UofU and Theatre Student Settle

July 15, 2004 | 62 comments
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Christina Axson-Flynn’s lawsuit against the University of Utah garnered lots of attention, but I am not sure that we have discussed it here. The events took place in 1998, and revolve around Axson-Flynn’s experience in the University of Utah’s Actor Training Program (ATP). When she refused to use vulgar and profane language, her instructors pressured her to “get over it.” In the face of her refusal to change her views, the instructors escalated the pressure, and she ultimately decided to leave the program. In the wake of her withdrawal, she sued the University and her instructors for violating her First Amendment right to refrain from speaking and for violating her free exercise rights under the First Amendment. After losing both claims on the defendant’s motion for summary judgment in the U.S. District Court, Axson-Flynn won a double reversal at the 10th Circuit Court of Appeals. This entitled Axson-Flynn to pursue the lawsuit in the District Court, but earlier this week, the lawsuit was settled. For the settlement, see here.

The following statement of the facts comes from the 10th Circuit’s opinion in February 2004 (with expletives modified by me):

During her audition [for the ATP], Sandy Shotwell asked Axson-Flynn if there was anything she would feel uncomfortable doing or saying as an actor. Axson-Flynn replied that she would not remove her clothing, “take the name of God in vain,” “take the name of Christ in vain” or “say the four-letter expletive beginning with the letter F.” …

At the audition, after challenging Axson-Flynn’s refusal to say “f___” by giving several examples of when it might be appropriate to do so, Defendant Shotwell asked Axson-Flynn, “Well, see, it isn’t black and white, is it?” Axson-Flynn responded, “Well I guess not, and I guess it comes down to the individual actor. But as for myself, I will not say the F word, take the Lord’s name in vain, or take off my clothes.” Defendants then said “Thank you,” and the audition ended. At one point during the exchange (the record is unclear as to exactly when), Axson-Flynn said, “I would rather not be admitted to your program than use these words” and “I will not use these words.” …

Axson-Flynn was admitted to the ATP, and she matriculated in the fall of 1998. As part of a class exercise that fall, she was asked to perform a monologue called “Friday” that included two instances of the word “g______” and one instance of the word “s___.” Without informing her instructor (Defendant Barbara Smith), Axson-Flynn substituted other words for the two “g______”s but otherwise performed the monologue as written. Smith did not notice, and Axson-Flynn received an “A” grade for her performance.

A few weeks later, as part of another class exercise, Smith asked Axson-Flynn to perform a scene from the play “The Quadrangle.” Axson-Flynn was to play the part of an unmarried girl who had recently had an abortion. She expressed no concerns about the role itself. She did, however, object to some of the words that she would be required to say, which included “g______” and “f______.” Axson-Flynn mentioned her concerns to Smith, who asked why Axson-Flynn was raising these concerns now, when she apparently had no language concerns with respect to the “Friday” monologue. Axson-Flynn replied that she had omitted the offensive words from the “Friday” monologue and that no one had noticed. Smith became angry, told Axson-Flynn her behavior was unacceptable, and said that Axson-Flynn would have to “get over” her language concerns. She told Axson-Flynn that she could “still be a good Mormon and say these words.” Axson-Flynn offered to perform a different scene if she were not allowed to change or omit the offensive words, but Smith refused to allow that, saying that Axson-Flynn would either perform the “Quadrangle” scene as written or receive a grade of zero on the exercise. If Axson-Flynn received a zero, the highest grade she would have been able to receive in the class would have been a “C.” Axson-Flynn said that she would take a zero on that and any other assignment she could not complete due to her language concerns. Smith suggested that before making such a decision, Axson-Flynn should take the weekend and think about it, which Axson-Flynn agreed to do.

Shortly thereafter (the record is not clear as to when), Smith asked Axson-Flynn if she had changed her mind. Axson-Flynn replied that she had not, and that she would accept a zero. Smith then relented, telling Axson-Flynn that she “admire[d] [her] character” and that she would be allowed “to omit the language that [wa]s offensive” to her. Axson-Flynn performed the scene from “The Quadrangle” without the offensive language and received a high grade on her performance. For the rest of the semester, Axson-Flynn was allowed to omit any language she found offensive during class exercises.

At the end of the fall semester, Axson-Flynn attended her semester review, at which Defendants Barbara Smith, Sarah Shippobotham, and Sandy Shotwell were present. Defendants confronted Axson-Flynn about her language concerns and said that her request for an accommodation was “unacceptable behavior.” They recommended that she “talk to some other Mormon girls who are good Mormons, who don’t have a problem with this.” Finally, they told her, “You can choose to continue in the program if you modify your values. If you don’t, you can leave. That’s your choice.” After the review, Axson-Flynn appealed for help to Defendant Xan Johnson, the ATP’s coordinator, but Johnson told her that he supported the other Defendants’ position on the language issue.

As Axson-Flynn began her second semester in January of 1999, Defendants continued to pressure her frequently to use the language that she found offensive. To clarify the ATP’s position on the language issue, Axson-Flynn went to Sandy Shotwell, the director of the ATP. She said to Shotwell, “Sandy, this is what I understand. If I do not–and this is what you said–modify my values by the end of the semester, I’m going to have to find another program. Is that right?” Shotwell replied, “Well, yes. We talked about that, yes.” Axson-Flynn told Shotwell that she did not want to leave but that she was not going to change her mind. Shotwell replied, “Neither are we.”

Later that month, Axson-Flynn decided to withdraw from the ATP and leave the University of Utah. While she had never been asked to leave, she nonetheless apparently believed that it was only a matter of time before that would happen. After Axson-Flynn left the University of Utah, she enrolled in the acting program at Utah Valley State College. At Utah Valley State, Axson-Flynn was allowed to omit the language she found offensive.

As part of the settlement, the University of Utah has agreed to appoint a seven-member committee to develop a “comprehensive religious accommodation policy.” Axson-Flynn is to receive a refund of her tuition and fees for the 1998-99 school year (about $3,000), as well as payment of reasonable attorney’s fees (nearly $250,000). In addition, she received readmission to the ATP for the 2004-05 school year, which she declined.

