Corlett v. Oakland University Board of Trustees et al
OPINION AND ORDER granting 12 Motion to Dismiss. Signed by District Judge Patrick J. Duggan. (MOre)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
JOSEPH M. CORLETT,
Case No. 13-11145
Honorable Patrick J. Duggan
OAKLAND UNIVERSITY BOARD
OF TRUSTEES, GARY RUSSI, in his
individual and official capacity as the President
of Oakland University, MARY BETH SNYDER,
in her individual and official capacity as
Vice President for Student Affairs and Enrollment
Management of Oakland University,
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO
DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FEDERAL RULE
OF CIVIL PROCEDURE 12(b)(6)
Justice Sutherland taught us that a “nuisance may be merely a
right thing in the wrong place,– like a pig in the parlor instead of the
barnyard.” Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S. Ct.
114, 118, 71 L.Ed. 303 (1926). Vulgar language, like vulgar animals,
may be acceptable in some contexts and intolerable in others. See
FCC v. Pacific Foundation, 438 U.S. 726, 750, 98 S. Ct. 3026, 3041,
57 L.Ed.2d 1073 (1978). Indeed, even ordinary, inoffensive speech
may be wholly unacceptable in some settings. . . .
Bethel School District No. 403 v. Fraser, 478 U.S. 675, 696, 106 S. Ct. 3159, 3171
(1986) (Marshall, J., dissenting). When Plaintiff referred to his Oakland
University English professor as “stacked” and graphically compared her to a
sitcom character he fetishized in a writing assignment, he brought a pig into the
parlor. Such expressions, while possibly appropriate in some settings, need not be
tolerated by university officials. Therefore, and for the additional reasons set forth
herein, the Court is granting Defendants’ motion to dismiss Plaintiff’s Complaint.
On March 15, 2013, Plaintiff initiated this action claiming that his federal
constitutional rights were violated when Defendants disciplined him in response to
writings he submitted for his English course at Oakland University (“OU”).
Specifically, in his Complaint Plaintiff asserts that Defendants: (1) retaliated
against him for constitutionally protected speech in violation of the First
Amendment; (2) treated him differently than similarly situated students in violation
of his Equal Protection rights under the Fourteenth Amendment; (3) maintain an
“Unlawful Individual Activities” policy that is vague and therefore violates the
First Amendment and Fourteenth Amendment’s Due Process Clause; (4) engaged
in viewpoint discrimination in violation of the First Amendment by applying the
Unlawful Individual Activities policy to his speech; and (5) maintain and applied
an over-broad Unlawful Individual Activities policy to his activities. For relief,
Plaintiff seeks (1) a declaratory judgment stating that OU’s Unlawful Individual
Activities Policy is facially and as-applied unconstitutional; (2) preliminary and
permanent injunctions restraining Defendants’ enforcement of the policy; (3) a
declaratory judgment that Defendants’ disciplinary proceedings against Plaintiff
violated his rights under the First and Fourteenth Amendments;1 (4) an order
requiring Defendants to expunge any and all mention of the disciplinary
investigation and proceedings against Plaintiff from school records; (5) a
preliminary and permanent injunction requiring OU to grant Plaintiff the credit and
a grade for the English course; (6) compensatory damages in the amount of
$2,200,000.00; (7) exemplary or punitive damages; and (8) fees, costs, and interest.
Presently before the Court is Defendants’ motion to dismiss the Complaint,
filed pursuant to Federal Rule of Civil Procedure 12(b)(6) on April 30, 2013. In
accordance with a stipulation reached by the parties, Plaintiff filed a response to
the motion on May 31, 2013 and Defendants filed a reply brief on June 14, 2013.
The Court held a motion hearing on July 9, 2013.
Notably, Plaintiff does not allege that his procedural due process rights were
violated with respect to the disciplinary process.
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
tests the legal sufficiency of the complaint. RMI Titanium Co. v. Westinghouse
Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996). Under Federal Rule of Civil
Procedure 8(a)(2), a pleading must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.” To survive a motion to
dismiss, a complaint need not contain “detailed factual allegations,” but it must
contain more than “labels and conclusions” or “a formulaic recitation of the
elements of a cause of action . . .” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555, 127 S. Ct. 1955, 1964-65 (2007). A complaint does not “suffice if it tenders
‘naked assertions’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 , 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 557,
127 S. Ct at 1966).
Plaintiff argues in a footnote to his response brief that Defendants assert an
improper summary judgment motion at this stage of the proceedings, stating: “Although
fashioned as a Motion to Dismiss, Defendants’ Motion makes numerous arguments that
are not about the legal sufficiency of the claims, but instead argue, as one would at
summary judgment, that the claims fail as a matter of law. . . .” (Pl.’s Resp. at 2 n.1, ECF
No. 16.) There is no difference, however, between an argument that asserts legal
insufficiency and one that asserts that a claim fails as a matter of law. Regardless of how
worded, a motion (1) brought as a responsive pleading, (2) that assumes the truth of the
facts alleged in the plaintiff’s complaint, and (3) contends that those facts do not state the
legal claims asserted, is a motion to dismiss properly brought at this stage of the
proceedings under Rule 12(b)(6).
