rem e C o u rt’ s reaso n in g in Ga rcetti v. Ceb a llo s , 5 4 7 U .S. 4 1 0 (2 0 0 6 ), w

h ich h eld th at t

h e First A m en d m en t d oes n o t pro t ect statem en ts m ad e b y p u

blic em p lo y ees “ pu rsu an t to th eir o f f i cial d u ties,” 5 4 7 U.S. at 4 2 1
, to p u

b lic em plo y ee sp eech “ related t o sch o larsh ip or teach in g .” Demers
, 7 4 6 F .3 d at 4 0 6 (q u o tin g G a rcetti
, 5 4 7 U .S. at 4 2 5 ). Demers ap p l ied Pickerin g an d Co n n ick

, see id

. at 4 1 2

– 1 3
, th en rem an ded
to th e d istrict co u rt to co n sid er, “ as ap p ro p riate,” w h eth er “ d ef

en d an ts h ad

a su f f icien t in terest in co n tr o l l i n g or san ctio n in g [p l ain tif f ’ s sp eech ] to d ep riv e it o f i t s First A m en dm en t p ro tectio n ,” w h eth er th e p lain tif

f ’ s sp eech w as “ a su

b stan tial o r m otiv atin g f

acto r i n an y ad v erse em

p lo y m en t actio n ,” an d “ w

h eth er d ef

en d an ts w o u ld h av e tak en su ch a d v e r s e

em p l o y m en t actio n ab sen t t

h e pro t ected sp eech ,” id

. at 41 7

. Here, b ecau s e

w e co n sid er h o w p u

b lic em p lo y ee sp eech d o ctrin e m ay , as a g en eralO Y A M A V

. U N I V E R S I T Y O F H A W

A I I 24

Pickering framework “ gi ve[ s] [ public] employ ers wide discretion and control over the manag ement of their p e r sonnel and internal affairs,” Nichols v

. Dancer
, 657 F .3d 929, 933 (9th Cir. 2 011) (internal citation and quotation m arks omitted), and mandates “substantial deference

. . . t o t he
g overnment’s r easonable view of its leg itimate interests,” Bd. of Cty. Comm’rs v. Umbehr , 518 U.S. 668, 678 (1996).

More e x plicitly than student speech doctrine, public employ e e speech doctrine clarifies the University ’ s rationale for reg u lating O y ama’s speech: like a g overnment employ er, the University must “p r o tect its own leg itimate interests in performing its mi s sion” 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
g overnment’s interest in the effective and efficient fulfillment of its res ponsibilities to the public.” Connick v. Myers
, 461 U.S. 138, 1 50 (1983). The Court h as ex plained that because “[ g ] overnment ag encies a r e charg e d by law with doing particular tasks,” the g overnment’s “interest in a chieving its
g oals as e ffectively and efficie n t ly as possible is e levated from a r elatively sub o r d i n ate interest when it acts a s sovereig n to a sig nificant one when it acts as employ er.” W aters v. Churchill

, 511 U.S. 661, 6 74–75 (1 994). I n its certification role, the University

, like a g overnment e mploy e r, is “ charg ed by law” with a “par t icular task”—here, that o f ensuring that licensed teachers have “the appropriate training

, preparation, and competencies for teaching .” Id

. As the public employ ee speech c ases recog niz e , the University may constitutionally evaluate or restrict the candidate’s speech to

m atter, f acilitat e o u r ev alu atio n o f Oy am a’ s claim

, w e n eed n o t ad d ress th e in teractio n

b etw een Demers an d En g ’ s “ f iv e- step in q u iry .”O Y A M A V

. U N I V E R S I T Y O F H A W

A I I 25

f ulfill its responsibilities to the public and to achieve i t s institutional objectives.

F urther, cases address i ng the claims of public teachers provide a wealth of wisdom about the standards to which teachers and school officials are held. F or ex a mple, in Melzer

v. Board of

Education

, 336 F .3d 185 (2d Cir. 2003), a teacher

was an active member of N AMB L A, w hose stated g oal was to chang e the laws and attitudes g overning sex u a l activity b etween men and boy s. W hen his membership beca m e public, many pa r e n ts and students were outrag ed. Id. at 1 8 9

– 9 2, 199. The Second Circuit a f firmed the school ’s termination of the teacher, concluding that the disruption likely t o result from his continued employ ment would “interr u p t [ ] the children’s education, impair[ ] the school’s

r e p u t a t i o n , a n d i m p a i r [ ] e d u c a t i o n a l l y d e s i r a b l e interdependency and cooperation a m o n g parents, teachers, and admini s t r ators.” Id. at 199. Similarly

, in Craig v. Rich Township H

igh School District 227
, 736 F .3d 1110 (7th Cir. 2013), a hig h school g uidance counselor wrote a book entitled “I t’s Her F ault,” which, among other thing s, urg e d women to eng ag e in “a c ertain level of promiscuity before marriag e” and delved “into a c omparative analy s i s of the f emale
g enitalia of v arious races.” Id. at 1114. The Seventh Circuit upheld the school’s termination of the counselor, concluding that the co unseling position required the employ ee to “maintain a safe space f

or h is students in order to ensure they remain[ ed] willing to come to hi m f o r advice,” and that without that environment, the students would “not approach him” and he could not “do his job.” I d. at 1119– 2 0

. The similarities between the c ircumstances at issue in these cases

a n d those presented here make public employ ee spee c h doctrine an attractive me a n s o f analy sis for Oy a ma’s F irst Amendment claim.O Y A M A V

