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.
May 17, 2013
FIRE President Greg Lukianoff's op-ed in today's Wall Street Journal takes on the feds' unconstitutional "blueprint" for speech codes that makes nearly every student in America a sexual harasser, but Greg and FIRE aren't the only ones sounding the alarm. Nationally syndicated columnist Mona Charen's recent column ties this latest outrage to the 2011 "Dear Colleague" letter from the Department of Education that slashed due process protections for students accused of sexual misconduct including—guess what!—sexual harassment.
May 17, 2013
In an article for the Northern Kentucky Law Review titled "A Hostile Environment for Student Defendants: Title IX and Sexual Assault on College Campuses" (PDF), former FIRE legal intern Stephen Henrick reviews the ways in which university adjudications of sexual assault are deeply flawed. Ultimately, Stephen comes to this conclusion:
Quite simply, the law must recognize that a university (like any institution) has limits. Society must assign adjudication of sexual assault to civil and criminal court systems to ensure justice for all concerned.
Over the years, OCR has issued a series of publications that escalate complainant rights and mandate new procedures for resolving complaints in a way that does not sufficiently protect the due process rights of falsely accused students.
Stephen further warns of the danger of tying student disciplinary hearings to federal funding:
The net effect of the administrative enforcement scheme is that schools have an incentive to convict anyone who is charged with sexual assault or rape as a matter of risk aversion for the institution. As noted, OCR has the authority to revoke a college's federal funding if it finds the institution violated Title IX (although OCR has never exercised that power). For some schools, the sums at stake exceed half a billion dollars. Because OCR primarily cares about the complainant's rights, as evidenced by its guidances and enforcement opinion letters, conviction carries a much lower risk of administrative enforcement than acquittal.
Stephen's article is an important contribution to the field and adds to the discussion surrounding this crucial topic. You can read the full article on the Northern Kentucky Law Review website (PDF).
May 17, 2013
The Wall Street Journal has given the lead op-ed space in today's issue to FIRE President Greg Lukianoff to discuss the disastrous and unconstitutional federal "blueprint" for campus speech codes set forth last week by the Departments of Justice and Education. In "Feds to Students: You Can't Say That," Greg points out that the rules would make nearly every student on campus a "harasser" by limiting speech about sex or gender issues to suit the sensibilities of the most easily offended student on campus.
Check out Greg's op-ed on The Wall Street Journal website or in your print edition today!
May 17, 2013
It's not every day that a free speech icon goes on a bus tour, but Mary Beth Tinker of the landmark Supreme Court case Tinker v. Des Moines Independent Community School District (1969) is planning on doing just that. Mary Beth was just 13 years old when she—along with her brother John Tinker and his classmate Christopher Eckhardt—began defending in court their right to wear black armbands to school to protest the Vietnam War. With its decision in this case, the Supreme Court established that the First Amendment protects student speech even in the secondary school context as long as the speech does not "materially and substantially interfere" with school activities—this is known now as the "Tinker standard." As the Court wrote:
It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.
Since then, Mary Beth has continued to advocate for civil rights, and with your help, she and free speech attorney Mike Hiestand will visit schools across the country to share her story and empower students to protect their Constitutional rights, too. The fundraising campaign, a Student Press Law Center special project, offers a range of perks in exchange for donations, including a VIP Tinker Tour visit to a school near you, a meal with Mary Beth and Mike, and a signed limited edition Tinker Tour armband.
May 16, 2013
Lots of people are (rightly) concerned about the new speech code “blueprint” that the Departments of Education and Justice set down last week. In the latest coverage of this dangerous federal mandate, Reason’s Matt Welch sat down with FIRE President Greg Lukianoff to ask why exactly this letter is so bad. Greg’s answer? “It is so broad that it turns every single student and every single faculty member on campus, at least arguably, into harassers.” Check out the video below and on Reason.com!
May 16, 2013
News of the May 9 federal "blueprint" from the Departments of Education and Justice mandating college speech codes across the country has understandably outraged commentators from across the political spectrum. Here on The Torch, we're going to highlight some of them one at a time so that readers can see the breadth of the objections to this shameful demand for censorship.
