Associated Press, Nov. 19, 2002
DENVER – The University of Utah should not be allowed to exclude a former theater student who refused to recite lines containing profanity during a classroom exercise, the student’s attorney said Tuesday in federal appeals court.
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The case is being considered by the 10th U.S. Circuit Court of Appeals.
“She’s not asking for much here, just to change words or scripts in classroom exercises,” attorney Michael Paulsen told the three-judge panel.
Omitting the offending words would not undermine the professor’s ability to teach, nor does it seek to undo the department’s curriculum, he said.
Attorney Peggy Stone, representing the theater department’s faculty, argued that an exception for Axson-Flynn could open the curriculum to challenges from other students.
She said an accommodation could compromise not only professors’ freedoms to dictate their course structures, but also artists’ intentions and integrity.
“This is an art form driven by close reads of the text,” David Dynak, chairman of the university’s theater department, said after the hearing. “The role of the actress is to find a way into the text, not to treat it as transparent.”
The university has argued that all students get the same assignment and Axson-Flynn chose to enroll in the acting program, which uses professional scripts that include swearing.
Axson-Flynn, 23, a member of The Church of Jesus Christ of Latter-day Saints, said she made the university aware of her concerns when she auditioned for the theater program. She said the school has violated her rights of free speech and religion.
U.S. District Judge Tena Campbell dismissed Axson-Flynn’s lawsuit in August, saying the offending words were part of a drama curriculum that did not take a position on religion, and required the use of profane language only as an academic exercise.
Paulsen said the U.S. Supreme Court has ruled that government officials should be reasonably aware of speech that violates students’ religious beliefs.
He said the strongest modern ruling dates to 1943 when the Supreme Court said it was OK for Jehovah’s Witnesses to abstain from compulsory flag salute exercises in school.
Axson-Flynn dropped out of the drama course after completing the first semester, then dropped out of the university. She wants to be readmitted into the program.
The three-judge panel asked attorneys for both sides to submit briefs discussing a settlement.
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