With respect to student life at the University of Utah, the Salt Lake Tribune asks the right questions: “So can future theater students choose not to swear? Will a creationist biology major be forced to complete assignments on evolution? Should religious college athletes be required to play in Sunday games?” Of course, some are already bemoaning the effect of this settlement and the expected comprehensive religious accommodation policy for its chilling effect on academic freedom.

The tension between academic freedom and religious freedom is real, and working out a solution will be complex. It is interesting that all of this happens as Michael Young prepares to assume the office of President of the University of Utah. I must say, however, that I admire Axson-Flynn’s resolve. She did something important there.

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62 Responses to UofU and Theatre Student Settle

  1. Julie in Austin on July 15, 2004 at 5:37 pm

    This particular case seems like a nonstarter to me. If I follow, she told them in the audition what she wouldn’t do. If they weren’t OK with that, perhaps they shouldn’t have admitted her and that would be the grounds for the suit. But to admit her and *then* to insist that she do those things seems, to my non-lawyerly self, a violation of an (admittedly, oral) agreement. (My suspicion is that they thought that the sheltered little Mormon girl would get over herself once she had spent some time in the real world.)

    So–the more interesting question is: could a program refuse to admit a student for no playing on Sunday, not acknowledging evolution, not swearing, etc. And I just don’t know the answer to that question.

  2. Measure on July 15, 2004 at 5:37 pm

    Why does “Academic Freedom” require that the student’s freedom to follow her own morals be abridged? How does it hurt “Academic Freedom” if each student is free to act in their own way?

    Certainly if the issue was factual, as when the article mentions evolution, the School should be free to teach whatever the most current science and research is, and expect their students to learn it.

    But in this situation, are we not talking about a student being discriminated based on their conduct?

  3. danithew on July 15, 2004 at 5:39 pm

    Thanks Gordon. What a great post that was — very informative.

    As I read what was provided here I’m surprised it’s the first time I’ve seen any of it. I read so many derogatory articles and comments about Axson-Flynn in the local papers during the past years — I was sure she was a crank. Having read this and what actually happened, I think the faculty was way out of bounds and just plain nuts. And her name has been dragged through the mud here in Salt Lake City, a lot.

    How in the world could they have chosen to be so inflexible with her and to put so much pressure on her? She was clearly willing to do necessary work to fullfill what would have been very reasonable requirements They should have adjusted to her. All I can say is that they must be feeling pretty chagrined now after having to pay hundreds of thousands of dollars in attorneys fees.

    Like Gordon, I have to say that I admire her resolve.

    Movie producers and directors are way too serious about themselves and way too (if I can use the term) religious about their scripts these days. You would have thought the screenplays were written by Moses in tablets of stone at the behest of deity. They argue that we can’t remove that F-word or that nudity or that violence because it’s part of what makes the film so authentic and true-to-life. They don’t want us to even edit films after we have purchased them. It’s just absurd.

    The more I think about this the madder I get. It’s really $G&F$)@S*D# me off.

  4. danithew on July 15, 2004 at 6:16 pm

    Since the school is paying for legal fees and past tuition, it appears to be a win for those who champion religious rights. However, on pages 5-6, point 11, one reads:

    The parties are entering into this settlement as a voluntary consensual settlement of the dispute between them. Nothing in the settlement agreement shall be understood as an admission of liability or fault on the part of the University of Utah or any members of its faculty or staff.”

    Can those who are attorneys here tell us what this agreement/settlement actuall means? Do these statements mean this can’t be used as a precedent for other similar cases or does this language just sugar-coat a really bitter pill that this university and others have to swallow regarding the rights of students like this one?

  5. Kingsley on July 15, 2004 at 6:19 pm

    Hilariously, if this had been about a BYU student trying to get the swearing put back into the plays, she’d have been championed as a champion of artistic integrity, etc., and William Wallace-like cries of “Academic Freeeeeedom!” would have been for her not against her.

  6. Kaimi on July 15, 2004 at 6:28 pm

    Kingsley,

    I think the issue is not that swearing is better than no-swearing, but that theater departments don’t approve of student tampering with theatrical works. I suspect that if a student wanted to start randomly inserting swear words into Romeo and Juliet, no theater department would allow that either.

  7. Kingsley on July 15, 2004 at 6:34 pm

    Yes, randomly inserting swear words into R & J is obviously what I was getting at.

  8. danithew on July 15, 2004 at 6:36 pm

    Actually I’m sure some student somewhere is inserting swear words into Romeo and Juliet. The copyrights ran out a long time ago on those plays, didn’t they? Shakespeare is modernized and altered all the time.

    I think it’s more of an issue with contemporary writers and playwrights and the works they have created.

    Then again, I never studied the law. Tell me if I’m wrong.

  9. Hellmut Lotz on July 15, 2004 at 6:40 pm

    I like Julie’s point about the audition.

    With respect to academic freedom one might argue that it applies first to researchers and teachers, then to students. It is true that teaching is a hierarchical endeavor. The problem with this position is that the ultimate success of teaching is a student who best his or her teacher. That cannot work unless faculty is generous and accomodating.

    I had a friend who was upset about one of his fellows who refused to touch a corpse’s penis in anatomy class. My friend gleefully reported that the lecturer dressed her down in front of her peers. Great pedagogy. I am sure the medicine student was soon very comfortable with her patients’ sexuality (Just to be safe: I am being ironic). There have got to be better teaching methods than faculty and administrators ganging up on a freshman.

    On the other hand, I would be uncomfortable if a student refused to deal with evolution on religious grounds. But this case is different from the actor because reporting on research that you do not believe only requires accuracy not conviction. It is not unreasonable to expect students to report precisely. To a religious actor, on the other hand, the recitation of swear words is an immoral act. If the religious actor is called as a witness to testify in court about a case of domestic violence, for example, then we need to expect her to report accurately, including foul language.

    I am wondering if it is worthwhile to speculate about the faculty and the pressure they might have felt in a Mormon community that they were unwilling to take care of one of their students.

  10. Ryan Bell on July 15, 2004 at 6:43 pm

    Gordon, like Measure, I’m struggling to figure out how “academic freedom” is implicated here. I’m sure there is some drawn-out hypothetical where it might come up against the new U policy, but it’s hard to imagine. The hypos offered by the trib writer don’t seem to implicate academic freedom at all.