. U N I V E R S I T Y O F H A W

A I I 26

However useful pu b l i c employ e e speech doctrine may

a p p ear, however, it c annot control our analy sis of O y ama ’s F irst Amendment c laim. The f irst and most basic p roblem is that Oy a ma was not a g overnment e mploy ee. I n fact, Oy ama

was two steps r e m oved from g overnment employ ment: 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, o nly i f Oy ama satisfactorily performed as a student t e a cher, and met other requirements, wo u ld the University recommend him for certification a n d a c t u a l e mploy ment by the state. Characteriz ing O y ama as a public e m p l o y ee for F irst Amendment pu rposes would thus require us to ex tend this doctrine to those who do not y e t work for the g overnment but
may wish to do so—a mo v e w e h a v e not y et made. See Johnson

, 6 58 F .3d at 962 ( e x plaining that when a F irst Amendment p laintiff i s n ot a g overnment employ ee,

“ P i c kering ’s absence [ is] n ot only unsurprising

, but
necessary ”). 1 2 Given Oy ama’s status as a student and the attenuated n a ture of his relationshi p t o g overnment employ ment, this a

ppeal makes a poor can d i d ate for taking such a fateful step.

The second p r o b lem, as with student speech doctrine, is that p ublic employ ee speech d octr ine provides no basis for

12 Oth er circu its h av e ap p lied p u b lic em plo y ee sp eech d o ctrin e in th e j o b
ap p lican t settin g

. S

ee, e.g

. , W

o rrell v. H

en ry , 2 19 F.3 d 11 9 7
, 1 2 0 7 (1 0 th Cir. 2 0 00 ) (ap p ly in g Pickerin g to th e w i th draw al o f an o f f er of

em p l o y m en t af ter th e em

p lo y er d i sco v ered th e em p l o y e e ’s past sp eech activ ity ) ; B o n d

s v. Milwa u kee Cty.
, 2 0 7 F.3 d 9 6 9
, 9 7 9 (7 th Cir. 20 0 0) (ap p ly in g Pickerin g an aly sis to a Fi r st A m en d m en t retaliatio n claim of

so m eo n e seek in g p u

b lic em p lo y m en t); Hu bb ard v. EPA
, 9 4 9 F.2 d 4 5 3
, 4 6 0 (D.C. Cir. 19 9 2 ) (ap p ly in g Pickerin g to a h irin g decisio n ). Wh at w e h av e h ere, h o w ev er, is n o t p recisely a j o b ap plican t situ atio n

eith er.O Y A M A V

. U N I V E R S I T Y O F H A W

A I I 27

considering the r o l e o f academic freedom at public universities. Public employ ee speech d octrine permits t he
g overnment to reg u late speech that mig ht limit the “efficiency

” o f i t s operations, Pickering

, 391 U.S. at 5 68; it does n ot require the g overnment to promote, o r e v e n consider, its employ ees’ freedom “ to inquire, to study and to evaluate, to g ain new maturity and understanding ,” S w e e zy , 354 U.S. at 250. As a student at the University of Hawaii, Oy ama enjoy ed g r eater freedo m t o test his ideas, critique professional c onventions, and develop into a more mature professional th a n he would a s a g overnment employ e e. T o hold Oy ama to the same standard as w e hold public employ e es would deprive h im of rig hts the F irst A mendment
g uarantees him as a public university student. 1 3

3. The Certification Cases

A third framework for a

naly sis more aptly suits Oy ama’s claim: a set of decisions of other c ourts that h ave considered free speech c laims in the “certification” conte x t

. See generally Emily

Gold W a ldman, U

niversity Imprimaturs on Student Speech: The Certification Cases
, 11 F irst Amend. L

. Rev. 382 ( 2 013). The doctrinal bases for t h ese decisions differ: some invoke student speech d octrine

, s o me rest on public employ ee speech doctrine, and at least one p resents a

new test altog ether. T h oug h these c ases are analy z ed under different F irst Amendment doctrines, their substance echoes

13 In p art d u e to co n sid eratio n s o f acad em ic f reed o m , w e h av e d eclin ed
to ex ten d Ga rcetti to th e co n tex t o f p u b lic sch o o l teach ers. S

ee su p ra n o te 1 1

. Ev en a b s e n t G a rcetti ’ s ad d itio n al lev el o f d ef eren ce to p u

b l ic

em p l o y ers, h ow ev er, p u

b lic em p lo y ee sp eech d o ctrin e’ s “ su b stan tial d ef eren ce” to t

h e “ g ov ern m en t’ s reaso n ab l e v iew o f i t s leg itim ate in terests” f

ails to p ro v i d e th e p ro tectio n to w h i ch a stu den t at a p u

b l ic

u n iv ersity is en titled

. Umb eh r , 5 1 8 U.S. at 6 7 8

.O Y A M A V

. U N I V E R S I T Y O F H A W

A I I 28

a c o mmon theme—th e upshot is some deference to the certify ing institution, but with sig nificant limitations.

Courts g enerally defer to certification decisions based on defined professional standards. I n Keeton v. Anderson-W iley

, 6 6 4 F. 3 d 865 (11th Cir. 2011), for e x ample, the Eleventh Circuit applied Hazelwood to uphold a university ’s decision
to sanction a student in a g r aduate-level school counseling
prog r am for stating that she “intende d to attempt to convert students from being homosex ual to heterosex ual.” Id. at 868. The university c o ncluded that these statements implied a

cour s e of conduct that would “violate several provisions o f the American Counseling A ssociation’s (ACA) Cod e o f Ethics,” which the universit y “must adopt and follow

. . . in order to offer an accredited prog ram.” Id. at 869, 876. Similarly , in H

ennessy v. City of Melrose , 194 F .3d 237 (1st Cir. 19 9 9 ), the F irst Circuit applied Pickering to uphold the termination of a student teacher for repeatedly inte r r u p t ing school events w ith relig ious “prosely tiz ing ,” 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 F irst Circuit noted that the can d i d a t e ’s

r elig ious outbursts w ere incompatible with g ene ra l professional standards for preserving colleg iality and respect in the school and

, more specifically

, w ith four “common teaching competencies” r equired for state certification. Id. at 243, 247.