As the Supreme Court provided in Iqbal and Twombly, “[t]o survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly,
550 U.S. at 570, 127 S. Ct. at 1974). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556, 127 S. Ct. at 1965). The plausibility standard “does not
impose a probability requirement at the pleading stage; it simply calls for enough
facts to raise a reasonable expectation that discovery will reveal evidence of illegal
[conduct].” Twombly, 550 U.S. at 556, 127 S. Ct. at 1965.
In deciding whether the plaintiff has set forth a “plausible” claim, the court
must accept the factual allegations in the complaint as true. Id.; see also Erickson
v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007). This presumption,
however, is not applicable to legal conclusions. Iqbal, 556 U.S. at 668, 129 S. Ct.
at 1949. Therefore, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. (citing Twombly,
550 U.S. at 555, 127 S. Ct. at 1965-66).
When the economy took a downturn, Plaintiff, then an almost fifty-six year
old, self-employed licensed residential builder, returned to school to obtain his
associate and then bachelor degrees. (Compl. ¶¶ 12-16, Ex. G at 2.) After
obtaining an associate degree from Oakland Community College in December
2010, Plaintiff pursued his bachelor degree by enrolling as a full-time student at
OU in Fall 2011. (Id.) To satisfy OU’s writing requirements, Plaintiff enrolled in
“English 380: Advanced Critical Writing” taught by Professor Pamela Mitzelfeld
Mitzelfeld provided course participants with a syllabus that outlined inter
alia the course, student responsibilities, and course assignments. (Compl. Ex. A.)
The latter included the submission of various individual essays and a “Writer’s
Daybook.” (Id.) During the semester, Plaintiff wrote and submitted several essays
that incorporated sexual themes, including one essay that consisted of Plaintiff’s
“personal recollection of several incidents involving [him] accidentally witnessing
in public the brief exposure of women’s breasts.” (Id. ¶¶ 20, 23.) In another essay,
Plaintiff writes about his flirtations with a woman karaoke singer during an
evening out without his wife. (Compl. Ex. D.)
Mitzelfeld provided students with a handout that described the “Writer’s
Daybook” assignment. (Id. Ex. E.) The handout generally describes 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.”
(Id.) The handout provides “[t]he following points” to “help [students] begin the
process” including that the Daybook should contain, but is not limited to:
"New vocabulary defined and used in a sentence . . .
"Passages of interest from each reading assignment, with an
"Responses to all EE [“The Eloquent Essay”- on of the required
course texts] and King [Stephen King’s “On Writing: A Memoir of the
Craft”- another required text] readings
"Freewriting/brainstorming for essay assignments
"Daybook assignments and in-class writing prompts
"Observation logs: People, places, etc.
"Creative entries of your own
(Id.) Mitzelfeld advises students “that the Daybook will be randomly reviewed
three times during the semester.” (Id.)
According to Plaintiff, he asked Mitzelfeld on the first day of the class
whether any topics were restricted or prohibited for the Daybook. (Compl. ¶ 27.)
Plaintiff alleges that “Mitzelfeld emphatically replied ‘no’ . . . and that she wanted
the ‘raw stuff’ (i.e., no edits or second guessing) to be captured in the Daybook.”
(Id.) Plaintiff understood this response to give him leeway to write two entries, on
September 10 and 23, 2011 respectively, entitled “Hot for Teacher.” (Id. ¶¶ 29,
In the first entry, Plaintiff describes various teachers to whom he has felt
sexually attracted in the past, including an English instructor (not Mitzelfeld) who
he claims allowed her skirt to come unzipped and exposed her panties in class one
day. (Id. Ex. F at 3.) Plaintiff proceeds:
Then there’s Ms. Mitzelfeld. English 380. She walks in and I
say to myself “Drop, motherfucker, drop.” Kee-Rist, I’ll never learn a
thing. Tall, blond, stacked, skirt, heels, fingernails, smart, articulate,
smile. I’m toast but I stay. I’ll fuck up my whole Tuesday-Thursday
class thing if I drop. I’ll search for something unattractive about her.
No luck yet. Shit.
I’m in the student lounge an hour before class and slightly
caffeinated. I’ve had a few worries lately, the first that Lynne Anne,
my wife, would read this. But now I don’t care. I suppose my fear is
a good sign that I’m writing honestly.
The second worry was re-reading what I’ve previously written
while drinking. It’s not as bad as I thought and I’m determined to
keep the no-page-tear-out rule. I swear too much when I drink.