  11. Eric James Stone on July 15, 2004 at 6:47 pm

    It will be interesting to see how this interacts with copyright law regarding plays. For plays that are still copyrighted, performing an altered version of the script without permission from the playwright is a violation of copyright. So dropping swear words is not allowed. (This was an issue recently with a Neil Simon play that was to be performed in Utah County.)

  12. Greg on July 15, 2004 at 6:52 pm

    Just so it is not lost to history, we actually did have some discussion on this case back in February: Click here to check it out.

  13. john fowles on July 15, 2004 at 7:16 pm

    Kaimi: I think the issue is not that swearing is better than no-swearing, but that theater departments don’t approve of student tampering with theatrical works.

    The facts as presented in the selection Gordon provided don’t implicate that at all. Rather, the statements of the U faculty towards her seem to show that the issue really was about her religious beliefs and how the faculty thought that they were absurd (“you can still be a good Mormon and say these words”; “talk to some other Mormon girls who are good Mormons, who don’t have a problem with this”). Furthermore, the faculty made it clear that a condition for her to continiue in the program was that she “change her values.” I side with danithew is saying that this makes me very mad.

    I think that you dismissed Kingsely a little too quickly with the simple assertion that the issue is about editing pieces of theatrical works. That really avoids the real issue altogether. This was about her religious beliefs and the intolerance of them specifically. Somehow, she didn’t have the freedom of speech, or the academic freedom, to choose what words she would or would not say.

    some are already bemoaning the effect of this settlement and the expected comprehensive religious accommodation policy for its chilling effect on academic freedom

    I also chime in and ask Gordon, how would a comprehensive religious accommodation policy chill academic freedom? That doesn’t make sense. The UofU will still have all the academic freedom it wants; it’s just that students won’t be exposed to such outrageous pressure to “change their values.” Students who want the academic freedom to go around naked and say the f word will still be free to do so but people like Axson-Flynn will no longer need to be intimidated into “changing their values.” That is, the U can still teach anything it wants to teach, but if it is offensive to someone in the class, the teacher needs to make a reasonable accommodation, such as allowing her to simply omit a few profane or blasphemous words, or give her a different piece altogether. That doesn’t threaten academic freedom. The rest of the class can still do the original piece. In a sense, the status quo up until now has actually infringed on academic freedom if you consider Axson-Flynn’s academic freedom to omit offensive words from pieces in her academic program if she makes the academic and valued judgment that it is appropriate for her to do so.

    It is ironic that this girl has faced so much criticism–if the Left were really so tolerant, then it seems that they should have been tolerant of a religious girl’s desire to avoid the offensive content. Instead, the faculty ridiculed her and pressured her to change her values and the Left-leaning press vilified and criticized her for her values and beliefs, and the absurdity and illiberality of refusing to perform naked, take the Lord’s name in vain, or say the f word.

  14. Nick on July 15, 2004 at 7:19 pm

    You know, I’ve often thought the U is the only place in America where it’s acceptable to bigoted against religious minorities. Maybe this means that may change a bit?

  15. obi-wan on July 15, 2004 at 8:22 pm

    Academic freedom is rather clearly implicated here, as is the ability to maintain pedagogical standards.

    Imagine that the young woman’s religious objection is to reading particular plays or novels that she considers offensive, or viewing nude art in a humanities class. Does the instructor have a duty to change the syllabus to accommodate every religious objection to the curriculum?

    If her objection is to evolutionary theory in science classes is there some requirement that she be supplied with some alternative “creation science” text?

    Under the approach advocated by John Fowles and others, you no longer have a curriculum, you have dozens of on-demand curricula; you no longer have educational instruction, you have independent study dictated by the student’s religious preferences.

    This is not only impossible as a practical matter, it is unsound as a pedagogical matter. If the student doesn’t care to learn what the instructor has to teach, she needs to find another instructor — not try to change the program that the instructor has chosen.

    I don’t believe that the University, much less the faculty of the program, has a duty to accommodate every religious whim of the student. There are a large number of alternative schools and programs available (including the “Lord’s University”) that might be more suitable to her tastes — her “academic freedom” lies in seeking one of those programs or institutions. If she didn’t like what was being taught in a particular program, she should have left and availed herself of one of the alternatives, rather than try to tell the faculty what they would and would not be permitted to teach her.

  16. Kingsley on July 15, 2004 at 8:32 pm

    And the faculty behaved just splendidly in this case, telling her she could go ahead and skip the swear words and then changing their minds once she’d signed on.

  17. diogenes on July 15, 2004 at 8:33 pm

    I take it that Mr. Fowles believes that an atheist should be able to sign up for a U of U history of religions class and demand not to have to read biblical passages or hear comments about God? As long as he is willing to do “equivalent reading” of, say, Bertrand Russell?

  18. Kim Siever on July 15, 2004 at 8:37 pm

    As a drama student, I thought I’d offer a few comments.

    As an LDS drama student who refuses to swear, I sympathise with Christina. Luckily, however, I did not need to audition to be admitted into my faculty. When I have participated in play auditions, I have always told the director my stance on swearing and they have always been comfortable with that. However, I have yet to be cast in a mainstage play either.

    “I think the issue is not that swearing is better than no-swearing, but that theater departments don’t approve of student tampering with theatrical works.”

    That is how it is in my university, and I assume other universities are the same. However, some of my professors have been quite accommodating when I have been given a profanity-filled piece in a class assignment. So long as it is not a production (but a scene or act), a good portion of my professors are fine if I substitute or omit swear words. Many of them, however, refuse to make any accommodations and I end up getting a different scene from a different play.

    “I think it’s more of an issue with contemporary writers and playwrights and the works they have created.”

    This is correct. Not only is it an issue of copyright, but many drama/theatre professors also want to respect the playwright’s creation in its entirety.

    “reporting on research that you do not believe only requires accuracy not conviction… To a religious actor, on the other hand, the recitation of swear words is an immoral act.”

    Agreed. Writing a report on evolution and reciting profanity from a play are apples and oranges.

  19. Measure on July 15, 2004 at 8:39 pm

    Diogenes, I don’t believe your comparison holds up. I don’t see anywhere in this story where the student refused to read the passages or learn about the plays. She only refused to Perform them, which I believe is fundamentally different from studying the material.