B y contrast, courts are more r eluctan t t o d efer to certification decisions base d o n o f f i c i a l s ’ p e r s o nal disag reement with a s t u d e nt’s views. I n W ard v. Polite

, 667 F .3d 727 (6th Cir. 2012), for ex ample, the Six th Circuit, apply ing Hazelwood

, r

uled i n f avor of a student ex pelled from a counseling deg ree prog ram for asking h er supervisorO Y A M A V

. U N I V E R S I T Y O F H A W

A I I 29

to refer a g ay c lient to another studen t counselor. Unlike in Keeton o r Hennessy
, the u niversity ’s decision appeared to r e st

on offi c ials’ personal v iews, not o n professional standards, which instead supported the “values-based r eferral[ ] ” the student requested. Id. a t 735. I n Axson-Flynn v. Johnson

, 356 F .3d 1277 (10th Cir. 2004), the Tenth Circuit adopted a similar methodolog y to evaluate the F irst Amendment claim of a Mormon student w ho withdrew f rom the U n i v ersity o f Utah’s actor training prog ram after faculty members faulted her f or refusing to use obscene lang ua ge in theatrical
pe rformances. The u niversity cited professional acting standards to justify its decision, but record evidence showed
t h a t f aculty members had ex pressed their personal disapproval of the student’s interest in being a “g ood Mormon g irl[ ] .” Id. at 1292–93. T he T e nth Circuit held that the u niversity was n ot e ntitled to summary judg ment because there was a g enuine issue of material fact “as to whether [ the university ’s] justification

. . . was truly pedag og ical o r whether it was a pretex t for relig ious discrimination.” Id. at 1293. 1 4 Thus, while these d ecisions 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 b ased on defined professional standards, and n ot on officials’ personal disag reement with students’ views.

14 S ee a lso W a tts v. Fla

. In t’l Un iv.
, 4 9 5 F.3 d 12 8 9
, 1 2 9 2

– 9 4 (1 1 t h Cir. 2 0 0 7 ) (ap p ly in g p u

b lic em p l o y ee s p eech d o ctrin e to th e claim o f a stu d en t

en ro lled in a g rad u ate- lev el so c i a l w o rk p ro g ram an d term in ated f ro m a stu d en t p racticu m at a p sy ch ia tric in stitu te f o r f ailin g to d em o n strate th e

“ pro f essi o n al co n d u ct” req u ired o f so cial w o rk ers); Ta tro v. Un iv. o f Min n

. , 8 1 6 N.W .2 d 5 0 9
, 5 2 0

– 2 1 (Min n

. 2 0 1 2 ) (articu latin g a n ew test to

u p h o ld a u n iv ersity ’ s d ecisio n to san ctio n a m o rtu ary scien ces stu d en t f or

v io latin g a stu den t co de o f p ro f essio n al co n d u ct an d p ro f essio n al
stan d ard s f

o r f u n eral serv ice ed u catio n ).O Y A M A V

. U N I V E R S I T Y O F H A W

A I I 30

4. Application

Drawing from the Su p r e me Court’s student speech a nd public e mploy ee speech p recedents a nd from the decisions o f other courts in the certi f i ca tion c o n tex t, we hold that the University of Hawaii’s decision t o deny Oy ama’s student teaching application did not offend t h e F irst A mendment because it related direc tly to defined a nd e stablished professional standards, was n a r rowly tailored to s e rve the University ’s foundational mission of evaluating O y am a ’s suitability for teaching

, and reflected reasonable professional judg ment.

( i) Dir e ctly R e lated to Defined and Established Professional Standards

The University ’s decision w as directly related to defined

a nd e stablished professional standards. Two sets of professional standards provided the foundation f o r the University ’s decision: one g overning se x u a l relationships with children and another g overning the education of disabled students. Oy ama stated that “it would be fine” for “a 12-y earold g irl” to have a “consensual” relationship with her teacher, that “the a g e of conse n t should be either 0, or whatever ag e

a child is when puberty b eg ins,” a nd that “real life child predation should be l e g al.” As the University ex plained to Oy ama, however, Hawaii Department of Education Rules prohibit s e x u a l contact between teachers and students o r minors. See Haw. Admin. Rules, § 8-54-9. F urthermore, the HT S B requires all teachers to “take all reasonable
p recautions” to protect student safety

. See HTSB C o d e o f Ethics, Principle I

. To protect a student’s “safety ,” a

se c o n d ary school teacher must protect underag e students from sex ual contact w ith adult s , which may qualify a sO Y A M A V

. U N I V E R S I T Y O F H A W

A I I 31

first-deg ree sex ual assault under Hawaii law. See H aw. Rev. Stat. § 707-730.

These standards a

r e established not only in Hawaii but als o a t a n ational level. According to one study

, the

sex ual-assault laws o f over half the states address s e x u al relationships between educators and students. See Caroline Hendrie, States Target S exual Abuse b

y Edu c a t o rs , Educ. W k

., Apr. 3 0, 2 003. Many states also require school teachers
to report suspected sex u al a buse of their students. See J ason P. N a nce & Philip T.K. D aniel, Protecting Students from Abuse: Public School District Liability for St u dent Sexual Abuse Under State Child Abuse Reporting Laws
, 36 J .L

. & Educ. 33, 3 5 (2007). The Department of E ducation has

s p e c i f i c a l l y i d e n t i f

i e d “ s t a t e e d u c a t o r c e r t i f i c a t i o n reg ulations” as a means to c o m b at the problem of sex ual abuse of children. See U.S. Dep’t of Educ., E ducator Sexual Misconduct: A Synthesis of Existing Literature 50 (2004).

