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.