SPACE FOR YOU TO WRITE STUFF:9
(Id.) In his September 23, 2011 entry, entitled “Hot For Teacher Continued . . .”,
Plaintiff begins by posing the “eternal male question”: “Ginger or Maryanne?”,
referring to two of the female characters in the television sitcom Gilligan’s Island.
(Compl. Ex. G.) As Plaintiff describes, Ginger is a “glamorous actress” and
Maryanne is “the buxom farm girl.” (Id.) Plaintiff describes himself as “a Ginger
man,” and then identifies Mitzelfeld as “[his] Ginger.” (Id.)
On or about November 1, 2011, with a quarter of the course remaining,
Mitzelfeld collected Plaintiff’s Daybook for the first time for review. (Compl.
¶ 31.) On or about November 2, 2011, Plaintiff received a telephone call from
Glenn McIntosh, at the time OU’s Assistant Vice President for Student Affairs and
Dean of Student Life, asking Plaintiff to come to his office later that day for a
meeting. (Id. ¶¶ 32, 33.) At the meeting, Plaintiff 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. (Id. ¶ 34.) The following week, when
Plaintiff heard nothing more, he believed he could resume attending Mitzelfeld’s
course and he did so on or about November 8, 2011. (Id. ¶ 36.) Mitzelfeld,
however, in front of Plaintiff’s classmates, summoned the OU Police Department
to escort him from the classroom. (Id. ¶¶ 37, 38.)
McIntosh subsequently apologized to Plaintiff for not informing him that he
would no longer be permitted to attend Mitzelfeld’s course for the remainder of the
semester. (Id. ¶ 39.) McIntosh also offered Plaintiff a monetary refund for the
course enrollment in exchange for Plaintiff’s withdrawal from the class. (Id. ¶ 40.)
Plaintiff declined because he had completed nearly an entire semester’s worth of
work for the class by that time. (Id. ¶ 40.)
Plaintiff then turned to the Foundation for Individual Rights in Education
(“FIRE”). According to a letter FIRE sent OU’s President Gary Russi on
December 16, 2011, Mitzelfeld had announced to various OU officials in a
November 23 email that “she was ‘officially filing a claim of sexual harassment’
against [Plaintiff] . . ..” (Compl. Ex. H at 2.) In another email on November 29,
the FIRE letter states, Mitzelfeld indicated that Plaintiff “had ‘written letters to our
school newspaper defending the right to carry concealed weapons on campus’ and
that she had been ‘afraid to go to the ladies restroom . . . because someone
informed [her] that [Plaintiff] was in the library.’” (Id.) According to FIRE,
Mitzelfeld stated that “‘[e]ither [Plaintiff] leaves campus or I do.’” (Id.) On
December 1, Plaintiff was informed that disciplinary action was being taken
against him. (Id. at 3.)
On December 7, 2011, Plaintiff met with McIntosh and OU’s Vice President
for Student Affairs and Enrollment Management Mary Beth Snyder (“Snyder”).
(Id.) At the meeting, Plaintiff was given a letter from Snyder expressing concerns
about Plaintiff’s writings about Mitzelfeld, as well as other conduct including “an
argument with student journalists, a phone call to a classmate regarding an
assignment, and sending some of his creative writing to another of his writing
On or about January 3, 2012, Plaintiff was informed that a University
Conduct Committee hearing would be held on January 6, 2012 to address his
alleged violation of Regulation 6.02 of OU’s Ordinances and Regulations, titled
“Unlawful Individual Activities” (hereafter “Regulation 6.02”). (Compl. ¶ 46.)
Regulation 6.02 reads in full:
No person shall engage in any activity, individually or in concert with
others, which causes or constitutes a disturbance, noise, riot,
obstruction or disruption that obstructs or interferes with the free
movement of persons about the campus or which interferes with the
free, normal, and uninterrupted use of the campus for educational
programs, business activities and related residential, food service and
recreational activities, nor shall any person in any way intimidate,
harass, threaten or assault any person engaged in lawful activities on
(Id.) Plaintiff reported for the January 6 hearing; however, it was postponed until
The details of these accusations/events are not included in Plaintiff’s Complaint.
Some information concerning Plaintiff’s phone call to a classmate (referred to in FIRE’s
letter) can be gleaned from one of Plaintiff’s Daybook entries, but that entry is not
attached to the Complaint. Instead the entry is appended to Defendants’ motion to
dismiss, along with all of Plaintiff’s Daybook entries. Defendants take the position that
the Court can consider entries not attached to Plaintiff’s Complaint as documents that are
referred in and central to the Complaint. (Defs.’ Mot. at 1, ECF No. 12.) However, the
Court is not convinced that Defendants are correct with respect to these document.
