By any standard, Joseph Corlett displayed questionable taste in a series of journal entries he submitted for a college writing assignment.

Because of that poor judgment, Corlett is receiving little public sympathy after his Michigan college suspended him for making lustful comments about his instructor in a writing assignment.

On July 23, a federal district judge found no First Amendment violation in Oakland University’s decision to suspend Corlett on a charge of harassment.

There is no disputing that Corlett’s journal entries – comparing his English professor to “Gilligan’s Island” sex-symbol Ginger and generally “hubba-hubba-ing” over her appearance — were unbecoming to a married 57-year-old businessman. But the federal court’s ruling takes dangerous liberties with the law of the First Amendment. If the court’s expansive view of the disciplinary authority of colleges takes hold, campus speakers with far more substantive messages will be at significant risk of retaliation.

If the Supreme Court has told us anything unmistakeable about the First Amendment — time after time after time — it is that even speech of minimal societal value that offends most of its listeners remains beyond the government’s constitutional authority to punish.

Telling your English teacher that she is distractingly “stacked” is an unwise decision. But is it really worse than jumping up and down outside a dead war hero’s funeral waving a “God hates fags” sandwich board — which the Supreme Court has told us is constitutionally protected? Is it really worse than selling videos of dogs biting each other to death for sport — which the Supreme Court has told us is constitutionally protected?

There is, thankfully for us all, ample room in the First Amendment for speech that is misguided, dumb, annoying or creepy. Speech is punishable by the government only in rare and extreme cases — and where there is any doubt, the benefit of the doubt must necessarily go in the speaker’s favor.

In the school setting, the Supreme Court has recognized that a few First Amendment compromises are necessary because of compelling public-policy considerations. These include: (1) the need to protect sensitive young listeners from harmful speech inappropriate for their maturity level, (2) the need to avoid provoking audience members to lash out in disruptive ways, and (3) the need for a school to disassociate itself from remarks that might be mistaken for officially school-sanctioned speech.

None of those rationales for reducing students’ First Amendment rights applies to a community college student’s essay.

In his ruling, U.S. District Judge Patrick J. Duggan accurately quoted and described the law governing student free-speech rights. And then completely refused to apply it.

The opinion quotes at length from Settle v. Dickson County School Board, in which the federal Sixth Circuit (which makes binding legal precedent for Michigan) found no constitutional violation in a junior-high-school teacher’s decision to award a “zero” grade to a child who insisted on writing an essay about Jesus instead of her previously approved topic.

The Settle case is utterly irrelevant to what happened at Oakland University, except by distinction. Joseph Corlett did not deviate from the boundaries of his assignment, which was to write — without limitation — a journal of his thoughts. Joseph Corlett did not receive a zero grade; he received a disciplinary suspension after being found guilty of a student-conduct violation.

Because college professors, too, have constitutional rights, courts are properly deferential to classroom grading decisions. But disciplinary decisions are supposed to be different. Once a school’s response crosses the line from academic (failing the class) to punitive (suspended from all classes), much stronger constitutional protections are supposed to come into play.

At first, Judge Duggan appeared to be applying the Supreme Court’s 1988 ruling in Hazelwood School District v. Kuhlemier, a case about the censorship of a class-produced high school newspaper that the Supreme Court has never extended to the college setting.

That would have been a misguided decision. Hazelwood is about giving schools leeway to regulate students’ use of school property to speak to an impressionable audience of children. It has no place in a dispute about non-public, one-to-one speech between a 57-year-old man and a college professor.

But as bad as that decision would have been, Judge Duggan did worse. He decided that even the Hazelwood level of constitutional protection — which puts the burden on the government regulator to identify a legitimate educational basis for censoring students’ speech — was too generous.

Mistakenly relying on the Settle case, Judge Duggan said cases involving speech as part of a class assignment “do not warrant federal court review” at all. In Corlett’s case, the judge wrote, “First Amendment expression was not involved.” The university’s reasons for punishing Corlett, said the judge, “are irrelevant.”

Let that sink in. Not the First Amendment protection that applies to citizens on a public sidewalk. Not the First Amendment protection that applies to editors on a high school newspaper. None. At. All.

To say that Joseph Corlett has no constitutional interest in the content of his essays is a drastic and profoundly hazardous legal principle.

If Judge Duggan is correct — and his dismissal of Corlett’s case should be appealed to the Sixth Circuit — then there is nothing a school can do to a student in response to in-class speech that violates the First Amendment. An art history student could be suspended from college because her professor disagrees with her critique of his favorite sculptor. A political science student could be expelled from college for expressing views critical of President Obama in a research paper.

Those celebrating the court’s ruling as a victory for common sense should cork their champagne.

If a neutral fact-finder determines that Corlett’s actions (and the effects of his speech on the professor) were sufficiently severe, then it’s possible for the professor’s discomfort to override Corlett’s First Amendment interests. But that is the burden that Oakland University should have to satisfy before disciplining a student for the content of speech. Denying that any First Amendment interest exists is a declaration of “open season” on student dissenters.

 

  1. [...] expelling him for the content of his class assignment. Student Press Law Center Executive Director Frank LoMonte wrote about the case yesterday to review First Amendment protections and to explain why all [...]