T h e University ’s d ecision was also directly related to defined and established p rofessional s tandards for teaching students with disabilities. Oy ama characteriz ed special educati o n students as “fakers,” asserted that it is not reasonable to ex pect secondary school teachers to teach “the students with learning disabilities,” and voiced h is opposition
to the g oal o f “ i n cl u sion for the d isabled student.” As the university ex plained, however, its n ational accreditation body mandates t h a t student teachers demonstrate “ professional dispositions necessary to help all students l e a r n,” including students with disabilities

. S e e a l so P rofessional Development Schools

, supra , a t 25 ( ex pl a i n ing that accredited prog rams must “reflect issues o f e quity and access to knowle d ge b y diverse learners”). Moreover, the HTSB requires all student
t e achers to “[ p] rovi d e s e r v i c e s t o s t u d e n t s i n aO Y A M A V

. U N I V E R S I T Y O F H A W

A I I 32

nondisc riminatory manner” and “[ a] dapt[ ] instruction to students’ d ifferences in d evelopment

, learning sty les, streng ths a

nd needs.” F inally

, t h e p u blic schools o f every state must c omply with the I ndividuals with Disabilities Education Act (I DEA), which entitles all disabled children to

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

r el. C.L. v. Dep’t of Educ.

, 665 F .3d 1110, 1114 (9 t h C i r. 2011) (citing Pub. L

. 101-476, 84 Stat. 17 5 ( 1 9 90), c odified
at 20 U.S.C. § 1400 et seq. ). The I DEA ensures that “disabled c hildren will be integ rated 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. 2 008). The U niversit y c o rrectly identified the clear tension bet w e en these standards and Oy ama’s
statements.

The F irst A mendment does not prevent the U nivers ity from deny ing Oy ama’s student teaching a pplication a fter determining that his statements reflected a failure to absorb these defined and established professional standards. B oth student speech an d public employ ee speech doctrine
recog niz e that the scope o f the g overnmen t ’ s authority to

r eg ulate speech within its institutions depends upo n t h e objectives those insti t u t i ons are d esig ned to achieve. See,
e.g. , Fraser
, 478 U

. S

. at 685 (ex plaining that a hig h school
may reg u late speech that “would undermine t h e s c hool’s basic educational mission”); Roe
, 543 U.S. at 82 (ex plaining that a public employ er may regu l a te speech to “protect its

own leg itimate interests in perform i n g i ts mission”); Connick

, 461 U .S. at 1 50– 5 1 (“The Pickering balance requires full consideration of the g overnment’s interest in the e ffective a ndO Y A M A V

. U N I V E R S I T Y O F H A W

A I I 33

efficient f u lfillment of its responsibilities to the public.”). 1 5 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 w ithout first having obtained a license.” Haw. Rev. Stat. § 302A-805. Hawaii thus established a certification prog ram at the University of Hawaii to “ e n s u re that education professionals p ossess the appropriate training

, preparation, and competencies for teaching ,” to limit teacher l i ce n s e s t o “ k n o w l ed ge a b l e , e f f e c t i v e , a n d c a r i n g professionals,” and to confirm t h a t student teachers “[ a] c t, speak, and dress” like teachers. To fulfill its responsibilities
to the public, the U niversity may evaluate a candidate’s suitability for teaching based, in part, on his or her s p e e ch. Specifically

, the University ’s evaluation of whether Oy ama’s
statements are cons i stent w ith defined and e stablished professional standards is e ntirely compatible w ith the University ’s institutional purpose of evaluating a candidate’s suitability for the teaching

profession.

B y focusing on the relationship between the University ’s decision and the standards of the profession in which Oy ama soug h t certification, we join the other courts t h a t h ave considered free speech claims in the certification contex t,

even as we part from most of them in d eclin i ng to squeez e this case into an e x isting doctrinal framework that does not quite fit. See, e.g. , K

e eton , 664 F .3d at 869 (upholding a university ’s d ecision to sanction a g raduate s t u d e n t in a school c ounseling prog ram where the student’s statements

15 S ee g en era lly Ro b ert C. P o st, Co n stitu tio na l Do ma in s: Demo cra cy, Co mmu n ity, Ma n a g emen t 2 3 7 (1 9 95 ) (ex p lain in g th at, u n d er b oth stu d en t sp eech a n d p u b l i c e m p l o y e e sp eech d o ctrin e, “ [t]h e co n stitu t io n al q u estio n

. . . is w h eth er t h e au th o rity t o reg u late sp eech is n ecessary f o r th e ach iev em en t o f

leg itim ate in stitu

tio n al o b j ectiv es”).O Y A M A V

. U N I V E R S I T Y O F H A W

A I I 34

sug g ested that she would “violate sev e r a l p rovisions of the American Counseling Association’s (ACA) Code of Ethics, which [ the university ] was required to adopt and teach” to offer an accredited counseling p r og ram); W ard

, 667 F .3 d at 7 3 5 (ruling in favor of a student ex pelled from a counsel i n g deg ree prog ram where prof e ssional standards of ethics did not, as the u niversity arg ued, prohibit the course of conduct the student proposed to her supervisors); Tatro
, 816 N.W .2d
at 522 (upholding a university ’s decision to sa n c t i o n a mortuary sciences prog ram student whos e F acebook posts conflicted with “an e stablished professional conduct standard for mortuary science professionals”). These courts have

e mphasiz e d, as w e d o, that certification prog rams are desig ned to e n sure that their students meet the professional standards of their c h osen fields. Se e , e