Moreover, the Court’s ability to decide Defendants’ motion is not dependant on
information in the additional Daybook entries. The contents of Plaintiff’s entire Daybook
and the details of the other accusations/events might be relevant if the Court had to judge
the appropriateness of OU’s punishment. However, for the reasons discussed infra, the
Court does not find that this determination rests with it.
January 19, 2012 when it was discovered that he was not provided the required
pre-hearing notice. (Id. ¶ 49.)
The hearing went forward on January 19, 2012 before five OU faculty
representatives and one student representative, with Plaintiff in attendance. (Id.
¶ 51.) The hearing board eventually determined that Plaintiff had violated
Regulation 6.02 and issued the following sanctions:
•University Disciplinary Suspension for Winter, Summer, and Fall
•Not accepting as transfer credit any credit earned during the
•deeming Plaintiff “persona non grata” on campus during the
suspension period, meaning that he was restricted from entering the
entire OU campus or being subject to arrest for criminal trespass;
•Placing him on University Disciplinary Probation for the duration of
his attendance at OU;
•Deferring his Winter 2013 suspension (i.e., he could enroll and
participate in Winter 2013 classes with the presentation of evidence
that he participated in counseling for sensitivity issues); and
•Barring Plaintiff from having contact with Mitzelfeld or taking any
courses from her during the duration of his attendance at OU.
(Id. ¶ 58, Ex. L.) Plaintiff filed an appeal, which Snyder denied on or about March
5, 2012. (Id. ¶¶ 59, 60, Exs. M, N.) This lawsuit followed.
Defendants’ Arguments and Plaintiff’s Response
In their motion to dismiss, Defendants group Plaintiff’s five claims into two
categories: (1) those claims that are based on the allegation that Defendants
violated Plaintiff’s right to free speech (Counts I, II, and IV) and (2) those claims
that challenge Regulation 6.02 (Counts III and V). Defendants argue that under the
“curricular speech doctrine” discussed by the Supreme Court in Hazelwood School
District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562 (1988), and by the Sixth
Circuit in Ward v. Polite, 667 F.3d 727 (2012), Plaintiff’s Daybook entries are
entitled “to slim protection” which was “negated because Defendants had a
legitimate educational and pedagogical bases for restricting and punishing [that
speech].” (Defs.’ Mot. ¶ 3.) Defendants contend that Regulation 6.02 is neither
overly-broad nor vague. Defendants alternatively argue that the individual
defendants are immune from suit under the qualified immunity doctrine.
Plaintiff argues in response that the curricular speech doctrine does not apply
to the circumstances of this case, and that the applicable standard is the “substantial
disruption” test set forth by the Supreme Court in Tinker v. Des Moines
Independent School District, 393 U.S. 503, 89 S. Ct. 733 (1969). Plaintiff
contends that there was no indication that his Daybook entries threatened such a
disruption to the functioning of OU and thus his free speech rights were violated in
the manners alleged. Plaintiff also argues that Regulation 6.02 is over-broad and
vague, as evidenced by its unlawful application to his free speech. With respect to
Defendants’ qualified immunity argument, Plaintiff contends that it was clearly
established that students retain free speech rights in the university setting and that
the contents of his Daybook entries “do not remotely implicate the types of
speech that the Supreme Court has determined do not fall under the First
Amendment.” (Pl.’s Resp. Br. at 18, ECF No. 16.) In a footnote, Plaintiff lists the
“few, narrow, and well-settled” types of speech the Supreme Court has found not
protected by the First Amendment: obscenity, defamation, commercial fraud,
incitement, true threats of violence, fighting words, and child pornography. (Id. at
18-19 n.6, citations omitted.)
Applicable Law and Analysis
Aside from Plaintiff’s claims that Regulation 6.02 in and of itself is vague
and over-broad (i.e. as written rather than as applied to his conduct), the success of
his claims is dependent upon a finding that he engaged in protected speech.
First Amendment Protection in the School Context
As this Court remarked recently when addressing another free speech case
arising in a school setting, tension exists between the rights of students to engage
in free speech as protected by the First Amendment and the interests and
responsibilities of schools to provide “a safe atmosphere conducive to learning.”
See Glowacki v. Howell Pub. Sch. Dist., No. 2:11-cv-15481, 2013 WL 3148272, at
*1 (E.D. Mich. June 19, 2013) (unpublished op.). Another district court analyzing
a Ohio University student’s free speech claims recently summarized this tension
and some of the applicable case law as follows:
The United States Court of Appeals for the Sixth Circuit has
recognized that freedom of speech claims in school settings “implicate
two strands of law that occasionally run into each other.” Ward v.
Polite, 667 F.3d 727, 732 (6th Cir. 2012). On the one hand, “public
schools are not expression-free enclaves.” Id. Accordingly, to
regulate speech because it occurs on school grounds school officials
must “reasonably forecast that such displays could cause substantial
disruption or materially interfere with the learning environment.”
