The University of New Mexico and one of its professors will face trial on a charge of violating the constitutional rights of a student punished for expressing her opinions  about lesbianism in a class described by the instructor as having “controversy built right into the syllabus.”

Chief U.S. District Judge M. Christina Armijo denied a motion by the university to dismiss a case brought by student Monica Pompeo, who claimed she was improperly dismissed from the class for describing lesbianism as perverse in an assigned critique of a lesbian romance film.

The course, “Images of (Wo)men: From Icons to Iconoclasts,” was taught by professor Caroline Hinkley in 2012.

Judge Armijo, in her Sept. 29 order, wrote that the First Amendment “violation in this case arises from the irreconcilable conflict between the all-views-are-welcome description of the forum and [the professor’s] only-those-views-with-which-I-personally-agree-are-acceptable implementation of the forum.”

Hinkley wrote in the syllabus: “It’s quite clear that we do not expect anyone to necessarily agree with the positions and arguments advanced in our work. There’s controversy built right into the syllabus, and we can’t wait to hash out our differences.”

But when she assigned students to watch and write about “Desert Hearts,” a 1985 lesbian romance film, Pompeo said Hinckley refused to read beyond the first two pages of her harsh critique. The professor described Pompeo’s opinion as “inflammatory and offensive” hate speech and said it would be in her best interest to drop the class.

The movie, set in the 1950s, tells the story of a woman who arrives to get a divorce and “finds herself increasingly drawn” to another woman, “an open and self-assured lesbian.”

The judge noted that “due to Hinkley’s hostility, including her refusal to assign a grade to plaintiff’s critique,” Pompeo withdrew from the class.

Noted law professor, legal analyst and writer Eugene Volokh, writing at his Volokh Conspiracy, pointed out Hinkley’s supervisor, Susan Dever, also warned there would be “consequences” because of Pompeo’s opinion.

The school officials “acted to suppress a viewpoint [they] found personally offensive, rather than for a legitimate pedagogical reason,” Volokh said.

The judge said there were three questions to be addressed: Was the speech protected, in what forum did the speech occur and what about restrictions on student speech allowed for pedagogical reasons?

“The first two inquiries are not seriously in dispute. Defendants conceded that plaintiff’s speech is protected by the First Amendment and all parties agree that under governing 10th Circuit precedent a university classroom is a nonpublic forum,” the judge wrote.

“As to the third inquiry, defendants maintain that a university can restrict a student’s curricular speech so long as the restrictions are reasonable related to legitimate pedagogical concerns.”

Armijo wrote that Pompeo agreed, but she explained that the university was imposing viewpoint-based discrimination in violation of the law.

“Plaintiff has made out a case that no reasonable educator could have believed that by criticizing lesbianism, plaintiff’s critique fell outside the parameters of the class, given the description of the class set out in the syllabus,” she wrote.

“The court questions whether a university can have a legitimate pedagogical interest in inviting students to engage in ‘incendiary’ and provocative speech on a topic and then punishing a a student because he or she did just that. Simply because plaintiff expressed views about homosexuality that some people may deem offensive does not deprive her views of First Amendment protection. Plaintiff has made out a plausible case that Hinkley ostracized her because of Hinkley’s personal disagreement with plaintiff’s ideology, and not for legitimate pedogogical purpose.”

The judge concluded that “views opposing homosexuality are protected by the First Amendment and that the government is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one.”

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