Monica Pompeo and her attorney, Bob Gorence, have filed an appeal to the 10th U.S. Circuit Court of Appeals in Denver.
Her First Amendment violation lawsuit received national attention when she filed in it 2013.
Based on initial court documents filed in the case, civil rights and free speech advocates slammed UNM’s treatment of the student.
A federal judge initially refused UNM’s request to dismiss the case, further fueling criticism of the university’s free speech practices.
But that same judge, M. Christina Armijo, said in her dismissing order in September that at that time she had not seen Pompeo’s paper or the professors’ responses and that the court “erred” in denying the university’s first request to dismiss the case.
Armijo wrote that the further investigation into the case showed Pompeo’s professors offered her numerous opportunities to rewrite her essay to adhere to academic standards or to take alternative academic routes to achieve her class grade.
The dismissal also says that Pompeo’s professor, Caroline Hinkley, was “personally offended” by Pompeo’s views, but that the law was not clear enough to allow the court to decide if that “subjective hostility to a student’s viewpoint” was within the scope of teaching.
Pompeo originally claimed she had been ostracized, even kicked out of class, after she expressed anti-gay views in an essay about a lesbian film as part of an upper-level film critique class. She claimed the professor refused to grade her paper.
The dismissal order shows Pompeo, Hinkley, and her boss, Susan Dever, went through numerous rounds of emails, meetings and phone calls.
The professors attempted to explain to Pompeo that her assertions in her “critical and analytic paper” needed to be substantiated in accordance with academic standards. Otherwise, they remained opinions, and the assignment was not an opinion paper.
For example, the ruling shows that in Dever’s professional suggestions to Pompeo on rewriting her paper, Dever suggested Pompeo change the word “barren” in her paper to “childless” as Pompeo described the “wombs” of the lesbians in the film.
Dever said “childless” had a less derogatory tone, to which Pompeo replied, “And I will probably use the word ‘BARREN’ it is my choice; I don’t like to be told what words I may and may not use, ever.”
And Hinkley asked Pompeo to back up her statements about homosexuality, writing on the margin on Pompeo’s paper: “Why is attraction to the same sex perverse? This is a strong statement that needs critical backup. Otherwise it’s just inflammatory.”
At one point, Hinkley told Pompeo that some of her language in the paper could be considered hate speech, according to court documents. And Pompeo told Hinkley that some of the films in the class were “unendurable,” to which Hinkley replied there would likely be more such films. Pompeo reported this made her feel she was being pressured out of the class.
Armijo ultimately ruled that the professors’ conduct and attempts to change how Pompeo used her language was, to summarize the ruling, within the scope of teaching and was not a violation of her constitutionally protected right to free speech but noted the law was vague on the issue.
The federal appeal has been filed and is currently in the mediation stage, according to court records. The next hearing in the case is set for January.