Defoe ex rel. Defoe v. Spiva, 625 F.3d 324, 335 (6th Cir. 2010) (citing
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514, 89
S. Ct. 733, 21 L.Ed.2d 731 (1969)). “Moreover, “the free-speech
clause generally prohibits suppressing speech because of its message,
and the Court has enforced that prohibition in the public school–
indeed the university– setting.” Ward, 667 F.3d at 733 (internal
On the other hand, “a school need not tolerate student speech
that is inconsistent with its basic educational mission . . ..”
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S. Ct. 562,
98 L.Ed.2d 592 (1988) . . . Relatedly, “universities have considerable
authority to control their own speech.” Ward, 667 F.3d at 732.
“Foremost among a school’s speech is its selection and
implementation of a curriculum– the lessons students need to
understand and the best way to impart those lessons– and public
schools have broad discretion in making these choices.” Id.
Accordingly, “public educators may limit ‘student speech in schoolsponsored expressive activities so long as their actions are reasonably
related to legitimate pedagogical concerns.’” Id. at 733 (quoting
Hazelwood, 484 U.S. at 273).
Winkle v. Ruggieri, No. 2:12-cv-01079, 2013 WL 230136, at *4 (S.D. Ohio Jan.
22, 2013) (unpublished op.) (brackets omitted). In short, the leeway granted
educators to curtail speech within the school gates depends on the content of the
student’s speech and the context surrounding its making.
One scenario arises where expressions of opinion happen to occur within the
school gates, as presented in Tinker. In Tinker, students were suspended for
wearing black armbands in protest of the Vietnam War. The Court specifically
noted what the case did and did not involve:
The problem posed by the present case does not relate to
regulation of the length of skirts or the type of clothing, to hair style
or deportment. . . . It does not concern aggressive, disruptive action or
even group demonstrations. Our problem involves direct, primary
First Amendment rights akin to “pure speech.”
Tinker, 393 U.S. at 507-08, 89 S. Ct. at 737 (internal citations omitted). To justify
the prohibition of a particular expression of opinion, the Court held that the school
must “show that its action was caused by something more than a mere desire to
avoid the discomfort and unpleasantness that always accompany an unpopular
viewpoint.” Id. at 509, 89 S. Ct. at 738. The school must find that the “conduct
would materially and substantially interfere with the requirements of appropriate
discipline in the operation of the school.” Id. (internal quotation marks and citation
This Court applied Tinker in Barber v. Dearborn Public Schools, 286 F.
Supp. 2d 847, 856 (E.D. Mich.2003), where a student was disciplined for wearing
a t-shirt critical of then President George W. Bush and, in Glowacki, where a
student expressed his rejections of homosexuals based on his religious beliefs
during a classroom discussion. 2013 WL 3148272, at *7. The Sixth Circuit
similarly applied Tinker where students were disciplined for wearing t-shirts
depicting a confederate flag when they did so “as both a commemoration of Hank
Williams, Sr.’s birthday as well as a statement affirming the plaintiffs’ shared
southern heritage.” Castorina ex rel. Rewt v. Madison Cnty. Sch. Bd., 246 F.3d
536, 539-40 (6th Cir. 2001). The court thus concluded that the students intended to
convey a particularized message, in other words engaged in viewpoint-specific
Quite a different scenario is presented when a student engages in
“offensively lewd and indecent” speech. In Bethel School District No. 403 v.
Fraser, the Supreme Court was presented with high school administrators’
discipline of a student who, at a school assembly, gave “a lewd speech” in that he
described the individual he was nominating for student elective office in terms of
an “elaborate, graphic, and explicit sexual metaphor.” 478 U.S. 675, 677, 106 S.
Ct. 3159, 3161 (1986). Focusing more on the content of the nominating speech
than its location, the Fraser Court held that the school “acted entirely within its
permissible authority in imposing sanctions upon [the student] in response to his
offensively lewd and indecent speech.” Id. at 685, 106 S. Ct. at 3165.
Distinguishing the case before it from Tinker, the Court reasoned:
Unlike the sanctions imposed on the students wearing armbands in
Tinker, the penalties imposed in this case were unrelated to any
political viewpoint. The First Amendment does not prevent the school
officials from determining that to permit a vulgar and lewd speech
such as respondent’s would undermine the school’s basic educational
mission. A high school assembly or classroom is no place for a
sexually explicit monologue directed towards an unsuspecting
audience of teenage students. Accordingly, it was perfectly
appropriate for the school to disassociate itself to make the point to
the pupils that vulgar speech and lewd conduct is wholly inconsistent
with the “fundamental values” of public school education.
Id. at 685-86, 106 S. Ct. at 3165.
The Fraser Court further reasoned that schools must be granted leeway to
evaluate what manner of speech, although appropriate in matters of adult public
discourse, is inappropriate in the school setting. Id. at 682-83, 106 S. Ct. at 3164.