. g. , Keeton
, 664 F .3d
at 876 ( “ [ T] h e entire mission of [the university ’s] counseling
prog r am is to produce ethical and ef f ec t i ve counselors in accordance with the professional requirements o f the A C A

. ” ) ; Tatro
, 816 N.W .2d at 511–12 (“[ T] he primary purpose of the
prog r am—its ‘mission’—is to prepare students to be licensed funeral directors and morticians.”). Here, the University ’s certification prog ram is “desig ne d f o r students who possess

a baccalaureate deg ree and wis h to obtain elig ibility for a license to teach.” Thus, w hile we take a different view of the applicability o f F irst Amendment doctrine to the c ertification
contex t, the certification cases further support our conclusion that the University could d en y Oy ama’s student teaching application where his statemen t s indicated that he h ad not absorbed, and likely would not c omply w i t h, defined a nd established standards for the teaching profession.

W e emphasiz e that the University did not “establish” o r “define” these professional standards by fiat. I ts decision was not, in o ther words, based on school policies u n tethered toO Y A M A V

. U N I V E R S I T Y O F H A W

A I I 35

any ex ternal standards, reg ulations, or statutes g overning the profession. I nstead, the U niversity r elied upon standar d s established b y state a

nd federal law, the Hawaii Department of Education, the H TSB
, and the University ’s n ational accreditation ag ency , the NCATE. F rom Dr. Ratliffe’s initial conversation with Oy ama to D ean Sorensen’s letter affirming the denial of Oy ama’s application, the U niversity framed its

concerns abou t Oy ama’s statements by reference to professional standards set bey o n d the walls of its o wn institution. The University t h u s compared Oy ama’s speech
not to its own idiosy

ncratic view of w hat mak e s a g ood teacher, but rather to ex ternal g uideposts t h a t establish the skill s and disposition a secondary school teacher must possess.

T h at Oy ama did not in fact consummate the ac t s proscribed by these professional standards does not mean that the University ’s decision to deny his a p p lication was not directly related to them. State policy required the University
to “[ v] e rify ” Oy ama’s “ability to funct ion effectively in Department classrooms” b efore approving h is stude nt teaching application. Therefore, t he University ’s decision
was, by necessity

, prospective in nature. Oy ama stood in the doorway of the teachin g profession; he was not at liberty to step inside and break the house r ules. B ut that does not mean that the University was oblig ated to invite him in. Rather, the University could look to what Oy ama said as an indication o f what he would do o nce c ertifie d

. C f

. Connick

, 461 U.S. at 152 (ex plaini n g t h a t a public employ er need not wait “to allow events to unfold to the ex tent that the disruption to the office is manifest before taking action”). Oy ama’s statements concerning “ child pred a tion” and “inclusion” of disabled students sug g est that he had not internaliz ed b asic concepts embodied in the relevant ex ternal standards—the natur e o fO Y A M A V

. U N I V E R S I T Y O F H A W

A I I 36

sex ual predation on children, for ex ample, or the importance of inc l u ding and supporting d isabled students. The University n eed n ot—and, consistent w ith its mandate under
state policy

, could not—have a pproved O y ama’s a

pplication and sat idly by while his failure to accept basic professional standards led to r esults t h ese standards were desig ned to prevent.

F or ex ample, with reg ard to the sex ual abuse o f children, Oy ama’s belief that y oung c hildren can meaning f ully “consent” to se x u a l activity w ith adults, and failure to appreciate the lifelong impact o n victims of child sex ual abuse, could well impede him from r ecog niz ing sig ns of such abuse in his students o r evidence of such abuse by school
personn e l. His promise to report illeg al abuse is therefore beside the p oint; he can only report what h e perceives, and his attitudes could w ell stand in the wa y of his perception. Similarly

, with reg ard to teaching di s abled children, the University was entitled to reg ard Oy ama’s insistence that
most disabilities are feig ned and that req u i r i n g hig h school teachers to educate disabled students is unre a s o n able a s indicators that h e would not make the effort to i d e n t i fy students with disabilities or adjust his lessons for individual students whose disabilities r equire special accommodations. Given these leg itimate concerns, the University could “tak[ e] action” and d eny Oy ama’s application before permitting him to enter the classroom as a student teacher. Id.

( ii) Narrowly Tailored

W e nex t a sk wh et her the University ’s decision was narrowly tailored to serve the U n iversity ’ s purpose o f

e v a luating Oy ama’s suitability f or the teaching profession. I n a v ariety o f contex ts, the F irst Amendment requires t hatO Y A M A V

. U N I V E R S I T Y O F H A W

A I I 37

restrictions on protected speech be narrowly drawn. See, e.g. , W ard v. Rock Against Racism
, 491 U.S. 781, 799 (1989) (in the contex t of the g overnment’s “time, place, o r manner” restrictions, the restriction “ must be narrowly tailored” to

serve the g o vernment’s leg itimate interests); Cent. H u d s on G a s & Elec. Corp. v

. Pub. Serv. Comm’n of N.Y

. , 447 U.S. 557, 565 ( 1980) (in the commercial speech contex t, “[ t] he
reg ulatory

technique may ex tend o nly so far as the interest it serves”); Butler v. Michigan

, 352 U.S. 380, 383 (1957) (ex plaining 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 r equirement prevents the go v e rnment from too readily ‘sacrific[ ing ] speech for efficiency .’” McCulle n v