  20. Kingsley on July 15, 2004 at 8:42 pm

    Yes, diogenes, swearing is to theater what God and the Bible are to the history of religions, exactly.

  21. john fowles on July 15, 2004 at 8:44 pm

    her “academic freedom” lies in seeking one of those programs or institutions. If she didn’t like what was being taught in a particular program, she should have left and availed herself of one of the alternatives, rather than try to tell the faculty what they would and would not be permitted to teach her.

    And so it was just fine for a state school to violate the first amendment and tell her she has to change her values if she wants to study in that program? Your anti-sceptic perspective seems to avoid that little problem. Pursuing your argument to its logical conclusion, then, the state can force a girl to say the f word and take her clothes off on stage in the interest of “educational instruction” and sound pedagogy. After all, the girl chose to study drama and so she has to do whatever the drama instructors say, or else we risk disintegration of the curriculum.

    If the student doesn’t care to learn what the instructor has to teach, she needs to find another instructor — not try to change the program that the instructor has chosen. Is there no justice for someone who has endured the violation of her first amendment rights under your view? Just go somewhere else and don’t try to study here or interfere with our enlightened curriculum.

    I don’t believe that the University, much less the faculty of the program, has a duty to accommodate every religious whim of the student. Expressly telling a student that she needs to “change her values” is much more than refusing to accommodate “every religious whim” of a student. I agree that if students were claiming that smoking marajuana was part of their religion, or public sexual orgies, for that matter, were part of their religion then the state might not need to provide religious accommodation for things that would be against public policy. But a state employee telling a student what her religion allows (“you can still be a good Mormon and say these things”) and conditioning continued participation on “changing your values” is something much different and a clear violation of the first amendment. It’s not much of a jump from that to the truly illiberal policies of France in forcing girls in public schools to remove headscarves, something unthinkable in the Muslim faith.

  22. obi-wan on July 15, 2004 at 8:51 pm

    “And the faculty behaved just splendidly in this case, telling her she could go ahead and skip the swear words and then changing their minds once she’d signed on.”

    Counselor, please show me where in the facts of the case it states that they agreed before she “signed on” that she could “skip the swear words”.

    At best it appears that they may have accommodated her on certain exercises after she had joined the program.

    Bless me, what do they teach them in these law schools?

  23. greenfrog on July 15, 2004 at 8:53 pm

    I find this situation interesting as a case of the extent to which textual integrity is respected. For probably unjustifiable reasons, I can’t help but think of Jim F’s recent comment on the thread about the illegitimacy of doctrinal interpretations of Biblical texts premised on the text being in error.

  24. Kingsley on July 15, 2004 at 8:57 pm

    I dunno, Master Kenobi, I ain’t never been to one before. I study English and Star Wars.

  25. john fowles on July 15, 2004 at 8:59 pm

    diogenes: I take it that Mr. Fowles believes that an atheist should be able to sign up for a U of U history of religions class and demand not to have to read biblical passages or hear comments about God? As long as he is willing to do “equivalent reading” of, say, Bertrand Russell?

    I don’t really think that this is the same situation. In Axson-Flynn’s case, they were expecting her to do something that she had communicated to them was against her religion. My enthusiasm for a degree of religious accommodation goes about that far too: that a student should not be forced to violate her religion just because a handful of bigots, who are state employees, hold her particular religion (and maybe religion generally, I don’t know) in derision.

    In my view, I would also protect an atheist at a state school to the same extent–I would not force an atheist to pray in class, for example, kneel before a statue of a saint, or light candles to the Virgin Mary. In fact, those things are already illegal under the first amendment. Is it too much to ask that a religious person not be forced to do something against her religion to the same extent that the irreligious are not expected to do anything religious at a state school?

    When it comes down to offensive passages in a text, I think the analysis changes. If the atheist doesn’t want to read the Bible passages, the atheist doesn’t have to take the class or can skip that part of the reading. But a history of religion class will invariably discuss religion. In the same vein, Axson-Flynn can’t object to reading the offensive passages if they are on the curriculum (in fact, if I understand correctly, she did not object to that, only to saying those words). It’s just that the state cannot force someone to do something that violates their religion.

  26. obi-wan on July 15, 2004 at 9:07 pm

    John Fowles — Your reply assumes that there has been a First Amendment violation (indeed, a “clear” First Amendment violation) which entirely begs the question.

    There is no requirement that Ms. Axson-Flynn attend the University of Utah, or that if she does so, that she study drama. Consequently, there is no “force” involved on the part of the state. She can swear or not swear, disrobe or not disrobe, just as she chooses. She may not be able to do as she chooses and remain in that particular program, but the requirements appear are entirely even-handed and not targeted at her particular faith.

  27. obi-wan on July 15, 2004 at 9:13 pm

    “I dunno, Master Kenobi, I ain’t never been to one before. I study English and Star Wars.”

    A thousand pardons. I mistook you for one of the legal types that seem to swarm around here.

    Even so, if you apply that English major to the statement of the facts, they still don’t say that the faculty told her she could “skip the swear words” before she “signed up.” Unless you and the ghost of Derrida are finding that in the intertext somewhere?

  28. john fowles on July 15, 2004 at 9:21 pm

    obi-wan: I disagree with your analysis.

    Consequently, there is no “force” involved on the part of the state. She can swear or not swear, disrobe or not disrobe, just as she chooses. She may not be able to do as she chooses and remain in that particular program, but the requirements appear are entirely even-handed and not targeted at her particular faith. This is just not the case. If her choice to remain true to the tenants of her faith cause her not to be able to remain in a program at a state school, then that violates her free exercise rights. Furthermore, it did target her particular faith: “you can still be a good Mormon and say those words.” Those words cannot be spoken by a state employee in the scope of her job. And finally, there was indeed force: she was told that unless she “changed her values” she could not continue in the program, so they were forcing her to violate her religion in order to remain. The state cannot condition something like that on someone’s religious faith.

  29. john fowles on July 15, 2004 at 9:23 pm

    Sorry, that should be “tenets of her faith.”

  30. diogenes on July 15, 2004 at 9:26 pm

    “When it comes down to offensive passages in a text, I think the analysis changes. If the atheist doesn’t want to read the Bible passages, the atheist doesn’t have to take the class or can skip that part of the reading. But a history of religion class will invariably discuss religion. In the same vein, Axson-Flynn can’t object to reading the offensive passages if they are on the curriculum (in fact, if I understand correctly, she did not object to that, only to saying those words). It’s just that the state cannot force someone to do something that violates their religion.”