First up is civil libertarian, author, and FIRE Board of Advisors member Wendy Kaminer, who points out in The Atlantic that "You have to read the administration's latest diktat to colleges and universities to believe it." Read Kaminer's article, and if you haven't yet, let the feds know how you feel!
May 16, 2013
In case there was any doubt about the profound threat that the new federal "blueprint" for sexual harassment poses to core protected speech on college campuses, consider this: It reaches not only speech of a sexual nature, but gender-related speech as well. That means discussions of topics like gender relations and sexual politics that offend somebody could qualify as harassment.
According to the 16-page "Resolution Agreement" signed by OCR/DOJ and the University of Montana (page 2),
the term "sex-based harassment" includes both sexual harassment, including but not limited to sexual assault, and gender-based harassment. ... The term "gender-based harassment" means non-sexual harassment of a person because of the person's sex and/or gender, including, but not limited to, harassment based on the person's nonconformity with gender stereotypes.
As we have been reporting, sexual harassment—as broadly defined by OCR—is any unwelcome verbal conduct of a sexual nature that is subjectively offensive to the listener. Because OCR has indicated that "sex-based harassment" includes not only sexual harassment but also "gender-based harassment," any discussion of gender-related topics is subject to investigation and possible discipline if someone gets offended.
The U.S. Court of Appeals for the Third Circuit recognized this very danger when it found Temple University's sexual harassment policy to be unconstitutional in DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008). The Third Circuit held, in pertinent part:
[T]he policy's use of "hostile," "offensive," and "gender-motivated" is, on its face, sufficiently broad and subjective that they "could conceivably be applied to cover any speech" of a "gender-motivated" nature "the content of which offends someone." This could include "core" political and religious speech, such as gender politics and sexual morality.
DeJohn, 537 F.3d at 317 (emphasis added) (internal citations omitted).
Now a substantial chunk of core political and religious speech is back on the chopping block, thanks to the federal blueprint. So much for the marketplace of ideas.
May 16, 2013
Today, FIRE President Greg Lukianoff sent a letter to First Lady Michelle Obama to thank her for the inspiring message she delivered on Saturday night to nearly 600 graduates at Eastern Kentucky University's (EKU's) commencement ceremony, where she urged the graduates to seek out conversation with people who hold differing beliefs and points of view.
Mrs. Obama's stirring plea came in the heart of her address, when she said, "If you're a Democrat, spend some time talking to a Republican. And if you're a Republican, have a chat with a Democrat. Maybe you'll find some common ground, maybe you won't."
"If you honestly engage with an open mind and open heart, I guarantee you'll learn something. And goodness knows we need more of that," the First Lady said. "Because we know what happens when we only talk to people who think like we do. We just get stuck in our ways."
We at FIRE could not agree more. In fact, one of the central themes of FIRE President Greg Lukianoff's book, Unlearning Liberty: Campus Censorship and the End of American Debate, is that society suffers when people develop the habit of living in a bubble where they only interact with people with whom they agree. Unfortunately, as Greg laments and documents so thoroughly in Unlearning Liberty, that pattern is becoming all too common on America's college campuses, where speech codes abound that discourage students from interacting with others whom they might offend by disagreeing. This creates a chilling effect resulting from students' fear of punishment should the offended party complain to campus authorities.
According to news accounts, the First Lady's speech was welcomed by thunderous applause and standing ovations at EKU—which, by the way, is FIRE's latest "green light" school. This message is an important one that EKU graduates—and students and graduates everywhere, for that matter—should take to heart. FIRE appreciates Mrs. Obama's emphasis on encouraging debate and dialogue, and we thank her for helping us spread this important message.
May 15, 2013
Torch readers will remember FIRE’s posts on Laura Curry, the University at Buffalo (UB) professor who was arrested last month after declaring that a pro-life display on campus was “profane” and asserting to a police officer her right to say the word “fuck” in public. As we noted, profanity has been long protected by the Supreme Court in cases like Cohen v. California and Houston v. Hill.
FIRE is glad to report that the charges of disorderly conduct have been dropped. As UB’s student newspaper The Spectrum reports, “Judge [Mark] Farrell ruled the First Amendment protected Curry’s self-expression at the rally.”
We hope UB police and administrators will remember the First Amendment in the future. Of course, we’ll be watching to make sure they do.