The Court explained:
The First Amendment guarantees wide freedom in matters of adult
public discourse. A sharply divided Court upheld the right to express
an antidraft viewpoint in a public place, albeit in terms highly
offensive to most citizens [a jacket bearing the words “Fuck the
Draft”]. See Cohen v. California, 403 U.S. 15, 91 S. Ct. 1780, 29
L.Ed.2d 284 (1971). It does not follow, however, that simply because
the use of an offensive form of expression may not be prohibited to
adults making what the speaker considers a political point, the same
latitude must be permitted to children in a public school. . . . [T]he
constitutional rights of students in public school are not automatically
coextensive with the rights of adults in other settings. As cogently
expressed by Judge Newman, “the First Amendment gives a high
school student the classroom right to wear Tinker’s armband, but not
Cohen’s jacket.” Thomas v. Board of Education, Granville School
Dist., 607 F.2d 1043, 1057 (2d Cir. 1979) (opinion concurring in
Fraser, 478 U.S. at 682, 106 S. Ct. at 3164 (additional internal citations omitted).
According to the Court, schools have an obligation to do more than teach students
the curriculum; schools must teach students how to behave appropriately in a
Surely it is a highly appropriate function of public school
education to prohibit the use of vulgar and offensive terms in public
discourse. Indeed, the “fundamental values necessary to the
maintenance of a democratic political system” disfavor the use of
terms of debate highly offensive or highly threatening to others.
Nothing in the Constitution prohibits the states from insisting that
certain modes of expression are inappropriate and subject to sanctions.
The inculcation of these values is truly the “work of the schools.”
Tinker, 393 U.S., at 508, 89 S. Ct., at 737; see Ambach v. Norwick,
[441 U.S. 68, 99 S. Ct. 1589 (1979)]. The determination of what
manner of speech in the classroom or in school assembly is
inappropriate properly rests with the school board.
The process of educating our youth for citizenship in public
schools is not confined to books, the curriculum, and the civics class;
schools must teach by example the shared values of a civilized social
order. Consciously or otherwise, teachers– and indeed the older
students– demonstrate the appropriate form of civil discourse and
political expression by their conduct and deportment in and out of
class. Inescapably, like parents, they are role models. The schools, as
instruments of the state, may determine that the essential lessons of
civil, mature conduct cannot be conveyed in a school that tolerates
lewd, indecent, or offensive speech and conduct such as that indulged
in by this confused boy.
Id. at 683, 106 S. Ct. at 3164.
Two years later, the Supreme Court in Hazelwood again espoused the role of
schools to shape students into civil citizens:
A school must be able to set high standards for the student speech that
is disseminated under its auspices– standards that may be higher than
those demanded by some newspaper publishers or theatrical producers
in the “real” world– and may refuse to disseminate student speech that
does not meet those standards. In addition, a school must be able to
take into account the emotional maturity of the intended audience in
determining whether to disseminate student speech on potentially
sensitive topics, which might range from the existence of Santa Claus
in an elementary school setting to the particulars of teenage sexual
activity in a high school setting. A school must also retain the
authority to refuse to sponsor student speech that might reasonably be
perceived to advocate drug or alcohol use, irresponsible sex, or
conduct otherwise inconsistent with “the shared values of a civilized
social order,” Fraser, supra, 478 U.S., at 683, 106 S.Ct., at 3164, or to
associate the school with any position other than neutrality on matters
of political controversy. Otherwise, the schools would be unduly
constrained from fulfilling their role as “a principal instrument in
awakening the child to cultural values, in preparing him for later
professional training, and in helping him to adjust normally to his
environment.” Brown v. Board of Education, 347 U.S. 483, 493, 74
S.Ct. 686, 691, 98 L.Ed. 873 (1954).
Hazelwood, 484 U.S. at 272, 108 S. Ct. at 570.
While universities arguably may not bear the same responsibility as
elementary and secondary schools to act in loco parentis, see, e.g., McCauley v.
Univ. of the Virgin Islands, 618 F.3d 232, 242-47 (2010), universities undoubtedly
retain some responsibility to teach students proper professional behavior, in other
words, to prepare students to behave and communicate properly in the workforce.
See, e.g., Ward v. Polite, 667 F.3d 727 (6th Cir. 2011); Tatro v. Univ. of
Minnesota, 816 N.W.2d 509, 520 (Minn. 2012). Moreover, the Sixth Circuit has
recognized “the latitude educational institutions– at any level– must have to further
legitimate curricular objectives.” Ward, 667 F.3d at 733. The Ward court
All educators must be able “to assure that participants learn
whatever lessons the activity is designed to teach.” Hazelwood, 484
U.S. at 271, 108 S. Ct. 562. Just as a junior high school English
teacher may fail a student who opts to express her thoughts about a
once-endangered species, say a platypus, in an essay about A Tale of
Two Cities, see Settle, 53 F.3d at 155, so a law professor may fail a
student who opts to express her views about Salvador Dali and the
fourth dimension in a torts exam. That the First Amendment protects
speech in the public square does not mean it gives students the right to
express themselves however, whenever and about whatever they wish
on school assignments or exams. “A school need not tolerate student
speech that is inconsistent with its basic educational mission.”