    First, I think your apparent distinction between “reading” something and “doing” something breaks down rather rapidly. Reading something is doing something, and will in many cases be offensive to various religious practices.

    Second, while I don’t fully understand your use of the word “force” — no one held a gun to the woman’s head — the state can pretty clearly make violation of religious practice a requirement for participation in state programs — i.e., no yamulkes in military service; social security number is required for benefits despite religious objections, etc.

    I agree that the atheist can avoid taking the class, which also seems to have been Axson-Flynn’s recourse. I don’t see why either should have a legal claim that the class was not to their liking.

  31. MDS on July 15, 2004 at 9:28 pm

    The extreme spectres conjured by some of the replies here lead me to believe that certain commentators have not read the settlement agreement. The system that is being set up here is not one that will lead to the pedagogical miasma envisioned. Instead, it sets up a “reasonable accommodation” balancing test which looks to:

    a) the difficulty of administering an accommodation;
    b) the burden on the student’s sincerely held belief;
    c) the importance of the particular requirement to the curriculum; and
    d)the availability of reasonable alternative means of satisfying the objective of the curriculum while respecting the student’s sincerely held religious beliefs.

    What is going to come out of this is important dialogue and introspection on the part of faculty, students and administration. The solution navigates carefully between extremes. The Scylla of setting the U up as a cold anti-religious environment that will not tolerate reasonable requests is avoided, as is the Charybdis of kowtowing to unreasonable demands. I believe both the U and Ms. Axson-Flynn should be applauded for resolving the litigation in this manner (although I would have preferred they do so somewhat earlier in the game so as to spare the tax payers the expense).

  32. obi-wan on July 15, 2004 at 9:43 pm

    “If her choice to remain true to the tenants of her faith cause her not to be able to remain in a program at a state school, then that violates her free exercise rights. ”

    I don’t believe that has been a correct statement of the law since at least Smith, if not well before.

    “Furthermore, it did target her particular faith: “you can still be a good Mormon and say those words.” Those words cannot be spoken by a state employee in the scope of her job.”

    This is simply wrong. There is no constitutional prohibition, free exercise, establishment, or otherwise, on a state employee pointing out that other Mormons have resolved the dilemma of speaking the objectionable language, or that Ms. Axson-Flynn could adopt a similar resolution.

    “And finally, there was indeed force: she was told that unless she “changed her values” she could not continue in the program, so they were forcing her to violate her religion in order to remain.”

    You are playing fast and loose with the word “force” here, using it in two different senses. The fact that she was required to make an election between accepting an optional state benefit and violating her faith does not mean that she was “forced” to violate her faith in a constitutionally recognizable fashion.

  33. Julie in Austin on July 15, 2004 at 9:46 pm

    You know, as I said in my first comment, that I am not quite sure where I stand on this, but one thing that occured to me is that we do have a test-case (some would say worst-case) scenario of what happens when an institution decides that it will do whatever is necessary to be sure that no one is offended.

    It is the publishers of K-12 textbooks, who don’t want kooks on the left or nuts on the right causing them to lose giant contracts with the states. So they have these utterly bizarre rules for what can go into (or can’t go into) a literature textbook: no cats (may be associated with witchcraft), no old people sitting down (may be associated with age-ism), no one of Asian descent eating rice (racism), etc. Diane Ravitch recently wrote on this (_The Language Police._)

    Is this what we want to happen to our colleges, too? Probably not. But is there a way to avoid this without saying, “Um, sorry, you are in the religious minority here, so either suck it up or leave.”?

  34. Dave on July 15, 2004 at 10:13 pm

    While this is presented as an academic freedom issue, I think that’s being overly generous to the small minds running the U’s acting program. To me, this is clearly a case of whether professors can coerce their students into saying offensive words or performing offensive conduct to gratify their own sense of power. Throwing an academic freedom cloak over what’s going on doesn’t change the reality of what’s going on. I’d have been happier if the U had paid ten times the amount and a couple of faculty had been demoted or fired. It’s not like the fact that it’s an acting program gives the faculty some kind of exemption from legal or moral expectations that govern everyone else’s conduct.

    Lest we dismiss this as simply some little Mormon girl who won’t grow up and act like an “adult,” think how any of us would respond if our employer required us (for example) to go into a staff meeting and read a memo laced with profanity out loud to our peers, or attend an office birthday celebration with no shirt on. Alternative: implicit threat of termination. Granted, that’s an employment scenario, not an educational one, but it makes it clearer that the moral issue is coercion, not profanity. Academic freedom, as I understand it, goes to what faculty can teach or publish, not to what they can or cannot force their students to say or do by threatening to harm their academic record.

    To honor the U’s apparent commitment to profanity as a value integral to its approach to higher education, perhaps it should be referred to in the future as “Fuck U”. I (a BYU grad) once respected the U as “a real university,” but my opinion has changed of late.

  35. John on July 15, 2004 at 10:17 pm

    Perhaps she could carry a device that would emit a loud beep when she pressed a button. Then she could bleep herself out and claim that she was doing it to meet FCC decency standards just in case the play was being broadcast. Hey PBS did it.

    More seriously, what if a play required a nude scene? Would a professor require students to perform such a play? Would students be able to opt out? Would it be a copyright violation if the play were under copyright, the script calls for an actor to appear in the nude, and the play is performed with a clothed actor instead?

  36. john fowles on July 15, 2004 at 10:30 pm

    More seriously, what if a play required a nude scene? Would a professor require students to perform such a play? Would students be able to opt out? Would it be a copyright violation if the play were under copyright, the script calls for an actor to appear in the nude, and the play is performed with a clothed actor instead?

    Good question John. Since obi-wan finds my reading of what a state employee can and cannot do with regards to religion wrong, I will refrain from offering my opinion and instead ask obiwan for obiwan’s opinion here.

    If the play required a nude scene, obiwan, and the faculty were insisting that the student perform it, and the student declined saying that it violated her religion to perform naked, and the faculty responded to her (1) that it did not violate her religion, and (2) that if she did not do it, regardless of her religious concerns, that she would be kicked out of the program, then what would the result be, even after Smith?

