July 25, 2013
Back in January of 2010, the Supreme Court held in Citizens United v. FEC that money can be speech protected under the First Amendment.
This week, a U.S. district court judge held that an essay written by a student about how he was sexually-attracted to his professor was not entitled to First Amendment protection.
There have been several media outlets following this story since the lawsuit was first filed in March of this year, but here’s a quick factual background:
The lawsuit was started by Joseph Corlett, who, after the economic downturn, returned to school to obtain his associate and bachelor degrees. Corlett was almost 56 years old at the time of his enrollment at Oakland Community College in Southfield, Michigan.
He graduated from the community college in December of 2010 with his associate degree, and proceeded to attend Oakland University in Rochester, Michigan in the fall of 2011.
As part of his required curriculum, Corlett enrolled in “English 380: Advanced Critical Writing” taught by Professor Pamela Mitzelfeld.
One of the course assignments for the class was a “Writer’s Daybook,” which was to be reviewed at three random points throughout the semester.
The course materials described the Daybook as “an ongoing volume that essentially functions as a place for a writer to try out ideas and record impressions and observations. Your Daybook will take things a bit further by including vocabulary and reflections on passages from our readings.”
According to Corlett, he asked Mitzelfeld on the first day of the class whether any topics were restricted or prohibited for the Daybook, to which she “emphatically” replied “no,” and that she wanted the “raw stuff.”
Evidently, Mitzelfeld got what she asked for.
Corlett wrote entries on September 10 and 23, 2011 entitled “Hot for Teacher.”
The first entry goes into great detail about Corlett’s physical attraction to Mitzelfeld, stating that she was “stacked” and that he will “never learn a thing.”
The second entry, entitled “Hot For Teacher Continued…,” begins by posing the “eternal male question:” “Ginger or Maryanne?,” referring to characters in the TV sitcom Gilligan’s Island. Corlett described himself as a “Ginger man” and calls Mitzelfeld “[his] Ginger.”
On November 1, 2011, Mitzelfeld collected the Daybooks for review for the first time. The next day, Corlett received a phone call from the university’s Assistant Vice President for Student Affairs, requesting a meeting with Corlett later that day. At the meeting, Corlett was advised of Mitzelfeld’s discontent with some of his Daybook entries and told not to attend her English course for the remainder of the week.
The following week, after Corlett didn’t hear anything further, he began attending Mitzelfeld’s course again. Upon seeing him in her class, and in front of Corlett’s classmates, Mitzelfeld called the campus police to escort him from the classroom.
Things kind of escalated from there, leading to Corlett’s eventual suspension from campus for one year, allowing his return in the Winter 2013 semester only “with the presentation of evidence that he participated in counseling for sensitivity issues.” In addition, Corlett was barred from having contact with Mitzelfeld or enrolling in any of her courses.
Corlett sued in March of 2013, claiming that the university violated his free speech rights. The university moved to dismiss for failure to state a claim, and the court just ruled on that motion.
The court dismissed the complaint in its entirety, finding that Corlett’s “expressions of lust for Mitzelfeld or descriptions of her physical appearance are not entitled to First Amendment protection.”
The order is over 30 pages long, so there’s a long analysis explaining why the court came to the conclusion it did, but here’s the gist of it:
Corlett argued that 1969’s Supreme Court ruling Tinker v. Des Moines Independent Community School District was the most apposite authority. Tinker held that a group of students’ wearing black armbands in protest of the Vietnam War were protected by the First Amendment.
The university argued instead that the most apt case was 1988’s Hazelwood School District v. Kuhlmeier, which involved speech that was “school-sponsored,” part of the curriculum, and “bear[ing] the imprimatur of the school.”
The court rejected both of these standards in deciding the present case.
The judge found that Hazelwood was not appropriate because “[i]t is difficult to imagine that anyone would reasonably perceive [Corlett]’s Daybook writings as bearing ‘the imprimatur of [the school].’”
In addition, the court found that Tinker was not apt because Corlett was not engaged in “pure speech” – that is, he “was not expressing his views on political, religious, or similar matters (including matters of a public concern).”
Instead, the court looked to the 1995 Sixth Circuit ruling Settle v. Dickson County School Board. Settle involved a high school student who brought a First Amendment challenge after her teacher refused to accept a research paper entitled “The Life of Jesus Christ” and gave her a “zero” for refusing to write on a different subject.
In effect, the court ruled that no First Amendment rights were implicated because the university was disciplining Corlett simply because of his choice of topic for his course assignment.
I’m not sure if the court was trying to dodge the difficult questions presented by this case or simply failed to understand how the law applied to the facts (though I suspect the former is true), but it’s pretty clear that Corlett was punished for the content of his writings, not simply for the topic that he selected.
Think about it this way: had Corlett written an eloquent, Shakespearian poem about his attraction, it’s possible that there would have been some discussion with Corlett about the nature of this attraction, but it’s unlikely that he would have been kicked out of school for it.
However, the court probably recognized that the school took arguably appropriate action in the face of seemingly genuine fear on the part of Mitzelfeld, and was anxious of the policy implications had it actually recognized a cause of action on Corlett’s part – regardless of whether the law actually supported his position.
Ironically, although the court claims that the First Amendment was not implicated by Corlett’s writings, the ruling will almost certainly have the effect of chilling speech.