Salicious Statements In The Classroom: Do Student’s Rights Extend to Racy Essays About their Teachers?

By David Zisser

On March 16th, 2013, Joseph Corlett, a former student at Oakland University (a public university in suburban Detroit) filed a claim in the U.S District Court in Detroit. The suit stems from the suspension of Mr. Corlett. While enrolled in an English course (English 380: Advanced Critical Writing), Corlett was tasked with writing an essay “about anything”. Corlett chose to submit a racy piece entitled “Hot For Teacher,” in which he elaborated on the sexual desires he had towards the courses instructor, Pamela Mitzfield.

The university deemed the essay to be “intimidating behavior”, and acted swiftly. Corlett was suspended for a year, with re enrollment only being an option after he completed a course in sensitivity training. Corlett’s suit alleges that he was merely completing a homework assignment, and that his First Amendment rights were violated. Additionally, he is claiming to have suffered from anguish and humiliation due to being forced to leave the school. Corlett is suing the university for $2.2 million.

Previous cases of sexual harassment in universities exist that are not entirely dissimilar to the suit being brought to the courts by Corlett, albeit in the previous cases the circumstances were reversed, and it was the teacher, not the student contesting consequences of alleged harassment.

Specifically relevant is the case of Silva v. University of New Hampshire. In it, Donald Silva, a tenured faculty member used sexually suggestive language in the process of teaching his class. Particularly, he stated “Belly dancing is like jell-o on a place with a vibrator under the plate.” Later eight of his students would come forward and complain of sexual harassment. Silva was placed on leave without pay following the complaints. After losing an appeal to the university, Silva filed a claim in federal court. The courts sided with Silva, stating “The court finds that Silva’s classroom statements advanced his valid educational objective of conveying certain principles related to the subject matter of his course.”

On the flip side, in Rubin v. Ikenberry Louis Rubin, a tenured professor at the University of Illinois notorious for disclosing his sexual past and telling various dirty jokes in the classroom, lost his suit against the university after he was terminated for the aforementioned speech. The court asserted that his comments were “exceedingly remote from the First Amendment’s concern with protecting socially valuable expression.”

Another relevant facet of Corlett’s allegation is the University of Oakland’s policy on sexual harassment. In it, sexually explicit language or writing (as well as lewd pictures or notes) are included as examples as unacceptable conduct. This language as you can see is quite vague, and the case the aforementioned issue of Silva v. University of New Hampshire deals with a matter similar to this. Specifically, the courts ruled that the university’s sexual harassment policy “as applied to Silva’s classroom speech is not reasonably related to the legitimate pedagogical purpose of providing a congenial academic environment because it employs an impermissibly subjective standard that fails to take into account the nation’s interest in academic freedom.”

Ultimately, the court will be forced to determine the value of Corlett’s speech. Sexually explicit speech in a college environment has been both protected when the speech was ruled to have value, and stripped of its protection when it was frivolous and without merit. Additionally, they will be faced with the challenge of determining whether or not the Oakland University policy on sexual harassment is constitutional, and whether or not the policy was properly applied to Corlett’s essay. If it can be proved that the speech has educational value since it was in the context of an assignment, it is likely that the courts will rule in favor of Corlett.

Sexual Pictures Lead to Debate Over Student’s Free Speech Protection

Toft_1

By Jordi Toft

The integration of technology into society has led to common misconceptions of its place within constitutional law. As civil liberties intertwine with a constant outlet for personal expression via the Internet, questions arise about where the line of free speech should be drawn for students.

In 2011 the court analyzed the case of two students of Churubusco High School, refered to as T.V and M.K, who were minors at the time of a volleyball team slumber party that took place outside of school grounds and during summer break of 2009, T.V and M.K posed with penis shaped lollipops for pictures that they later posted to Facebook and MySpace, intending for them to be taken as a joke, according to the testimony of the two girls. The pictures were later brought to school grounds by the parent of a fellow student and shown to the principal and volleyball coach. The two girls, who were on the volleyball team, were banned from extracurricular activities, forced to apologize to their coach and attend counseling, reported Huffington post.

The girls were accused of breaking the school district’s athletic code of conduct by their coach, Austin Couch, although their pictures displayed no obvious ties to the high school.