    Also, if you don’t mind, obiwan, I would like to see your “post-Smith” analysis of exactly how what state employees did with regard to the religion of a student at a state school did not violate the first amendment. (For the record, I never implied that Smith was still good law, and just in anticipation, I do not believe that RFRA is still valid, and yes, I have read Boerne.)

  37. Steve Evans on July 15, 2004 at 10:51 pm

    Sheesh JF, talk about airing your wounded feelings! Perhaps you’d also like obi to bluebook his analysis as well.

  38. john fowles on July 15, 2004 at 11:02 pm

    I just thought obiwan came on a little strong in categorically stating that my take on the state action here was all wrong. Just following Kaimi’s example and expecting a little documentation.

  39. Ivan Wolfe on July 16, 2004 at 12:14 am

    As a former theatre (or is it theater?) major who switched to English partly because of a similar issue (among a dozen other reasons) I should have something really cool to say.

    I can’t think of anything, but it seems to me the U’s case would be a lot stronger if they had told her up front she would be required to use cuss words and if she doesn’t like that, she should go somewhere else.

    Of course, as Eugene England pointed out in his essay “Why More Utah Mormons Should Be Democrats” (or was that “Vote Democrat?”), many instructors at the UofU see their job as that of “enlightening” the besotted and ignorant masses of unthinking Mormons in their classes. This may be a case of that, where the theater department figured they could eventually “convert” her.

  40. Gordon Smith on July 16, 2004 at 1:00 am

    Hi all,

    Sorry to post and run. Lots of great comments. Here are some responses.

    Greg, thanks for the pointer to the prior discussion. I had some recollection of that and searched, but didn’t find it.

    With regard to academic freedom: Some of the possible conflicts between academic freedom and religious accommodation are probably clearer now than when I wrote the initial post. I would add that professors often try to challenge a students’ preconceived notions about a particular topic. The purpose of such an exercise is not always to convert the student, but to make the student consider his or her position more critically. If students are allowed routinely to deflect such attempts, then higher education does not stand for much.

    On the other hand, we place boundaries on professors. My students might learn something about battery if I pounded them with a baseball bat, but that is simply out of bounds. Similarly, we want to restrain professors from inflicting emotional distress or trampling someone’s First Amendment rights of speech and free exercise. The problem is in drawing lines. As I said in the initial post, “The tension between academic freedom and religious freedom is real, and working out a solution will be complex.”

    One last thing: MDS wrote, “The system that is being set up here is not one that will lead to the pedagogical miasma envisioned. Instead, it sets up a ‘reasonable accommodation’ balancing test….” I am not sure what the “pedagogical miasma” looks like, but balancing tests are notoriously difficult to enforce. In my view, universities elevate academic freedom not only out of a commitment to discovery, but also because a hierarchy of values is easier to enforce than a balancing test among relatively equal values. If academic freedom trumps all, then we minimize the number of tough cases. If academic freedom and religious freedom have equal value, then all sorts of difficult interpretive issues arise.

  41. john fowles on July 16, 2004 at 1:09 am

    Oops. Sorry about the typo regarding Smith above. That was a big one. It’s been a bad day for me for mispelling and proofreading.

  42. Ben Huff on July 16, 2004 at 2:28 am

    obi-wan, do you seriously mean to suggest that cussing is to theatre as the Bible is to religious studies? Uh, puleeeez!

  43. Ethesis (Stephen M) on July 16, 2004 at 9:53 am

    The real issue, it seems to me, is the audition, where she was very clear and they agreed to accept her with those limits.

    From the perspective, it seems that she was serious and some of the professors thought they would enlighten her later and then retaliated against her when she failed to enlighten.

    A thousand pardons. I mistook you for one of the legal types that seem to swarm around here.

    Even so, if you apply that English major to the statement of the facts, they still don’t say that the faculty told her she could “skip the swear words” before she “signed up.” Unless you and the ghost of Derrida are finding that in the intertext somewhere?

    I guess I need to quit swarming, and I look forward to seeing Obiwan blue book his comments.

    End result is that the U paid out the salaries for a score of adjuncts to gloss over abuse by professors.

    Which is the sort of thing that has caused the legislature to seriously consider gutting their funding. Can’t say that I blame them as I don’t see the value in using tax money to fund an institution hostile to the majority of the state.

    The settlement should have come out of the salaries of the professors responsible. That would have helped them find perspective of the type they were trying to share and would have taught them some important things about power and abusing it.

  44. Jordan Fowles on July 16, 2004 at 10:11 am

    obiwann said: You are playing fast and loose with the word “force” here, using it in two different senses.

    John, you’d better defer to Obi-wan on this one. Who would know more about the force besides Yoda?

  45. Last_lemming on July 16, 2004 at 10:36 am

    By admitting Axson-Flynn after she said that she would prefer not to be admitted rather than use profanity, the U implied that she would not have to use profanity. That was misleading, so a settlement in which she is refunded her tuition seems reasonable to me.

    The bigger question is how much accomodation the program should make for religious objections. I’m not sure this has to be such a big deal. If she had recited the required pieces and left out or changed some noncontroversial word, what would her grade have been? Why should her grade be any different if she were to leave out or change a controversial word? This is the equivalent of a gymnast bobbling on her dismount. So you subtract a tenth; you don’t give them a zero.

  46. John on July 16, 2004 at 11:55 am

    Last_lemming,

    Your idea about non-controversial words is interesting. However you seem to be leaving out the idea of intent. If you purposely changed a non-controversial word that would probably have more of an effect on your grade than simply goofing up. Of course they would have to catch you doing it. It sounds like they didn’t catch her the first time she changed a curse word.

    As for the gymnast comment, the gymnast is trying to stick the dismount, so while your concept of scoring applies, you are still lacking the intent. What if the gymnast refused to stick the dismount even though she was perfectly capable of it? It might never get as far as the judges. The coaches might just kick her off the team for insubordination. Of course in this situation the theater prof is both coach and judge.

  47. MDS on July 16, 2004 at 3:12 pm

    I’m just saying that the number of accommodations likely to be requested and/or granted under this system will be fairly minimal. I also think that the overall effect on the U will be small. Not all departments have curriculum that have much to do with religion in the first place. And, as one commentator pointed out, it was already illegal to discriminate based on religion prior to this settlement.

