Last week, I blogged about Oakland University's motion to dismiss in Joseph Corlett's lawsuit against the university for violating his First Amendment rights. Corlett, as Torch readers may recall, is the student who was found guilty (PDF) of "unlawful individual activities" for writing an entry called "Hot for Teacher" in his class journal (PDF). Corlett was suspended for three semesters and subjected to other disciplinary measures because he wrote about his professor being like the character Ginger from the television series Gilligan's Island, as opposed to the character Mary Ann, as well as other mildly suggestive musings. A full recap of Corlett's ordeal is available here and here.
Corlett sued Oakland in March 2013. On April 30, Oakland filed a motion to dismiss. FIRE believes it is important to understand why its legal arguments are not only weak but misrepresent basic principles of First Amendment law.
Last week we explained how Oakland's conflation of the expressive rights of college students and fifth-graders and its claim of unfettered discretion to discipline students for their speech ignores both the First Amendment and due process rights. But Oakland does not stop there. Its brief is flawed for two other important reasons.
Oakland Relies on an Unconstitutional Speech Code to Suppress Corlett's Speech
Oakland defines discriminatory harassment as "any physical or verbal behavior, including but not limited to sexual advances or requests for sexual favors, and any written behavior ... that stigmatizes or victimizes an individual on the basis of race, sex, sexual orientation, age, height, weight, handicap, color, religion, creed, national origin or ancestry, marital status, familial status, veteran status, or other characteristics not permitted by law." Over 20 years ago, the same federal district court where Corlett filed his lawsuit held that a similarly overbroad policy prohibited speech that universities like Oakland are both legally and morally bound to protect. Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (striking down a speech code because a university cannot suppress constitutionally protected speech when prohibiting discriminatory harassment). Moreover, Oakland's policy is so vague that students have no way of knowing whether their speech might inadvertently run afoul of the policy.
The easiest way to see how this policy violates the First Amendment is to compare it to the legal standard for peer harassment in an educational setting, as established by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). In Davis, the Court defined actionable harassment as unwelcome discriminatory conduct that is "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." Id. at 633. Although the Davis case sets a standard for peer-on-peer sexual harassment, where there is no power differential between the parties, it is also applicable in the student-teacher context: here, the professor is the position of power over her supposed harasser. That makes the rationale for punishing Corlett even weaker.
However embarrassed Corlett's professor may have felt when she read Corlett's journal entries, his actions cannot be described as "severe" or "pervasive" enough to meet the Davis threshold. Nor can comparing an adult woman to a 1960s sitcom character be considered objectively offensive. And as the Doe court made clear, even if "large numbers of people" found Corlett's journal to be "gravely" offensive, the University still would not be able to proscribe his speech. Doe, 721 F. Supp. at 863. Finally, there is no evidence that she felt so harassed that she could no longer operate on campus. Corlett's daybook simply does not constitute harassment as defined by the Supreme Court.
An aside: On May 9, the Departments of Justice and Education sent a letter to the University of Montana that is intended as "a blueprint for colleges and universities throughout the country," in which it declared that "sexual harassment should be more broadly defined as 'any unwelcome conduct of a sexual nature'" including "verbal conduct" (that is, speech). Because this definition is blatantly unconstitutional for reasons explained here and here, it does not affect the legal analysis—and should not affect the outcome—in this case.
Corlett's daybook is at the core of speech protected by the First Amendment precisely because others could find it distasteful, offensive, or puerile. Oakland nevertheless tries to characterize his journal entry as workplace discrimination, namely "discriminatory, harassing, and intimidating conduct," which necessitates protection of employees from harassment by non-employees. The university supports this argument with a string of cases involving private workplaces where First Amendment rights are not implicated. However, the Supreme Court made clear in Davis that the standard for harassment in the educational setting is not the same as in the workplace. And the Doe court noted that unlike a business, where efficiency is crucial, a university must champion free expression because "the free and unfettered interplay of competing views is essential to the institution's educational mission." Doe, 721 F. Supp. at 863. Corlett is a student with full First Amendment rights on a public university campus, so workplace cases are irrelevant here. Corlett's few journal entries about his professor's appearance are not so "severe, pervasive, and objectively offensive" that they have the impact required by Davis, and thus they are protected by the First Amendment.
Oakland's Smear Tactics Cheapen the Importance of the First Amendment Issues at Stake Here
Oakland's final insult to the First Amendment is to attack Corlett personally and to caricature his journal entries, hoping that if the court doesn't like the speaker, it might be more inclined to allow Oakland to silence his speech. Thus, we are introduced to Corlett as "an adult male who came to the college environment after decades of working in the construction industry"—and we're all familiar with the stereotype of the boorish construction worker. And he likes guns: "A later entry details how Corlett "sleep[s] nude, [but] only feel[s] naked without [his] gun on the nightstand." The brief also insinuates in several places that he is callous to the feelings of his wife, and repeats three times that Corlett compared his professor to Ginger from Gilligan's Island ("an oversexed caricature from a sitcom"), as though that should decide the case in itself.
Cheap shots like these generally are a red flag for a weak legal argument. But Oakland is not just a garden-variety litigant. It's a government entity trying to smear a private citizen in an effort to justify punishing his speech. At the same time, it's sending a warning to others on its campus who might dare to say something Oakland doesn't like. The First Amendment is designed to prevent government from silencing individual voices, which is why this case is very serious, despite what may seem at first glance to be facts tailor-made for a late-night comedy show.
FIRE is monitoring it carefully.
We're joined by First Amendment attorney Marc Randazza and British journalist Brendan O'Neill to discuss the state of free speech in the United States and Europe. Randazza is a First Amendment attorney and the managing partner at Randazza...