Yesterday, Judge Patrick Duggan of the U.S. District Court for the Eastern District of Michigan dismissed former student Joe Corlett’s free speech lawsuit against Oakland University in a deeply flawed opinion (PDF) that has broad and troubling implications for free speech on campus.
While there is much to be said about this opinion, for now I want to briefly highlight its two most troubling aspects. First, the judge held that non-academic discipline (e.g., conduct code charges) is an acceptable response to speech deemed inappropriate for a classroom setting. Second, in deciding this case—which involves an adult college student—the judge relied heavily on cases involving the free speech rights of elementary and secondary schoolchildren.
We understand that Corlett’s expression in this case—entries in his creative writing journal expressing his sexual attraction to his creative writing instructor—is unlikely to garner much sympathy. But even unsympathetic speech is protected by the First Amendment, and the university’s actions in this case go far beyond giving Corlett a poor grade or even asking that he transfer to a different writing class. In this case, the university charged him with “Unlawful Individual Activity” and suspended him for three semesters, during which time he was physically barred from campus. The university did this despite the fact that his creative writing assignments did not rise to the legal definition of sexual harassment, obscenity, or any other type of unprotected expression that might legitimately give rise to disciplinary action.
In his opinion, Judge Duggan held that “Plaintiff’s expressions of lust for Mitzelfeld or descriptions of her physical appearance are not entitled to First Amendment protection.” He acknowledged that they might be protected in other, non-classroom, settings (such as a “karaoke bar”), but held that when “directed at one’s professor” in the context of a “classroom assignment,” they were not. He then concluded that because the speech was not protected, it was not the court’s business to judge the appropriateness of the university’s sanctions.
Incredibly, the judge reached this conclusion without considering whether Corlett’s comments were, in fact, actionable sexual harassment, stating that “[i]t matters not whether Plaintiff’s Daybook writings satisfied the legal definition of obscenity or sexual harassment.” And, in an ironic twist, the judge rejected Corlett’s argument that the policy he was disciplined under was overbroad because “the terms ‘intimidate’, ‘harass’, ‘threaten’, and ‘assault’ each have ‘long-established legal definitions.’” So according to Judge Duggan, Oakland University’s policy passes constitutional muster because it includes terms with legal definitions—even though Judge Duggan didn’t find it necessary to limit the application of the code to conduct that met those definitions.
In holding that a university may suspend a student for speech that would be protected outside the classroom, Judge Duggan relied heavily on the Sixth Circuit case of Settle v. Dickson County School Board, 53 F.3d 152 (6th Cir. 1995). The Settle Court ruled that a teacher did not violate a junior high school student’s free speech rights by “refusing to accept a research paper entitled ‘The Life of Jesus Christ,’ and by giving her a ‘zero’ for failing to write on another topic.”
Settle was a case about grading, and Judge Duggan’s reliance on it in this case is misplaced and dangerous. The court in Settle explicitly based its holding on a teacher’s “broad authority to base her grades for students on her view of the merits of the students’ work.” Had the school instead attempted to impose disciplinary action such as suspension or expulsion upon this student because of her attempts to turn in an overtly religious term paper, I doubt very much the court would have upheld the school’s actions. Remember: Corlett didn’t receive a bad grade. He was found guilty of “unlawful activity” and banned from campus for three semesters.
Yet here, Judge Duggan cites Settle to rule that any speech that a professor deems inappropriate in the classroom setting may legitimately give rise not only to a poor grade, but also to disciplinary action against the student. This is a terrible precedent, and one that has far-reaching implications for students’ ability to express their opinions freely in class.
Also deeply troubling is Judge Duggan’s heavy reliance on cases involving the free speech rights of schoolchildren to decide a case involving a middle-aged college student and his middle-aged writing professor. While briefly acknowledging that “universities arguably may not bear the same responsibility as elementary and secondary schools to act in loco parentis,” Judge Duggan approvingly cites case after case from the elementary and secondary school settings. Given that college students are overwhelmingly adults, the notion that their free speech rights are significantly diminished by enrolling in a public university is a disturbing one. So, too, is the notion that the government suddenly has some greater interest in civilizing them than if they had chosen to enter the workforce.
The opinion is worth a read in full, and FIRE will have more to say about it in the days to come.