. C o akley

, 134 S. Ct. 2518, 2534 (2014) ( quoting Riley v. Nat’l F e d

. o f Blind of N.C., Inc
., 487 U.S. 781, 7 9 5 (1988)). W e find such a requirement appropriate in this univ e r sity setting

, which provides the backdrop not only for so m e speech that the
g overnment may leg itimately r eg ulate, b u t also for much o f
t h e “discord and dissent” the F irst Amendment seeks to promote. Rodriguez

, 605 F .3d at 708. Adopti n g a narrow tailoring requirement in this contex t, we e n s ure that the Univers i t y does n ot transform its limited discretion to evaluate a certifi c a tion 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 g oal o f “employ [ ing ] and p r e p a r [ing ] educators who a re knowledg eable, e ffective, a n d c a r i n g p rofessionals.” Handbo o k

, supra , at 8. The University ’s decision p rimarily rested on Oy ama’s statements endorsing sex ual relationships between children and a dults, online a n d in “real life,” and his
statements ex pressing a

p a t h y towards disabled students a ndO Y A M A V

. U N I V E R S I T Y O F H A W

A I I 38

an unwilling n ess to a ccommoda t e their classroom needs. These statements r elated d irectly to his sui t a bility for teachin g. By contrast, the record does not sug g est that the University based its decision on speech unrelated to teaching

. The University did not, f o r e x ample, r ely upon several o f Oy ama’s statements that m a y seem b iz arre 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 U niversity

, based o n the record befor e u s , rely on statements addressing “social, political, esthetic, moral, and other ideas and ex p e riences” that a re unrelated to teaching but essential to the marketplace of ideas. Sorrel l v. IMS Health Inc.
, 1 31 S. Ct. 2653, 2674 (2011) (quoting R ed Lion Broad. Co. v. FCC , 395 U.S. 367, 390 ( 19 6 9 ) )

. T hus, rather than rely ing on any statement, no matter the subject, as a basis for its certification decision, the University limited its focus to Oy a ma’s statements that d i r ectly a ddressed the roles and responsibilities of a spiring secondary school teachers.

F urthermore, the University based its decision o nly upon statements Oy ama made in the contex t of t h e c e r tification
prog r am—in the classroom, in w ritten a s sig nments, a nd directly to the instructors respon s ible for evaluating his suitability for teaching. F o r ex a mple, O y ama asserted that “rea l l i f e c hild predation should be leg al” in a written assig nm e n t in Dr. Ratliffe’s class on “Educational Psy c holog y : Adolescence and Education.” W hen Dr. Ratliffe spoke to Oy ama after class, O y ama ex p l a i n e d that a “consensual r elationship” between a 12-y e ar-old g irl a nd another teacher would be “fine.” Similarly

, Oy ama stated that it is not reasonable to ex pect a secondary school teacher
to teach “the students with learning disabilities” in a written communicatio n t o Mr. Sieg e l, Oy ama’s instructor inO Y A M A V

. U N I V E R S I T Y O F H A W

A I I 39

“Educat i n g Ex ceptional Students in Reg ular Classrooms

– Secondary .” T h e r e is no evidence that the University relied
upon any statements Oy ama may have made out side this
contex t 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 Oy ama’s ex pressive activities in other campus-related c o n tex ts, such as meeting s with other students o r protests to u niversity officials. B ey ond the limited c ontex t in which Oy ama made the statements that supported the University ’s decision, Oy a m a was free to

ex p ress his opinions on any subject he wished. A c cording ly

, the University ’s d e c i s i on did not impose any restriction broader than necessar

y to achieve its g oal of evaluating Oy ama’s suitability

for teaching

. ( iii) Reasonable Professional Judgment

W e conclude that the F irst Amendment also r eq u i re s us to ask whether the University ’ s d ecision reflects reasonable professional judg ment a b o ut Oy a ma’s suitability for the teaching profession. A reasonableness inquiry is, of course,

a common feature of F irst Amendment doctrine. See Hazelwood

, 484 U.S. at 274–76 (student speech); Con n i ck

, 461 U.S. at 154 (public employ ee speech); see also Int’l Soc. for Krishna Consciousness, Inc. v. Lee
, 505 U

. S

. 672, 683 ( 1 992) (forum-based analy sis). Here, this inquiry is critical because not all inco n sistencies between a candidate’s
statements and defined and established professional s t a n d a r d s p r ovide a reasonable basis to conclude that the candidate i s not suitable to enter the profession. F or ex ample, the statement, “I hate cleaning my o ffice” 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 toO Y A M A V

. U N I V E R S I T Y O F H A W

A I I 40

enter the p rofession. 1 6 Absent this i nquiry

, the University could u se professional standards a s a p r etex t for decisions b ased on officials’ personal disag reement with t h e candidate’s views. A s th e T e nth Circuit ex plained in Axson-Flynn

, “we would be abdicating our judicial duty if we failed to investig ate w hether the [ professional standard] was pretex tual.” 356 F .3d at 1 292–93 (emphasis o mitted). I n this
contex t, w e may defer to the University ’s decision because o f its p r e rog ative to e v aluate p r ofessional competencies a nd dispositions, not be c ause of a blind faith in the University ’s

sense of what v iews a

re rig ht or wrong

. Consistent with this rationa l e f

or deference, we may uphold the University ’s decision only if it reflects r eason a ble p rofessional judg ment about Oy a ma’s suitability for teaching

.

