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Historic battle between U acting program and Axson-Flynn settled

A nearly five-year-long civil rights lawsuit involving a U student who refused to use profanity in her acting class was settled on July 13, and all parties involved say they are satisfied with the outcome.

“We were able to settle the case while preserving the academic rights of the faculty so that we can continue to teach what we feel is right,” said Larry DeVries, Academic Senate president. “Without academic freedom, the university is not a real university.”

During the 1998-99 school year, Christina Axson-Flynn filed suit against faculty members in the U’s Actor Training Program, claiming she was pressured to recite certain lines against her will in an acting class, which conflicted with her deeply held religious convictions.

As a result of this litigation, the U will implement a religious accommodation policy to allow students the opportunity to request exemptions from certain exercises that come into conflict with their creeds.

The specific phrases, which Axson-Flynn wished to be exempt from reciting in the classroom, included the “F” word and taking God’s name in vain.

That conflict subsequently led Axson-Flynn to file a lawsuit charging the faculty of the Actor Training Program with violating her First Amendment rights to free speech and free exercise of religion.

The student claimed her only choice was to use the language in question or to withdraw from the program.

“There’s an end-of-the-semester review in the Actor Training Program that is supposed to really focus on your acting and how you can improve,” Axson-Flynn said. “Instead of doing that, the meeting was really about my hang-ups with language and they informed me that I needed to get over that.”

Axson-Flynn’s attorney, James McConkie says the faculty told her she had to swear because “that’s part of being here.”

The student said the meeting left her with “more than just an impression” that she must either learn to swear or leave.

“In actuality, it wasn’t my choice. It was a forced thing,” she said. “They gave me until the end of my freshman year to figure it out and get over things.”

Given the options of denying her beliefs or accepting her supposed removal from the program, Axson-Flynn made the decision to leave.

According to McConkie, a professor asked Axson-Flynn to speak before the class and explain to them why she was quitting.

Axson-Flynn then went before her classmates and informed them that if she had to choose between forsaking her religious convictions and leaving program, she would leave.

David Dynak, chairperson of the U’s theater department, had a different take on the event.

Dynak said he met with the faculty members to discuss the issue, and separately met with Axson-Flynn on two occasions.

The faculty members in question, according to list of defendants on the lawsuit, are Xan Johnson, Sandra Shotwell, Sarah Shippobotham, Barbara Smith and Jerry Gardner.

“She was never asked to modify her values and never told that if she didn’t say certain words she would be removed from the program,” Dynak said.

“That was certainly her perception as the lawsuit unfolded and I certainly understand that she could construe things in lots of ways,” Dynak continued. “I’m very confident we did not do those things, but people construe things in different ways.”

The U’s general counsel, John Morris, echoed Dynak’s sentiments.

“We [the faculty members involved] do not agree with [Axson-Flynn’s] factual claim that she was effectively forced to choose,” Morris said.

“I wasn’t one of the professors or a witness, but we at the U have consistently denied she was forced from the program,” he said.

The U did not any wrongdoing, and the settlement prevented both sides from wasting money trying to resolve that issue, according to Morris.

In the end, neither party was declared to be in the wrong, but the settlement agreement aims to benefit all future U students without detracting from the academic freedom of the faculty.

One requirement in the settlement agreement, however, was that the U must offer readmission to Axson-Flynn and reimburse her the tuition and fees she paid during the school year in which the alleged offenses occurred, as well as providing reasonable attorney fees for the plaintiff.

Axson-Flynn sent a letter to the U declining their offer to readmit her.

She wrote that a return would not be in the best interests of the teachers, other students or herself in light of the “controversy and emotional impact that might result” from her return.

That letter was signed and dated July 12, one day before the settlement agreement-which officially required the U to offer Axson-Flynn readmission-was signed.

The legal experts in the case explained how she was able to decline readmission before being offered.

“It was understood before the agreement was signed that they [the U] would ask if [Axson-Flynn] was coming back, and we knew she wasn’t,” McConkie said.

Morris said the letter was simply a symbolic gesture.

“At the time we executed the agreement, we knew she’d already declined and the notion of her coming back was never actually in play,” Morris said.

The initial decision to take the proactive step of settling with Axson-Flynn was agreed upon by “a solid majority of the Academic Senate’s Executive Committee in an emergency meeting called during the summer,” according to DeVries.

As was the case here, the legal office and administration can come to the Executive Committee of the Senate when dealing with matters that can’t wait for a normal Senate vote in the fall.

DeVries was satisfied with the results of the effort and said the new religious accommodation policy should protect future students and faculty, as well as the university as a whole.

McConkie agrees with that assessment.

“We’re pleased because it’s a win-win result for the U and all students at U,” McConkie said. “This settlement sets up a method for dealing with allegations of religious discrimination and if the U can fashion a fair policy for all religions, they will be the leaders in that area throughout the nation.”

Overall, McConkie said he sees the result as an opportunity for the school to address an issue that has been put on the back burner or even denied by some at the U.

Axson-Flynn offered her response to the settlement as well.

“It’s a relief that it’s over because of the way it ended,” she said. “Not only is it good for me, but it’s good for everyone who will ever attend the U…The best I ever could have hoped for out of this whole thing is to make a difference.”

DeVries said it was important to preserve the academic freedom of the faculty because the matter of nondiscrimination and free exercise of religion extends far beyond the curriculum of the drama and other fine arts programs at the U.

According to DeVries, colleges and departments such as geology, archaeology, anthropology and humanities, along with the library, could have been affected by similar cases.

“In the humanities department, they show certain movies that may be of concern, and the library has had problems in the past with people trying to get certain books removed,” he said.

Axson-Flynn agreed to settle with the school in light of the U’s promised efforts to develop a religious accommodation policy and to refine its approach in dealing with potentially inappropriate or illegal discriminatory actions.

An ad hoc committee comprised of three faculty members, three students and one at-large representative is to be appointed by the U. That committee will prepare the religious accommodation policy to be implemented as early as Fall Semester.

Before the settlement agreement was signed by the two parties, the case was dismissed at a trial court. Axson-Flynn appealed and the 10th Circuit Court of Appeals heard the case under the assumption that the plaintiff’s facts were true.

Peggy Stone represented the theater department’s faculty before the Court of Appeals and argued that an exception for Axson-Flynn could open the curriculum to challenges from other students, therefore compromising both the academic freedom mentioned by DeVries and the intentions and integrity of the artist who originally wrote the materials in question.

The Court of Appeals sent the case back to the trial court, asking the question of whether the words had educational value to them or whether Axson-Flynn was being discriminated against on the basis of her religious convictions.

That is where the case stood when the settlement was reached.

“Rather than dragging this out and wasting everyone’s money, the case was settled to resolve that,” Morris said.

As for Axson-Flynn’s future, she says she will likely go somewhere other than the U, but she is leaving her options open.

“I may attend the U, just not the Actor Training Program,” she said.

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