Not Plausible That the First Amendment Protects Offensive Classroom Speech?

The outcome in Corlett v. Oakland University is frustrating for numerous reasons, some of which my colleague Samantha Harris outlined when the decision was released. Joseph Corlett sued Oakland University for violating his constitutional rights after the university suspended him for three semesters based on entries in a journal that he was required to keep for a writing class. Judge Patrick Duggan dismissed Corlett’s case with prejudice. Behind those legal terms lies a damning indictment of the state of discourse on at least one college campus.

Dismissing a case means that the plaintiff is denied the opportunity to litigate his or her claim. The case is stopped before it really starts. There is no discovery (exchange of documents and deposition testimony to clarify the facts), no trial, and no resolution of the case by a jury. Judge Duggan slammed the courthouse door in Corlett’s face because he decided that Corlett had failed to state a claim upon which relief could be granted. According to the Supreme Court, plaintiffs must provide sufficient factual allegations, which the court must accept as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Judge Duggan determined that, even if he accepted everything in Corlett’s complaint as true, Corlett had not alleged a violation of his rights that the court could remedy. That means the judge concluded that it was not even plausible that Corlett’s unedited thoughts about his professor’s physical attributes, written in a journal for a creative writing class, could be protected under the First Amendment.

In his opinion (PDF), Judge Duggan said it was not necessary to determine if what Corlett wrote was obscenity or sexual harassment (for the record, it was neither). This is not a case in which the judge decided, even wrongfully, that the speech fell into a category that the Supreme Court has said is not protected by the First Amendment. Instead, he simply decided that because Corlett wrote something with sexual overtones about his professor that his professor found offensive, there was no plausible set of facts under which his speech could be protected. He even speculated that Corlett’s writing was “possibly appropriate in some settings” but did not have to be “tolerated by university officials.” The Supreme Court would presumably beg to differ, having stated in Healy v. James, 408 U.S. 169 (1972), that “state colleges and universities are not enclaves immune from the sweep of the First Amendment.” But Judge Duggan dismissed the case, so we’ll not have a chance to resolve that question.

Judge Duggan’s reasoning makes a university, an institution dedicated to the exploration of ideas, more restrictive than other public places. Hitting on a woman at a karaoke bar may well be protected speech, according to Judge Duggan. But make a clumsy attempt at capturing a literary trope (student crush on teacher) and you’re guilty of “unlawful individual activity.” If you are an aspiring novelist in an Oakland University creative writing class, take heed. Keep your drafts in the bottom drawer or keep sex out of your stories. Remember, although you’re in class to learn, if anyone takes offense at what you’ve written, you won’t be able plausibly to claim that the First Amendment protects your work.

And it gets worse. Judge Duggan dismissed Corlett’s case with prejudice. Often a judge will find that a complaint does not state a claim but will dismiss it without prejudice, meaning that the plaintiff can reconsider, do some more investigation or legal research, and then re-file. Not here. Judge Duggan decided that Corlett’s claim that Oakland University violated his First Amendment rights when it suspended him for three semesters for something he wrote was not plausible and that further investigation on Corlett’s part would be useless. According to the judge, no set of circumstances could bring the First Amendment into play once Corlett offended his professor.

You may not like what Joseph Corlett wrote. You may think it was tasteless, or sexist, or not very creative, or even a bit creepy. He may have demonstrated a lapse in judgment. But remember, he was in a classroom. He was there to learn, and making mistakes is essential to learning. Oakland University, in its “Passion Statement,” describes its purpose as “[t]ransforming lives and society through learning, discovery and engagement for the public good.” Joseph Corlett missed the small print—apparently learning and discovery cannot involve causing offense. Again, it’s important to remember that all Corlett did was offend his teacher. He did not sexually harass her. He did not confront her with obscenity. And for the sin of offense, he was effectively expelled from school. When he sought redress in the courts, Judge Duggan said no, it’s not plausible—even accepting everything you say as true—that your rights could have been violated.

One of the great things about working for FIRE is that I get to read First Amendment cases that contain some of the most stirring language in the legal canon, passages such as the one from Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967) in which the Supreme Court stated:

Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.

Judge Duggan's reasoning contradicts these longstanding principles, but FIRE will keep fighting for them.