The U niversity ’s decision t o deny Oy ama’s a pplication satisfies this r equirement. F irst, the University had ev e r y

reason to c onclude that Oy ama’s statements co ncerning

sex ual relationships between teachers and s t u dents were “serious matters of co n cern.” The Supreme Court has
recog niz ed that sex ual a buse “unfortunat e ly is an all too

common aspect of the e ducational ex perience.” Ge b s e r v

. Lago Vista Indep. Sch. Dist.
, 5 2 4 U

. S. 274, 292 ( 1988); see also, e.g. , Richard W inton, Ex-Marlborough School Teacher Admits Sexually A b u s i n g S tudents

, L

. A. Times, Oct. 21, 2015; Martha I rvine & Robert Tanner, Sexual Misconduct P lagues U.S. Schools

, W ash. Post, Oct. 21, 2007. According to a Department o f Education study

, “more than 4.5 million students are subject to sex u al misconduct by an employ ee o f

16 S ee g en era l ly Deb orah L

. R h o de, Mo ra l Ch a ra cter a s a Pro fessio na l Cred en t ia l

, 9 4 Yale L .J

. 4 9 1 (1 9 8 5 ) (d iscu ssin g t h e v ariety an d b read t

h of
p ro f essio n al certif

icatio n req u irem en ts, in clu d in g th e req u irem en t of

“ g o o d m o ral ch aracter”).O Y A M A V

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a schoo l sometime between kinderg arten and 12th g rade.” Educator S

e xual M isconduct

, supra , a t 1 8

. The federal government has attributed this p roblem, in part, to sch o o l officials’ recommendations of teacher candidates d e spite warning sig ns of the candidate’s potential to abuse students. See U.S. G ov’t Accountab i l ity O ff., GAO-11-200, K-12 Education: Selected Cases o f Public and Private Schools that Hired or Retained Indivi d u a ls W ith H istories o f Sexual Misconduct 3–5 (2010). I n o n e ex ample hig hlig hted b y the Go v e r n m e n t A c co u n t a b i l i t y Of f i c e , s ch o o l o f

f icials recommended a teacher for service despite complaints that he had a ccessed pornog r aphy on sch o o l computers; the teacher

w a s subsequently convicted of sex ually assaulting two students. Id. at 15–18. A perfectly reasonable way to prevent similar trag edies at Hawaii schools is to decline c ertification to candidates who vocally support sex between teachers and their twelve-y ear-old students. W e put aside the risk that Oy ama would himself abuse a student; h is statements do not sufficiently support such a p rediction, and we see no evidence that the University denied his application on the basis of this risk. Rather, the University could reasonably conclude that Oy ama w ould fail to perceive, o r to ex ercise the vig ilance needed to identify and report, potential or actual sex ual abuse of students by other adults. The University recog n iz e d these risks and appropriately made a decision, as D e an Sorensen put it, “not to place y oung children in harm[ ’] s way .”

Th e U niversity ’s concern with Oy ama’s statements reg arding d i sabled students was likewise w ell-founded. Cong r ess enacted the I ndividuals with Disabilities Education Act in response to the “apparently widespread prac t i ce o f releg ating handicapped children to private institutions o r warehousing them in special education classes.” N.D. v

. Haw. Dep’t of Educ.

, 600 F .3 d 1 104, 1 115 (9th Cir. 2 010)O Y A M A V

. U N I V E R S I T Y O F H A W

A I I 42

(citation and internal quotation marks omitted). F e deral a nd
state law mandate a commitment t o providing disabled students the services they need and promoti n g a m ore i n teg rated learning environment for all students. T h e University could reasona b l y conclude that a candidate w ho

ex p resses h is view that special education students a re “fakers” to his p r o f

e ssors would lack the professional disposition necessary

to identify

disabled students and teach all students, including those with disabilities. The University could al s o r easonably conclude that a candidate w ho considers it unreasonable t o teach both disabled a nd non-disabled students would not put in the effort to “provide services to students i n a n o ndiscriminatory manner” as a teacher.

F u r thermore, the record d e monstrates that Oy ama’s professors ex pressed concern n ot o u t of personal disag reement w ith Oy ama’s v iews but rather because of their “responsibility as a p rofession.” D r. Ratliffe, for ex a m p l e , t o l d D r. Moniz that she did not “mind that [ Oy ama] h as opinions that are different f rom o ther p eople’s” and “actually [ found] [ Oy ama’s] enthusiasm abo u t h i s o p i n i o n s r e f r e s h i ng , ” but nev e r t h eless was “concerned that [ Oy ama] may not be

aware of and in ag reement with the s a f e ty issues about the adolescents who will be in his care.” Mr. Sieg el clarified to Oy ama that h i s concerns were “not based on [ Sieg el’s] opinion” but r ather “on [ h is] 4 3 y ears as an educator,” and his understand i ng of the c riteria schools consider in hiring teachers. Even instructors w ho had initially defended Oy ama

as “ likable” ultimately concluded that Oy ama “was un s u i t a ble for t e a c h ing

. ” T he record thus d emonstrates that the University ’s certification decision r eflects profes sional judg ment, not personal disag reement with Oy ama’s views.O Y A M A V

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B. Procedural Due Process Claim

Oy ama also arg ue s that the U niversity ’s denial of his teaching application w i thout a hearing violated his Due Process rig hts under the F ourteenth Amendment. The district court properly

rejected this arg

ument.