Hazelwood, 484 U.S. at 266, 108 S.Ct. 562.
To that end, in Hazelwood the Supreme Court granted schools particular
leeway to restrict speech “which is an integral part of the classroom-teaching
function of an educational institution.” Brown v. Li, 308 F.3d 939, 950 (9th Cir.
2002). More exactly, the Hazelwood Court addressed “educator’s authority over
school-sponsored publications, theatrical productions, and other expressive
activities that students, parents, and members of the public might reasonably
perceive to bear the imprimatur of the school.” Hazelwood, 484 U.S. at 271, 108
S. Ct. at 570. The Court held that “[e]ducators are entitled to exercise greater
control over this . . . form of student expression to assure that participants learn
whatever lessons the activity is designed to teach, that readers or listeners are not
exposed to material that may be inappropriate for their level of maturity, and that
the views of the individual speakers are not erroneously attributed to the school.”
Id. “School-sponsored” speech may be restricted without offending the First
Amendment provided the educator’s “actions are reasonably related to legitimate
pedagogical concerns.” Id. at 273, 108 S. Ct. at 571.
In Hazelwood, the Court found that high school administrators did not run
afoul of the First Amendment when they imposed restrictions on the publication of
certain articles in a newspaper published by students in a journalism class. The
Sixth Circuit applied the Hazelwood standard where high school administrators
removed a student’s name from the student council ballot in response to the
student’s “discourteous” and “rude” remarks about the high school’s assistant
principal during a speech at a school-sponsored assembly. Poling v. Murphy, 872
F.2d 757 (1989). The Sixth Circuit also found the Hazelwood standard appropriate
to analyze the decision of elementary school administrators to prevent a fifth grade
student from selling candy canes with a religious card as part of a school project.
Curry ex rel. Curry v. Hensiner, 513 F.3d 570 (6th Cir. 2008).
In the present case, Plaintiff argues that Defendants’ actions must be
analyzed under Tinker’s standard. Defendants maintain that the Court must apply
Hazelwood. Neither standard, however, is the appropriate standard under the facts
presented. Plaintiff’s lascivious entries about Mitzelfeld are not equivalent to the
“pure speech” at issue in Tinker. Plaintiff was not expressing his views on
political, religious, or similar matters (including matters of a public concern). In
other words, he was not engaged in “pure speech.” On the other hand, the Court
does not believe that Plaintiff’s Daybook entries– which were to be reviewed by no
one other than Mitzelfeld– are equivalent to the type of speech analyzed in
Hazelwood involved speech that the Court described as (1) “schoolsponsored”, (2) part of the curriculum or serving curricular goals, and (3)
“bear[ing] the imprimatur of the school.” 484 U.S. at 270-71, 108 S. Ct. at 570.
Nothing in the Court’s decision or the Sixth Circuit’s discussion in Ward suggests
that the Hazelwood Court was setting a standard to apply to all student expression
that happens to occur in a curricular activity. Rather, Hazelwood applies only
where the speech in question reasonably could be construed as representing the
school’s own viewpoint. It is difficult to imagine that anyone would reasonably
perceive Plaintiff’s Daybook writings as bearing “the imprimatur of [OU]” or, as
the Sixth Circuit has noted, “that an observer would reasonably perceive that the
school approved the speech.” Curry ex rel. Curry, 513 F.3d at 577 and n.1
(providing that “[f]or speech to be perceived as bearing the imprimatur of the
school does not require that the audience believe the speech originated from the
school” and finding that students and parents reasonably would have perceived a
student’s sale of candy canes with a religious card as bearing the imprimatur of the
school where products had to be approved by the school prior to sale and this fact
was known to parents and students). “The proposition that schools do not endorse
everything that they fail to censor is not complicated.” Bd. of Educ. of Westside
Cmty. Sch. v. Mergens, 496 U.S. 226, 250, 110 S. Ct. 2356, 2372 (1990)
(O’Connor, J., concurring). This Court then is left with the dilemma of which
standard applies under the circumstances presented.
