The plaintiff was a graduate student who enrolled in? the? University? of? Hawaii?s? secondary education certification program with the purpose of?? obtaining?? a?? teacher?s?? certificate.?? While enrolled in the program Oyama made comments that a sexual relationship between adults and children should be legal so long as the child consented, regardless of the child?s age. These comments and similar other comments created concern among the faculty. When confronted about his comments, Oyama stated that he would obey?? state?? law?? to?? the?? contrary,?? but?? still maintained is opinion. ?Oyama also expressed his opinion?? that?? nine?? of?? ten?? special?? education students he encountered were ?fakers,? and questioned professional diagnosis to the contrary. He also received some ?unacceptable? field evaluations. Oyama?s application for a teaching certificate was denied based upon his opinions which were deemed inconsistent with existing legal? requirements? and? recognized? professional standards. The University also relied upon unacceptable field ratings.

Oyama filed an administrative appeal. The grievance ?committee ?concluded? that ?Oyama ?should not be allowed to student teach since dispositions as well as comments and statements made during classes and our interview are serious matters of concern.? It also found that the University committed two violations of its own procedures: it failed to timely notify Oyama of the standards for advancement in the academic program, and it failed to provide Oyama with his field experience evaluations. The University proposed reimbursing Oyama for certain expenses and? ?allowing? ?him?? to? ?withdraw? ?from?? certain courses, on the condition that Oyama release all claims related to his participation in the program. Oyama rejected the offer and filed suit alleging a violation of his First Amendment and Due Process rights. The District Court granted summary judgment and the plaintiff appealed.

On appeal, the Ninth Circuit recognized the hybrid nature of the circumstances involving both the public employee speech and student speech doctrines. It refused, however, to apply the student free speech doctrine to graduate level students. In reference to the public employee doctrine, the plaintiff argued that he was retaliated against for speech and the Pickering doctrine required that the court balance ?the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.? The court rejected this argument also because Oyama was not a government employee. Rather, he was an applicant for a government program which might ultimately result in government employment. Instead, the court relied upon a certification line of cases addressing First Amendment concerns. Applying? this? line? of? cases,? the? court acknowledged that ?courts generally defer to certification? decisions? based? on? defined professional ?standards,? ?but ?are ?generally ?less deferential when officials merely disagree with a student?s views. The court held ?that the University of Hawaii?s decision to deny Oyama?s student teaching application did not offend the First Amendment because it related directly to defined and established professional standards, was narrowly tailored to serve the University?s foundational mission of evaluating Oyama?s suitability for teaching, and reflected reasonable professional judgment.?

The court also denied Oyama?s procedural due process ?claim ?because ?the ?decision? to ?dismiss him was academic. Academic dismissals, as opposed to disciplinary dismissals, do not require a hearing and due process is satisfied ?so long as the? dismissal? decision? is? ?careful? and deliberate.?? Summary judgment was affirmed.
Oyama v. University of Hawaii, — F.3d —- (9thCir. 12/29/2015) (Wardlaw, Berzon, Owens).