In 2011, U.S District Court of Indiana Fort Wayne Division ruled that Churubusco High School had violated the First Amendment rights of two female students by punishing them for photos they had posted online. Since the photos were taken off of school grounds and were not a leading source of disruption in their school, the photos were accepted as protected expressions of speech.

The decision, made in part by U.S District Judge Philip Simon, came after a trial prompted by ACLU and the families of the two students in which the plaintiffs sought damages from the corporation. (T.V v Smith-Green Community School Corporation NO. 1:09-CV-290-PPS.)

The request for damages was denied because the school was considered to be immune from damages by the court.

“So I find here as well, and conclude that Principal Couch has qualified immunity from damages because, on the current state of the developing law in this context, particularly involving student speech originating off-campus and by use of the internet, Couch’s actions could reasonably have been thought to be consistent with the rights they are alleged to have violated (DE 71-1 pg.43-44).”

Although not an issue of first impression, this case displays the vivid reality of adolescence clashing with a public exchange of free expression.

In further cases, T.V v Smith-Green Corporation was referenced to establish the very lines of what is considered as in-school conducted speech and what qualifies as off ground expression. (Kowalski v. Berkeley County Schs. 2011 U.S Briefs 461, 2011 U.S. S. Ct. Briefs LEXIS 1910 Oct.28, 2007, Tatro v. University of Minnesota 2010 MN S. Ct. Briefs 1440, 2011 MN S. Ct. Briefs LEXIS 94 Minn. Nov. 7,2011, Cate v. City of Burlington 2012 VT S. Ct. Briefs 227, 2012 VT S. Ct. Briefs LEXIS 65 Vt. Dec. 6, 2012.)

Since the internet is virtually everywhere, schools and courts alike have a tough job distinguishing between punishable grounds and an individual’s right to free speech off of school property. Accessibility to the Internet while on school grounds changes the factor that out of school activities can make their way into the school much easier. This issue makes it hard to both maintain a secular school establishment and protect the rights of the individuals attending those schools.

In his summary, Simon categorizes the case best by saying:

“Ridiculousness and inappropriateness are often the very foundation of humor. The provocative context of these young girls horsing around with objects representing sex organs was intended to contribute to the humorous effect in the minds of the intended teenage audience. As I noted when setting the oral argument, the Supreme Court has said a narrow, succinctly articulable message is not a condition of constitutional protection,”(T.V v Smith-Green Community School Corporation NO. 1:09-CV-290-PPS. Pg. 10.)

Colleges Still Suppress Students Despite Promoting Free of Speech

Regan_1

By Matt Regan

In June of 2012, a Traditional Values student group in Ohio was told by police they could not hold up their signs and had to place them face down. This act violated the groups First Amendment rights to express their opinion.

According to this article from WND, the Thomas More Society helped bring about a federal lawsuit against Sinclair Community College in Dayton, Ohio. WND also reported that Bryan Kemper, a speaker at the event, had witnessed this all unfold.

“The police walked around the crowd telling people to put their signs down, that they could not hold them in their hands,” said Kemper.

The police’s reasoning for requiring the protesters to put down their signs was because another group complained that the signs had been disruptive. However the school had no policy that did not allow the students to hold up their signs. According to the report filed by the Thomas More Society “it is a fundamental First Amendment law that the content of free speech, no matter how ‘offensive’ it may be to certain onlookers, deserves the very highest degree of legal protection.”

Where and how students protest on college campuses throughout the country has long been the subject of First Amendment challenges. Since the Vietnam War, campus police and their government authorities have attempted to silence protests. A more notable example is the shootings that happened at Kent State. Students protested the expansion of the Vietnam War and unexpectedly faced gunfire by the National Guardsmen. The shooting ended with four dead and nine others wounded.

In Clayton Smith v. Tarrant County College District, the school banned their students from wearing empty holsters on their belts as protest (Case 4:09-cv-00658-Y). The group running the protest, Students for Concealed Carry on Campus, was seeking to have state and college authorities, allow students who are licensed, to carry a concealed firearm on campus.

Smith had told the school they would be holding this protest throughout campus and was told he could not pass out pamphlets. They also told him he could not talk outside of the ‘Free speech zone’. He canceled the event.

Later in 2009, the group attempted another protest and the school again turned down Smith and said that their policy had changed. Following, Smith filed a lawsuit under 42 U.S.C. § 1983 on November 3, 2009. In the end the school was found to be denying first amendment rights by designating free speech zones and keeping out areas that are normally considered public forums. However the court found that classrooms are subject to more regulation than other areas.

