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In Troubling Opinion, Federal Judge Dismisses Free Speech Lawsuit Against Oakland University

Yesterday, Judge Patrick Duggan of the U.S. District Court for the Eastern District of Michigan dismissed former student Joe Corlett鈥檚 free speech lawsuit against Oakland University in a deeply flawed opinion (PDF) that has broad and troubling implications for free speech on campus.

While there is much to be said about this opinion, for now I want to briefly highlight its two most troubling aspects. First, the judge held that non-academic discipline (e.g., conduct code charges) is an acceptable response to speech deemed inappropriate for a classroom setting. Second, in deciding this case鈥攚hich involves an adult college student鈥攖he judge relied heavily on cases involving the free speech rights of elementary and secondary schoolchildren.

We understand that Corlett鈥檚 expression in this case鈥攅ntries in his creative writing journal expressing his sexual attraction to his creative writing instructor鈥攊s unlikely to garner much sympathy. But even unsympathetic speech is protected by the First Amendment, and the university鈥檚 actions in this case go far beyond giving Corlett a poor grade or even asking that he transfer to a different writing class. In this case, the university charged him with 鈥淯nlawful Individual Activity鈥 and suspended him for three semesters, during which time he was physically barred from campus. The university did this despite the fact that his creative writing assignments did not rise to the legal definition of sexual harassment, obscenity, or any other type of unprotected expression that might legitimately give rise to disciplinary action.

In his opinion, Judge Duggan held that 鈥淧laintiff鈥檚 expressions of lust for Mitzelfeld or descriptions of her physical appearance are not entitled to First Amendment protection.鈥 He acknowledged that they might be protected in other, non-classroom, settings (such as a 鈥渒araoke bar鈥), but held that when 鈥渄irected at one鈥檚 professor鈥 in the context of a 鈥渃lassroom assignment,鈥 they were not. He then concluded that because the speech was not protected, it was not the court鈥檚 business to judge the appropriateness of the university鈥檚 sanctions.

Incredibly, the judge reached this conclusion without considering whether Corlett鈥檚 comments were, in fact, actionable sexual harassment, stating that 鈥淸i]t matters not whether Plaintiff's Daybook writings satisfied the legal definition of obscenity or sexual harassment.鈥 And, in an ironic twist, the judge rejected Corlett鈥檚 argument that the policy he was disciplined under was overbroad because 鈥渢he terms 鈥榠ntimidate鈥, 鈥榟arass鈥, 鈥榯hreaten鈥, and 鈥榓ssault鈥 each have 鈥榣ong-established legal definitions.鈥欌 So according to Judge Duggan, Oakland University鈥檚 policy passes constitutional muster because it includes terms with legal definitions鈥攅ven though Judge Duggan didn鈥檛 find it necessary to limit the application of the code to conduct that met those definitions.

In holding that a university may suspend a student for speech that would be protected outside the classroom, Judge Duggan relied heavily on the Sixth Circuit case of Settle v. Dickson County School Board, 53 F.3d 152 (6th Cir. 1995). The Settle Court ruled that a teacher did not violate a junior high school student鈥檚 free speech rights by 鈥渞efusing to accept a research paper entitled 鈥楾he Life of Jesus Christ,鈥 and by giving her a 鈥榸ero鈥 for failing to write on another topic.鈥

Settle was a case about grading, and Judge Duggan鈥檚 reliance on it in this case is misplaced and dangerous. The court in Settle explicitly based its holding on a teacher鈥檚 鈥渂road authority to base her grades for students on her view of the merits of the students鈥 work.鈥 Had the school instead attempted to impose disciplinary action such as suspension or expulsion upon this student because of her attempts to turn in an overtly religious term paper, I doubt very much the court would have upheld the school鈥檚 actions. Remember: Corlett didn鈥檛 receive a bad grade. He was found guilty of 鈥渦nlawful activity鈥 and banned from campus for three semesters.

Yet here, Judge Duggan cites Settle to rule that any speech that a professor deems inappropriate in the classroom setting may legitimately give rise not only to a poor grade, but also to disciplinary action against the student. This is a terrible precedent, and one that has far-reaching implications for students鈥 ability to express their opinions freely in class.

Also deeply troubling is Judge Duggan鈥檚 heavy reliance on cases involving the free speech rights of schoolchildren to decide a case involving a middle-aged college student and his middle-aged writing professor. While briefly acknowledging that 鈥渦niversities arguably may not bear the same responsibility as elementary and secondary schools to act in loco parentis,鈥 Judge Duggan approvingly cites case after case from the elementary and secondary school settings. Given that college students are overwhelmingly adults, the notion that their free speech rights are significantly diminished by enrolling in a public university is a disturbing one. So, too, is the notion that the government suddenly has some greater interest in civilizing them than if they had chosen to enter the workforce.

The opinion is worth a read in full, and FIREwill have more to say about it in the days to come.

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