356 F.3d 1277 (10th Cir. 2004), 01-4176, Axson-Flynn v. Johnson

Docket Nº:01-4176.
Citation:356 F.3d 1277
Party Name:Christina AXSON-FLYNN, Plaintiff-Appellant, v. Xan JOHNSON; Sandy Shotwell; Sarah Shippobotham; Barbara Smith; Jerry Gardner; and John Does 1-20, Defendants-Appellees, and Michael J. Broyde; J. Budziszewski; Shalom Carmy; Louis Dupr
Case Date:February 03, 2004
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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356 F.3d 1277 (10th Cir. 2004)

Christina AXSON-FLYNN, Plaintiff-Appellant,

v.

Xan JOHNSON; Sandy Shotwell; Sarah Shippobotham; Barbara Smith; Jerry Gardner; and John Does 1-20, Defendants-Appellees,

and

Michael J. Broyde; J. Budziszewski; Shalom Carmy; Louis Dupré; C. Stephen Evans; John Farina; Barry Freundel; Paul Griffiths; Wayne Grudem; Stanley A. Hauerwas; Gregory A. King; Robert L. Millet; David Novak; Alvin Plantinga; Gedaliah Schwartz; Max L. Stackhouse; Walter Sundberg; Charles Taliaferro; John Witte, Jr.; Nicholas Wolterstorff; Ira Youdovin; American Association of University Professors; Industry Professionals and Professors; Christian Film and Television Commission, Amici Curiae.

No. 01-4176.

United States Court of Appeals, Tenth Circuit

February 3, 2004

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Michael S. Paulsen, Professor, University of Minnesota Law School, Minneapolis, Minnesota (Steffen N. Johnson and David W. Fuller, Mayer, Brown, Rowe & Maw, Chicago, Illinois; James W. McConkie and Bradley H. Parker, Parker & McConkie, Salt Lake City, Utah; Stephen M. Shapiro, Mayer, Brown, Rowe & Maw, Washington, D.C., with him on the briefs), for Plaintiff-Appellant.

Peggy E. Stone, Assistant Utah Attorney General (Mark Shurtleff, Utah Attorney General, with her on the briefs), Salt Lake City, Utah, for Defendants-Appellees.

Gene C. Schaerr, Nicholas P. Miller and Achiezer Guggenheim, Sidley Austin Brown & Wood LLP, Washington, D.C., filed an amici brief for Michael J. Broyde, J. Budziszewski, Shalom Carmy, Louis Dupré, C. Stephen Evans, John Farina, Barry Freundel, Paul Griffiths, Wayne Grudem, Stanley A. Hauerwas, Gregory A. King, Robert L. Millet, David Novak, Alvin Plantinga, Gedaliah Schwartz, Max L. Stackhouse, Walter Sundberg, Charles Taliaferro, John Witte, Jr., Nicholas Wolterstorff, and Ira Youdovin, amici curiae in support of Plaintiff-Appellant.

Roger J. Magnuson, Sarah M. Thier, Dorsey & Whitney LLP, Minneapolis, Minnesota, filed an amici brief for the Christian Film and Television Commission and the Industry Professionals and Professors in support of Plaintiff-Appellant.

J. Joshua Wheeler, Robert M. O'Neil, Charlottesville, Virginia; Donna R. Euben, Washington, D.C.; David M. Rabban, Austin, Texas, filed an amicus brief for The American Association of University Professors in support of Defendants-Appellees.

Before SEYMOUR, HOLLOWAY, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

In 1998, Plaintiff Christina Axson-Flynn entered the University of Utah's Actor Training Program (ATP). Axson-Flynn, who is Mormon, refused to say the word "fuck" or take God's name in vain during classroom acting exercises. During Axson-Flynn's first semester in the program, Defendants--all ATP faculty members--told Axson-Flynn to "get over" her refusal to use those words, saying that not using the words would stunt her growth as an actor. Axson-Flynn did not "get over" her refusal to say the words and eventually left the ATP (and the University of Utah) before the end of her second semester; although never ordered to leave, she assumed that she would eventually be forced out.

Axson-Flynn then brought this action under 42 U.S.C. § 1983, claiming that Defendants had violated her free speech and free exercise rights under the First Amendment. She argued that requiring her to utter certain offensive words when performing a script constituted "compelled speech," and that not accommodating her religious beliefs violated her free exercise rights. The district court granted summary

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judgment to Defendants on both claims and found that they were also entitled to qualified immunity. Axson-Flynn filed a timely notice of appeal.

We take jurisdiction pursuant to 28 U.S.C. § 1291 and REVERSE and REMAND.

BACKGROUND 1

In 1998, Plaintiff-Appellant Christina Axson-Flynn ("Axson-Flynn"), a member of the Church of Jesus Christ of Latter-day Saints ("Mormon church"), applied to the University of Utah's Actor Training Program (ATP). As part of the application process, she attended an audition conducted by ATP instructors Barbara Smith, Sandy Shotwell, Jerry Gardner, and Sarah Shippobotham (hereinafter "Defendants"). During her audition, 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." Although the record is unclear as to whether Axson-Flynn explained at the time why she had those objections, the district court summarized her reasons as follows:

[H]er refusal to use the words "God" or "Christ" as profanity is based on one of the Ten Commandments, which prohibits believers from taking "the name of the Lord thy God in vain...." Exodus 20:8. Plaintiff has also explained that her refusal to say the word "fuck" is due to the fact that it is religiously offensive to her because she finds that it vulgarizes what Plaintiff, as a Mormon, believes is a sacred act, appropriate only within the bounds of marriage.

Axson-Flynn v. Johnson, 151 F.Supp.2d 1326, 1328 (D.Utah 2001).

At the audition, after challenging Axson-Flynn's refusal to say "fuck" 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 later explained in her deposition that she did not ask Defendants if they understood her position, because "they're intelligent people. And I would assume that if you say: I will not do this, that they comprehend that. They're teachers."

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 "goddamn" and one instance of the word "shit." 2 Without informing her instructor (Defendant Barbara Smith), Axson-Flynn substituted other words for the two "goddamn"s but otherwise performed the monologue as written. Smith did not notice, and Axson-Flynn received an "A" grade for her performance.

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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 "goddamn" and "fucking." 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. Axson-Flynn, 151 F.Supp.2d at 1329.

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. Axson-Flynn, 151 F.Supp.2d at 1329.

As Axson-Flynn began her second semester in January of 1999, Defendants continued to...

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