    Most of my experiences with “reasonable accommodations” are ADA-related, although we do get the occasional request for a faith-related accommodation. Often, because the individual requesting the accommodation can’t perform the requirements of the job even with the requested accommodation, nothing happens. Sometimes, the requested accommodation has such minimal implications for the employer’s bottom line that they grant it. Sometimes, the suggested accommodation isn’t reasonable, but the employer, who knows much more about its capabilties and needs with respect to alternative assignments, etc., can themselves suggest something that will work. What is important though, at least under the ADA, is that the employer engage in what is called the “interactive process” and have a dialogue with the employee.

    I just see the settlement agreement here as creating a similar system. A dialogue has to take place. During the course of that dialogue, the student can attempt to articulate why it is that their beliefs won’t let them participate in the particular portion of the curriculum they are challenging, and just large the burden is on their beliefs. The professor will have the opportunity to explain why this particular requirement has been included in the curriculum and how necessary it is to the curriculum. How much damage will removing that requirement do to the curriculum? How costly may it be to revamp the curriculum in a way that would accommodate this belief. Are there reasonable alternatives available?

    I can’t see what harm can come from this dialogue. For the majority of the academic departments at the U, it will work little or no change.

  48. Gordon Smith on July 16, 2004 at 3:21 pm

    MDS, I agree. The fact that they use the ADA jargon in the settlement agreement suggests that they were thinking along those lines. Still, I am not sure that I would want to be on that committee.

  49. Maren on July 18, 2004 at 11:15 am

    If an atheist were to be in a play in which the charater was to pray to God, that atheist would need to do it. For instance, if a person is not Jewish, should they eliminate the entire “Sabbath Prayer” song in “Fiddler on the Roof” because they do not pray in that way? The point is that the charaters are the ones who are praying, and it is also the characters who are swearing or whatever else. An actor must choose whether or not they are willing to play a part, but the character of the play is written in a certain way for a purpose. Granted, the professors should not have told her she would not have to swear and then go back on their word, nor tell her that she needed to change her morals. However, just because someone disagrees with the way a character is portrayed does not mean that the character should not be portrayed that way. If an actor does not want to do what the script calls for, do not try out for the play. If the director asks for something in rehearsal that the actor does not want to do, then the actor can express that. If the director does not remove the request, the actor can quit.

  50. obi-wan on July 18, 2004 at 6:19 pm

    Gordon — I don’t think that the “reasonable accommodation” language is ADA-derived, except to the extent that Title VII has a common pedigree. “Reasonable accommodation” is a term of art in the religious-practice-in-the-workplace cases. (Here is a string cite for Mr. Fowles’ benefit: Daniels v. City of Arlington, 246 F.3d 500 (5th Cir. 2001); Altman v. Minnesota Dept. of Corrections, 251 F.3d 1199 (8th Cir. 2001); Asselin v. Santa Clara County, 1999 U.S. App. LEXIS 10991 (5/25/1991) (9th Cir.); Knight v. State of Connecticut Department of Public Health, 275 F.3d 156 (2nd Cir. 2001); Gunning v. Runyon, 3 F.Supp. 2d 1423 (S.D. Fla. 1998); Tucker v. State of California Department of Education, 97 F.3d 1204 (9th Cir. 1996); Brown v. Polk County, Iowa, 61 F.3d 650, 658 (8th Cir. 1995)).

    It appears that the plaintiffs hoped to import the workplace standard into the educational setting, but you might check on that with your friend Burke at University of Minnesota — his colleague Michael Paulsen was Axon-Flynn’s attorney.

  51. Eugene Lang on July 19, 2004 at 1:38 pm

    I think the person who wrote this article needs to go back to his or her sources. You paraphrased a lot of the information and it clearly shows you do not know the real facts about exactly what happened.
    I feel sick that the University settled on this, its pathetic.

  52. john fowles on July 19, 2004 at 2:15 pm

    Enlighten us, Eugene.

  53. Jordan Fowles on July 19, 2004 at 2:18 pm

    Eugene,

    Prof. Smith quoted the facts right from the Tenth Circuit opinion. Although this represents the only the facts allowed onto (and introduced into) the record, it seems that Prof. Smith would be the safest in quoting the record of the court! He certainly did not paraphrase.

    Where does your version of the facts differ materially from that presented by the Tenth Circuit? It would actually be interesting to hear…

  54. Jordan Fowles on July 19, 2004 at 2:18 pm

    Eugene,

    Prof. Smith quoted the facts right from the Tenth Circuit opinion. Although this represents the only the facts allowed on to (and introduced into) the record, it seems that Prof. Smith would be the safest in quoting the record of the court! He certainly did not paraphrase.

    Where does your version of the facts differ materially from that presented by the Tenth Circuit? It would actually be interesting to hear…

  55. Jordan Fowles on July 19, 2004 at 2:24 pm

    John F: Funny that we were both responding to Eugene at the same time. Also funny how someone comes in and asserts that we have the facts wrong, but fails to say how they are wrong.

  56. john fowles on July 19, 2004 at 4:38 pm

    So true, Jordan. Also, I still take issue with obi-wan that it is not a violation of first amendment rights for a state school to condition participation in a program on changing one’s religious values or for state employees to tell a student at a state school what that student’s religion does or does not require.

    I assume that Eugene is arguing along the same line as obi-wan. Since he claims the record is inadequate, is it fair to assume that he has personal knowledge of some facts or feels that the Tenth Circuit was somehow unfair to the UofU faculty who were so insistent that Axson-Flynn was being unreasonable in wanting to abide by what she felt were the tenets of her faith, and which she expressed to the faculty from the outset?

  57. Gordon Smith on July 20, 2004 at 4:43 am

    With regard to the debate about the facts, one of the things I emphasize with my first-year students is that the facts recited in judicial opinions are only those fact that the court selected as relevant. Often, these are the facts that most powerfully support the court’s conclusion. For this reason, one of my colleagues calls judicial opinions “fables,” and despite appearances, he does not mean that in a derogatory sense.

