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Creeping Someone Out Does Not Equal Threats or Intimidation

Last week, FIRE drew attention to a free speech case at Oakland University near Detroit, which wildly overreacted after a student wrote in his writing journal for class that he was attracted to his professors. Student Joseph Corlett appears to have been charged with no crime outside of campus, but Oakland found him guilty of "unlawful individual activities," even though the journal assignment specifically permitted students to write creatively about any topic. Corlett was suspended for three semesters, barred from campus, and required to undergo "sensitivity" counseling. That's right: Far from seeing Corlett as the next Virginia Tech shooter, Oakland explicitly labeled insensitivity as Corlett's problem.

I will go into more detail on the allegations in my next post, using documentary evidence so that everyone can judge the facts for themselves. Here, I focus on the huge difference between being perceived as creepy and insensitive, on the one hand, and making threats, intimidating, or harassing someone on the other hand. As I said to Inside Higher Ed for an article published this morning, "It is not against the law to be—or to be perceived as—a creep." And as I wrote back in 2007, insensitivity is not a crime.

For one thing, to lose First Amendment protection as "intimidation," the speech in question must be "a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." That's the Supreme Court's definition of intimidation in Virginia v. Black (2003). As FIRE President Greg Lukianoff wrote a couple of years later, feeling "intimidated" does not equal intimidation.

Indeed, a person's subjective feeling is not the same thing as intimidation under the law. The Supreme Court has made clear that a threat or intimidation requires the speaker to intend to voice "a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." I have seen nothing that comes at all close to this standard in Corlett's case, and I urge you to read the materials and make your own decision.

FIRE has been fighting such overreactions in a variety of cases for a long time. For example, Ursula Monaco was a 55-year-old grandmother and a student at Suffolk County Community College who also had been a vehement critic of the university. In a misdirected email back in 2003, she used the so-called c-word to refer to a professor. Because she had used such language, she was found guilty of "verbally abusing, threatening, intimidating, harassing, coercing or engaging in any other conduct that threatens or endangers the health or safety of any person."

In 2007, Valdosta State University expelled student Hayden Barnes, who had peacefully been protesting the construction of new parking garages, on the ground that he was a "clear and present danger" to the campus. In that case, which continues in court, the university's president lost his qualified immunity, leaving him personally liable for damages.

And last September, the University of Wisconsin-Stout reported a professor to the "Threat Assessment Team" because of what he had posted outside his office door. Stout's police chief first removed a poster with a picture of actor Nathan Fillion of the sci-fi television series Firefly and a quotation from the show from outside the office door of Professor James Miller. The police officer stated that the poster was unacceptable because it "refer[red] to killing" and "can be interpreted as a threat by others." Days later, the same officer removed another posting outside Miller's door that read "Warning: Fascism" and mockingly stated that "Fascism can cause blunt head trauma and/or violent death." The university's threat assessment team was activated by the posters despite their obviously satirical content.

In all three of those cases, the school backed down. None of these people threatened or intimidated anyone through their protected expression. If they had, we would have seen very different outcomes, such as criminal charges in the real-world criminal justice system.

Second, the standard definition of actionable student-on-student harassment ever since the Supreme Court's ruling in Davis v. Monroe County Board of Education (1999) has been conduct that is "so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit." By definition, this includes only extreme and usually repetitive behavior, directed at the victim, so serious that it would prevent a reasonable person from receiving his or her education. In FIRE's letter to Oakland University President Gary D. Russi on December 16, 2011, we explained how Corlett's journal is far from such a standard. 

It's also important to note that that the Davis case sets a standard for peer-on-peer sexual harassment where there is no power differential between the parties. But Corlett and his professor aren't peers—his professor is the one in the position of power. That makes any harassment rationale for punishing Corlett even more difficult to sustain.

The hearing panel in Corlett's case was quite wrong to label Corlett's writings involving his professor as "unlawful." Insensitive? Maybe, but insensitivity is not an actionable offense. The First Amendment jurisprudence governing threats and intimidation simply cannot support Oakland's huge overreaction to someone who took at face value the assignment to write whatever he wanted in his writing journal. This is a key reason why OU should reverse its findings against him. Discipline was the wrong choice for a student who broke no rules in the course of making some people feel that he was not sensitive enough.

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