In the case involving Sinclair Community College, they decided to pay the attorney’s fees and also revise their policy. The new policy would make Sinclair Community a much more free speech friendly area.

Peter Breen, executive director and legal counsel of the Thomas More Society, was quoted by WND saying, “Freedom of expression is an absolutely fundamental value in a democratic, self-governing society and indispensable to the educational process.”

Does Freedom of Speech Apply to Muslim Students?

Dias_1

By Wafai Dias

Over the past years the Palestinian-Israeli conflict has consistently been reported in the American media. In 2009, Israel invaded Gaza in “Operation Cast Lead,” leaving over 1,400 Palestinians dead (Btselem Dec. 27, 2009.) When students at the University of California Irvine campus found out that the Israeli Ambassador to the U.S., Michael Oren was going to give a speech at their University, they planned to protest his speech. On Feb. 8, 2010, 11 students stood up and one by one, at different times they confronted Oren with remarks such as “Michael Oren, propagating murder is not free speech,” and “It is a shame that this University has sponsored a mass murderer like yourself.” All 11 of them were arrested right after they protested and were released after three hours. Out of the 11 students, 10 were found guilty by the Orange County Superior Courthouse of violating:

  • Section 403 of the Penal Code, disrupting an assembly or meeting, a misdemeanor, without authority of law, did willfully and unlawfully disturb and break up a lawful assembly and meeting
  • Section 182(a) (1) of the Penal Code (Conspiracy to commit a crime), a misdemeanor, they unlawfully conspired together to commit the crime of disturbing an assembly and meeting, in violation of section 403 of the penal code.

Three of the students were from UC’s Riverside campus. Dan Stromer, a lead attorney of the defendants stated that this misdemeanor law in California criminalized forms of political speech that are protected in the U.S. constitution(SouthernCalifornia Public Radio, “Irvine 11attorneys file appeal,” Oct. 19, 2011.) In their appeal the defense attorneys’ stated that the students were convicted on the basis of an unconstitutionally vague state law prohibiting the willful disturbance of meetings (Daily Pilot, “Muslim students appeal conviction,” Jan. 23, 2013.) This case also started a debate of whether the students’ or Oren’s free speech rights were violated, and also if the district attorney’s office should have filed criminal charges in the first place. (DailyPilot, “Muslim Students Appeal Conviction,”Jan. 23, 2013.) One of the 10 students, Osama Shabaik, stated that the group wanted to host a University of Chicago style protest (Uprising Radio, Two Irvine 11 Students Share Their Story, Sept. 29, 2011.) Earlier in 2009 when the former Israeli Prime Minister Ehud Olmert spoke at the University of Chicago over 30 attendees including students and community residents disrupted his speech (ABC 7 News, “Groups Protest Former Israeli PM’s speech,” Oct. 16, 2009.) However, none of these students or community members were arrested or charged with misdemeanors. In the “Irvine 11” case one of the students was dropped from all charges due to the DA’s inability to bring charges against him. He agreed to complete 40 hours of community service and accepted a plea bargain (Orange County Register, “Case Dismissed Against Muslim Student,” Oct. 7, 2011.) Reem Salahi one of the defendant’s lawyers stated, “These types of protests happen all the time. It is actually very rare, completely uncommon for individuals to be prosecuted under Penal Code 403. That’s exactly what happened in this case”(University of Southern California, “Irvine 11 Attorney Reem Salahi Speaks On Implications Of The Case Oct. 5, 2011.) She also stated that she believed that it was more of a case against the content of what they said versus conduct. The Muslim Students Union was suspended after the protest. Since the Irvine 11 included several board members of the organization the prosecutors used a subpoena and gained access to the student’s emails in which they later used as evidence to prosecute the students for conspiracy to disrupt a meeting (Orange County District Attorney Press Release, Sep, 23, 2011.) Since all of the 10 students have clean records the judge sentenced them to three years of informal probation, 56 hours of community service and a $270 fine for each to pay. As of now all of them are no longer on probation and their defense attorney’s have appealed the guilty verdict.

*Photo Credit – Irvine 11 Facebook page  (A supporter of the Irvine 11 wore a “Silenced” shirt, during a rally in support of the Irvine 11.)