Is a Salacious Journal Sexual Harassment or Free Speech?

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By Amelia Brust

Former Oakland University student Joseph Corlett filed a suit against the Detroit-area institution for $2.2 million and four credits, claiming his First Amendment rights were violated when in 2011 the school suspended him from taking classes until winter 2013. Corlett was suspended for a journal, entitled “Hot for Teacher,” he submitted in his English 380 writing class for an assignment. The journal contained writings in which Corlett described being sexually attracted to his teacher. Corlett stated the writings, which include a description of his teacher as “Tall, blonde, stacked, skirt, heels, fingernails, smart, articulate, smile,” were a “whimsical exaggeration,” and that previous writings he had done for the class on similar themes had earned him A’s. Corlett said the assignment’s instructions were described as requiring the work to be “raw” and possibly things people might not want to hear.

Oakland University suspended Corlett saying his writings violated the school’s sexual harassment policy, which includes “but are not limited to, sexual assault and unwelcome:  sexual propositions, sexually graphic comments about a person’s body, touching, patting, pinching, leering, persistent sexual jokes or comments, and displays of sexually graphic pictures.”[1] As reported by the Detroit Free Press[2], emails sent by the teacher to university officials said Corlett “has made his gun obsession obvious to other colleagues and has managed to make himself known in negative ways to so many other females on campus, I am feeling increasingly uncomfortable and unsafe.” Corlett maintains he has never threatened anyone.

Albeit unusual, the nature of this case is not unprecedented. The wording of organizations’ sexual harassment policies are a common thread in such cases. The 2010 case of Lopez v. Candaele (630 F.3d 775)[3] saw a student at Los Angeles Community College argue for his First Amendment rights against a teacher. In this case, Lopez had made a speech in class about his personal religious views and marriage views, but was interrupted by his teacher. Lopez was cited under the school’s sexual harassment policy, which he argued was “unconstitutionally overbroad and vague.” Although Lopez could not seek damages, for he lacked evidence of injury from the event, the U.S. Ninth Circuit Court of Appeals granted him a preliminary injunction to further pursue the argument.

In 2008, the Third Circuit Court of Appeals upheld a 2007 decision by the Eastern Pennsylvania District Court that Temple University’s then-sexual harassment policy was too broad and was unconstitutional, as written in DeJohn v. Temple University (537 F.3d 301 (3d Cir. 2008).[4] The plaintiff, Christian DeJohn, said his views on women in the military were punished under the policy, and was awarded a ceremonial $1.00 for his free speech claim, which begs the question of whether Corlett will be awarded his full demands even if he wins. Judges in both cases referenced Davis v. Monroe County Board of Education (526 U.S. 629 1999), which determined sexually harassing speech must be “severe, pervasive and objectionably offensive such that it undermines the victim’s educational experience and denies equal access to an institution’s resources and opportunities”.

Outside the courts, in 2001 Tufts University heard and ultimately dismissed claims of sexual harassment brought against a student conservative magazine that published a satirical cartoon and article of a student campus leader. As before, the university’s loosely worded sexual harassment policy was cited as a reason for the dismissal.[5]

Really, the court will need to determine if what Corlett wrote is protected as classroom speech among adults, or if it indeed crossed the line. The difficulty in making such a determination is the context of the writing assignment in which the comments were made, as well as the constitutionality of the school’s policy.  As Saundra Schuster, for NCHERM, writes, “Unfortunately, many public institutions begin with publication of their student sexual harassment policy using the broader language of sexual harassment from the employment context, and then they embellish the context to incorporate prohibition of expression that reinforces the institutional mission related to civility and respect.”[6] If it the speech is not protected, Corlett would likely lose out on any damages or lost credits, and the teacher could then, file a sexual harassment suit against him or, more likely, against the university who did not adequately prevent the harassment. If that were the case, the teacher in question could seek damages under Title VII of the Civil Rights Act of 1964[7], which holds employers liable for a “hostile work environment” in which sexual harassment persists with an employer’s knowledge.