    Recognizing this, I almost qualified my initial post by writing “I admire the resolve of anyone who could act in the way described by the court,” rather than “I admire Axson-Flynn’s resolve.” But that seemed overly cautious in this forum, even though the opinion was written in response to a summary judgment motion and not after a trial.

    The bottom line is that Jordan and John read my post exactly right: I was trying to take the safest route by quoting the facts in the latest judicial opinion, rather than risking error by paraphrasing. And I agree that Eugene should offer more than invective to support his claim of error in those facts.

  58. John on July 21, 2004 at 10:01 am

    I would guess that “Eugene” is trolling, and has done quite well for himself. I would love to be wrong and see details from him, but it would truely surprise me.

  59. Jeff Axson on July 23, 2004 at 12:23 am

    Hello,

    I am Christie Axson’s biological father (the Axson part of Axson-Flynn). I have sat on the sidelines over the past years as I have watched by daughter fight her battle of principle against the University of Utah.

    I have been extremely proud of her. She has stuck to her guns, and fought for a settlement that even though it is does not establish legal precedent, it will establish a procedure at the University that will benefit many people in the future.

    Because of the ongoing legal procedures during the past 4 years, I was careful not to say or write anything that would interfere with the direction the lawyers were taking the case.

    With the case now settled, I feel it important to go on record to support Christie and correct some of the things that have been said unjustly about her and the case.

    It was very difficult for me, especially when it came to holding my tongue against those who were so quick to malign my daughter. Often this would take the form of a mistatement of fact (for example, I read someone write “If only she had gone to her professors instead of bringing the lawsuit.” She did – many times), incorrect information (for example, It is against the law to change the words in a play. This is not the case in an academic setting where the play is performed non-commercially), or character assassination (Miss Goody Two Shoes).

    I must say, that when this first began, I was not so sure that she should take on such a large battle. So many time, over the years, I have witnessed valiant people charging up the hill, only to find their compatriots falling by the wayside as they would withdraw their support. Christie has weathered all of these things and again, I am very proud of her.

    Unfortunately, I have lived 3000 miles away from my two children as they have grown, but I remember well the call I received from Christie after she had done her original audition for the Actor Training Program at the University of Utah. She thought she had done well (after all, she was one of the best drama students to come out of a Utah High School the year of her graduation), but she told me of how they asked her the situational questions of what she would do if given parts or dialogue that challenged her values. She told me “I guess I’ll never hear from them.”

    A couple of months later, she called, all excited. “They accepted me into the ATP program, Dad,” she said. When I asked her about her conditions, she told me that they had accepted them with their invitation, given how clear she had been with them during direct questioning.

    What a disappointment it was for me to see the continual degradation of that agreement over the semesters. The university might talk about “Academic Freedom,” and Christie might fight for the rights to practice your Religion, but I viewed the whole thing as a matter of honor, and I could not believe that the University would be so dishonorable, as to renege on the agreement that they had made in orginally admitting Christie into the program, given her stated values.

    As I view the challenges Utah faces after being away for approximately 15 years, I am saddened by the deep divisions that seem to run through the state. May I say, that I wish Utahns would see that there is so much more that should hold you together, than those things that seem to be ripping you apart. I call upon all people of good will, no matter what your position on a matter to be, that you handle discussions with good faith, and that when agreements are made, that they are carried out with honor.

    I will now finish writing. Much more will be discussed, I am sure, but I now feel at peace having been able to go on record as the proud father of a very courageous woman.

    Sincerely,

    Jeff Axson
    Guelph, ON Canada

  60. Gordon Smith on July 23, 2004 at 2:52 am

    Thanks for that, Jeff. As you can tell from the initial post and subsequent comments, your daughter has won many fans here. From the news accounts, it appears that she continues to pursue an acting career, in addition to being a mother. Does she feel that her experience at the University of Utah has limited her opportunities? Or has the publicity from the lawsuit brought new opportunities to her door?

  61. Jeff Axson on July 23, 2004 at 12:19 pm

    Currently Christie is busy raising her daughter while trying to help her supportive husband, Doug, as he pursues his educational goals while working full-time. Her goal to be an actress is certainly secondary to many family goals that she has.

    But I have noticed that most people who possess a God-given talent to perform, will find some way to bring that forward in their lives, either within the context of their vocation, or as an avocation.

    Christie never started this lawsuit with the idea of “What will this mean to my career. Will the publicity help or hinder me as an actress.” Obviously, every one has their opinion on what the ramifications will be. She honestly wanted to right a wrong. Not for just herself, but for others who followed in the future.

    Just before the announcement of the settlement, she shared with me that she was looking forward to getting out of the public light. She said that people’s perception of her for most of her adult life has been defined by this lawsuit, and she was now anxious to redefine herself on her own merits. Because she is a wonderful, caring person, I know she will do fine in whatever she chooses to do.

  62. Ethesis (Stephen M) on July 23, 2004 at 11:44 pm

    Well, the AP line I just read, seems to agree with the lawyers.

    Interestingly enough, she has parents in theater.

    The University of Utah agreed Wednesday to let students opt out of activities that conflict with their religious beliefs, settling a lawsuit brought by a Mormon drama student who refused to recite lines that contained the f-word and took the Lord’s name in vain.

    Christina Axson-Flynn, 24, had sued the university in federal court, accusing it of violating her to right to freedom of speech and religion.

    She said that after refusing to recite the lines in an acting class during the 1998-99 school year, she feared theater department professors would retaliate against her, so she withdrew from the university.

    Under the settlement, she will be reimbursed $3,000 to $4,000 in tuition. The university also agreed to let her re-enroll, although Axson-Flynn said she planned to attend a different school.

    University of Utah attorney John Morris sought to ease some professors’ fears that under the settlement, students would be able pressure faculty to change the curriculum.

    Under the settlement, a student’s request to be excused from a class exercise on religious grounds will need the approval of a professor, a dean or a university vice president.

    University officials said in the past, students could be excused from exercises for religious reasons, but the settlement establishes a policy.

    Axson-Flynn said she still plans to pursue acting and does not think she will have trouble in the industry because of her beliefs. She said her mother, a stage actress, and her father, also an actor, have been successful despite their religious convictions.

    “I wouldn’t have a hard time at all making a career in acting holding to morals, no matter what those morals were,” she said.

    Copyright 2004 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

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