The p remise of Oy ama’s Due Process claim is th at the University ’s denial o f his student teaching app l i c a tion

c o n s t i t u t e d “ c o nstructiv[ e] dismiss[ al] ” from the Prog ra m a n d thus deprived him of a constitutionally protected i n t e rest in remaining in the Prog ram. This premise is questionable: the P r og r a m’s handbook a dvises prospective students t h at admission to the Prog ram d o e s not g uarantee admission to student teaching

. Par t i c ipation in the Prog ram without permission to student teach is consistent with the Prog ram’s basic s t r u c t u r e ; indeed, Dean Sorensen estimated that “around 20 students annually ” are not approved for student teaching

. The d enial o f student teaching is thus more akin to the denial of access to honors-level courses on the basis o f a s tudent’s
poor g rades than to ex pulsion. S ee Hennessy
, 194 F

. 3d at 250 (ex plaining that a certification candidate’s d ue process claim

was “especially tenuous” because the university “ di d not

ex p el the a

ppellant, but merely precluded him from continuing in a particular prog ram”).

B u t even if we accept Oy a ma’s arg ument that the University ’s d ecision deprived him of a constitutionally protected interest, the University provided him with adequate
process. “W hen c onsidering cases that orig inate in an educational institution

, the law disting uishes b etween academic dismissals and disciplinary d ismissals.” Hlavacek

v. Boyle

, 665 F .3d 823, 8 26 ( 7th Cir. 2 0 1 1 )

. Academic dismissals d o n o t require a hearing and “meet[ ] theO Y A M A V

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requirements of procedural d ue p rocess so long as the dismissal decision is ‘careful and d eliberat e .’” Brown
, 308 F .3d at 954–55 (quoting Bd. of Curators of Univ. of M o.

v. H orowitz
, 435 U.S. 78, 85 ( 19 7 8 ) )

. Disciplinary dismissals, by contrast, may require more formal procedures. See Horowi t

z , 4 3 5 U.S. at 85–86 (citing Goss v. Lopez
, 419 U.S. 565, 581, 584 (1975)).

The University ’s decision to d eny Oy ama’s student teaching application was an a cademic decision. Throug hout its communications with Oy ama concerning his application, the University emphasiz ed that its decision was b a sed on the student teaching requ i r e ments described in the Prog ram’s handbook and established by professional standards. That the University ’s decision w a s based on Oy ama’s professional disposition, a

nd not his intellectual a

ptitude, does not strip it of its academic character. I n the contex t of this certification
prog r am, a central criterion for acad em ic success was a demonstration of the ability to satisfy professional standards f o r teacher certification. See Brown
, 308 F .3d at 954 (ex plaining that a university ’ s decision n o t to publish a master’s thesi s because it contained an unprofessional “Disacknowledg ements” section was “properly characteriz ed as an ‘academic’ decision”). 1 7

Horowitz supplies “ the standard for proced u r a l d ue process in the c ontex t of a ca d e m i c decisions.” Id. I n Horowitz
, a med i c a l s tudent arg ued that her school v iolated her p rocedur a l d ue process r ig ht by dismissing her from the
prog r am w ithout a hearing

. See 435 U .S. at 80–82
, 85–86.

17 A lth o u g h t

h ere w as n o m aj o rity o p in io n i n Bro wn , J u d g e R e in h ard t

co n cu rred in J u d g e Grab er’ s p ro ced u ral d u e p ro cess an aly sis. See Bro wn , 3 0 8 F.3 d at 9 5 6 (Rein h ard t, J
., co n cu rrin g in p art an d d issen tin g in p art).O Y A M A V

. U N I V E R S I T Y O F H A W

A I I 45

The Court ex plained that the student’s dismissal “rested on the academic judg ment of school of ficials” that the student lacked “the necessary

clinical ability to perform adequately ”

as a phy sician. Id. a t 89–90. The Court held that the student was not entitled to a hearing and that the university satisfied the requirements of due p r o c e s s because the school “fully informed [ the student] of the faculty ’s dissatisfaction with her clinical prog r ess and the dang er that this posed t o t i mely
g raduation and co n t i nued e n rollment” and because “the ultimate d ecision to dismiss [ the student] was c a r eful a nd deliberate.” Id. at 85.

Here, the University ’s d enial of Oy ama’s student teaching application satisfied the due p rocess requirements set forth in Horowitz

. As in Horowitz
, the Uni v e r s i ty “fully informed [ Oy ama] of the faculty ’s dissatisfaction” w i th his performance: multiple p rofessors t old Oy ama about their

concerns r eg arding his suitability for the teaching profession. The University ’s decision was also “careful a nd deliberate.” The U niversity initially ex p lained the reasons for its decision in D r

. Moniz ’s detailed letter to O y ama. The University then provided Oy ama a r o bust process for appea l i n g i ts initial decision: Dean Sorensen formed a multidisciplinary committee, which interviewed Oy a ma a n d three professors o f his choice and prepared a d etailed r eport reviewing the Dr. Moniz ’s d ecision. Dean Sorensen the n p r ovided Oy ama another letter ex p laining the committee’s findings a nd af f i r m i ng the University ’s decision to deny his application. T h i s process was sufficiently careful and deliberate to m e et the requirements of the Due Process Clause.O Y A M A V

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IV.

I n the contex t of a public university ’s pro fe s s ional certification p rog ram, the university may evaluate the student’s speech, made in t h e c o u r se of the prog ram, in determining the student’s elig ibility for certification without offending the F irst Amendment under certain circumstances. B ecause the University of Hawaii’s decision to deny Oy ama’s student teaching application directly r el ated to defined a nd established professional standar d s , w as narrowly tailored to

serve the University ’ s core mi ssion o f evaluating Oy ama’s suitability for teaching

, and reflected reasonable professional judg m e n t , the University did not violate O y ama’s F irst Amendment rig hts. I n addition, b ecause the University
g ranted Oy ama adequate proc e d u ral p rotections in deny ing hi s s t u d ent teaching a

p plication, it did n ot violate Oy ama’s due process r ig hts. Therefore, the district cou r t properly
g ranted summary

judg ment in favor of the University

.

AF F IRMED.