Motion to Dismiss in 'Hot for Teacher' Case Is Legally Weak But Tactically Disturbing
May 17, 2013
Joseph Corlett - The Detroit Free Press
When Oakland University, a public university in Michigan, suspended student Joseph Corlett for writing an entry called "Hot for Teacher" in his class journal, the story generated widespread media coverage. As Torch readers may recall, Corlett's ordeal began when he submitted his writing journal to his Advanced Critical Writing professor in early November 2011. The course materials describe the student journal as "a place for a writer to try out ideas and record impressions and observations," and state that it should contain "freewriting/brainstorming" and "creative entries."
One entry in Corlett's journal (PDF), titled "Hot for Teacher," tells a story of being worried about being distracted in class by attractive professors, including his Advanced Critical Writing professor. A separate entry states that his professor is like the character Ginger from the television series Gilligan's Island, while another professor is like the character Mary Ann. Unfortunately, this sort of "freewriting" apparently wasn't a welcome form of "creative" exploration for Corlett's professor.
In an email on November 29, Corlett's professor announced to some of her colleagues, "Either Mr[.] Corlett leaves campus or I do." On December 7, Corlett met with Dean of Students and Assistant Vice President of Student Affairs Glenn McIntosh and Vice President for Student Affairs & Enrollment Management Mary Beth Snyder, who pressured Corlett to withdraw from his winter semester classes. Corlett was also informed (PDF) that he was under investigation for possibly violating the Student Code of Conduct.
In January 2012, Oakland found Corlett guilty (PDF) of "unlawful individual activities" after a hearing, based solely on his journal writing. He was suspended for three semesters, barred from campus, put on disciplinary probation for the rest of his academic career, and required to show evidence of "counseling ... to work on sensitivity issues" to be readmitted.
Corlett sued Oakland in March 2013 for violating his First Amendment rights. On April 30, Oakland filed a motion to dismiss. Its legal arguments are weak, but the brief is nevertheless troubling. It exploits misconceptions about First Amendment law to craft an argument that, if accepted, would further damage free expression in academia.
Oakland Equates Expressive Rights of College Students and Fifth-Graders
First, Oakland relies on First Amendment cases involving secondary and even elementary school students to subject Corlett, an adult, to the limitations on free expression placed on children. Oakland is exploiting a troubling tendency among courts to apply standards developed for high school students to the college context. Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988), the Supreme Court decision upon which Oakland primarily relies, held that the First Amendment does not preclude high school educators from "exercising editorial control over the style and content of student speech in school-sponsored expressive activities, so long as their actions are reasonably related to legitimate pedagogical concerns." Hazelwood, 484 U.S. at 273. Oakland also relies on dicta in Ward v. Polite, a recent ruling from the United States Court of Appeals for the Sixth Circuit which commented on K–12 precedent in a case involving a graduate student studying social work. Ward v. Polite, 667 F.3d at 734 (6th Cir. 2012).
Several appellate courts have found it inappropriate to analogize high school cases to the university setting because of the differences between the two types of institutions. See, e.g., McCauley v. University of the Virgin Islands, 618 F.3d 232, 243 (3d Cir. 2010) (noting that grade and high schools "prioritize the inculcation of societal values ... [but p]ublic universities encourage teachers and students to launch new inquiries into our understanding of the world"). And typically those that do use high school cases to adjudicate college free speech disputes explain why the analysis is valid. For instance, although the Sixth Circuit cited Hazelwood in its Ward decision, it included various caveats, such as acknowledging that the more mature the student, the fewer the restrictions the First Amendment will allow. Ward, 667 F.3d at 734.
Unlike the majority of courts, Oakland ignores the obvious distinctions between high school and college to justify its treatment of Corlett. But even under Hazelwood, Oakland's actions do not pass First Amendment muster because Corlett's journal is not "curricular speech" that it can regulate for "legitimate pedagogical concerns." Oakland relies on Curry v. Hensiner, in which the Sixth Circuit held that a school did not violate a fifth-grader's free speech rights when it would not let him "sell" candy cane ornaments with a tag explaining their Christian symbolism. 513 F.3d 570, 579 (6th Cir. 2008). The school could reasonably decide that it was not appropriate to expose children as young as first-graders to a particular religious point of view in the context of a school-wide interactive activity for children to learn about commerce. In fact, the school officials debated the question among themselves and acknowledged that the student did nothing wrong. That provides a stark contrast to a university relying on curricular speech doctrine to punish an adult who described his professor as "stacked" in a personal journal for an advanced level college English seminar. But Oakland wants the judge to treat the two situations the same way—except to approve punishment in the second.
Oakland's Claim of Unfettered Discretion to Discipline Students for Their Speech Ignores Both the First Amendment and Due Process
Oakland implies that any scrutiny of its actions in this case "would transform every student disagreement with a university's judgment on his or her coursework into a federal lawsuit." This is a power grab under the guise of a legal argument. Traditionally courts have afforded near-complete deference to a school's academic decisions on the theory that a judge does not have the expertise, say, to evaluate a professor's response to an essay on feminist perspectives in Jane Austen novels. Professor Mitzelfeld, the offended instructor, should have pursued pedagogical responses to her concerns about Corlett's work. For example, she could given Corlett a low grade to deter him from writing about his sexual fantasies if she believed his writing had no literary merit. That would have been suspect in this case because she had praised his previous sexually-themed journal entries, but in any case the Sixth Circuit has observed it is a "rare day" when a student can challenge course requirements on a First Amendment basis. Ward, 667 F.3d at 734. But instead of a low grade, a transfer to another class, a meeting with the department chair, or any number of other possible academic consequences for his class assignment, Corlett instead was found guilty of "unlawful individual activities." To be clear: instead of failing Corlett, the school declared his writing to be unlawful.
By answering an academic problem with a disciplinary response, Oakland erred. As a result, the judicial deference it seeks is unwarranted. Judges most certainly are trained to determine whether school administrators have violated a student's constitutional rights, as Oakland did here. Even assuming for the sake of argument that Hazelwood is applicable here, as Oakland contends, the university's power to punish student expression would only extend to speech that substantially disrupts the functioning of the school. See Hazelwood, 484 U.S. at 272. There is no allegation of a disturbance here that would meet that standard. The professor's objection is not a substantial disturbance—she complained using the procedures that the school set up precisely for that purpose. Corlett did not intend to publicize his journal, nor did he. The university's decision to remove Corlett summarily from class and then from school certainly created an uproar, but that is attributable not to Corlett's speech but the school's overreaction. Nor has Oakland tried to argue that it could suppress Corlett's speech because it was disruptive.
If the judge accepts either of Oakland's arguments, it will be a blow to free expression on college campuses. There is more to say about Oakland's attack on free speech, so be sure to visit the Torch regularly. Corlett's response to Oakland's motion to dismiss should be filed in the coming weeks. FIRE will be watching this case carefully and will report on any developments.