The Sixth Circuit’s decision in Settle v. Dickson County School Board, 53
F.3d 152 (1995), provides guidance. In Settle, a high school student brought a
First Amendment challenge when her teacher refused to accept a research paper
entitled “The Life of Jesus Christ” and gave her a “zero” for failing to write on
another subject. Id. at 153. The Sixth Circuit found no First Amendment violation
and therefore upheld the district court’s grant of summary judgment to school
officials. The appellate court’s opinion is quoted at length because it clarifies
which disputes arising in the school context raise legitimate free speech issues and
which do not warrant federal court review:
After reviewing the precedents concerning students’ rights of
free speech within a public school, we find few cases that address the
conflict between the student’s rights of speech in the classroom and a
teacher’s responsibility to encourage decorum and scholarship,
including her authority to determine course content, the selection of
books, the topic of papers, the grades of students and similar
questions. Students do not lose entirely their right to express
themselves as individuals in the classroom, but federal courts should
exercise particular restraint in classroom conflicts between student
and teacher over matters falling within the ordinary authority of the
teacher over curriculum and course content. “Courts do not and cannot
intervene in the resolution of conflicts which arise in the daily
operation of school systems and which do not directly and sharply
implicate basic constitutional values.” Epperson v. Arkansas, 393 U.S.
97, 104, 89 S. Ct. 266, 270, 21 L.Ed.2d 228 (1968).
The free speech rights of students in the classroom must be
limited because effective education depends not only on controlling
boisterous conduct, but also on maintaining the focus of the class on
the assignment in question. So long as the teacher violates no positive
law or school policy, the teacher has broad authority to base her
grades for students on her view of the merits of the students’ work.
Board of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 98 S.
Ct. 948, 55 L.Ed.2d 124 (1978); Parate v. Isibor, 868 F.2d 821, 828
(6th Cir. 1989) (“[t]he individual professor’s assignment of a letter
grade is protected speech.”) . . .
. . .Where learning is the focus, as in the classroom, student speech
may be even more circumscribed than in the school newspaper or
other open forum. So long as the teacher limits speech or grades
speech in the classroom in the name of learning and not as a pretext
for punishing the student for her race, gender, economic class, religion
or political persuasion, the federal courts should not interfere.
Like judges, teachers should not punish or reward people on the
basis of inadmissible factors– race, religion, gender, political
ideology– but teachers, like judges, must daily decide which
arguments are relevant, which computations are correct, which
analogies are good or bad, and when it is time to stop writing or
talking. Grades must be given by teachers in the classroom, just as
cases are decided in the courtroom; and to this end teachers, like
judges, must direct the content of speech. Teachers may frequently
make mistakes in grading and otherwise, just as we do sometimes in
deciding cases, but it is the essence of the teacher’s responsibility in
the classroom to draw lines and make distinctions– in a word to
encourage speech germane to the topic at hand and discourage speech
unlikely to shed light on the subject. Teachers therefore must be given
broad discretion to give grades and conduct class discussion based on
the content of speech. Learning is more vital in the classroom than
53 F.3d at 155-56.
In her concurring opinion, Judge Alice Batchelder was more direct in stating
that the case did not raise First Amendment concern. Id. at 156-59. Judge
Although I do not think that the facts in regard to this claim are as
clear as the majority opinion portrays them as being, the material facts
are clear, those facts are not in dispute, and those facts do not state a
First Amendment claim. This case is not about Brittney Settle’s First
Amendment right to express her views, opinions or beliefs, religious
or otherwise, in the classroom. This case is about whether Brittney’s
ninth-grade English teacher may determine what topic is appropriate
to satisfy a research paper assignment in that class.
In my view, these facts simply do not state a constitutional
claim. Ms. Ramsey was not engaged in restricting Brittney’s
expression. She was engaged in restricting Brittney’s choice of topic
for a research paper. Brittney does not expressly claim that a
classroom teacher cannot control the subject matter for such
assignments without violating the students’ rights of expression.
Rather, she claims that the restrictions on this assignment were so
loose that her choice of topic fit the assignment, and that Ms. Ramsey
refused to permit her to use that topic because the topic was religious.
Brittney bolsters her claim by asserting that Ms. Ramsey’s reasons for
refusing to permit the topic were obviously pretextual.
I would agree that some of Ms. Ramsey’s after-the-fact reasons
are not very convincing. And I do not agree with the majority’s
finding that there is no basis in the record for a claim that Ms. Ramsey
was not truthful in stating those reasons. More importantly, however, I
do not think that Ms. Ramsey’s after-the-fact statement of reasons,
even if those reasons were pretextual, were pretexts for suppressing
Brittney’s expression. They were pretexts for an error in judgment.
The one thing which this record demonstrates clearly is that what Ms.
Ramsey was guilty of was failing to provide this ninth-grade class
with substantive guidelines for choosing their research paper topics.
Faced with Brittney’s new and unapproved topic, Ms. Ramsey
realized that the criteria that she had in mind, but had not adequately
explained to the class, limited the acceptable topics well beyond the
general criteria of “interesting, researchable and decent.”
Id. at 157. In short, Judge Batchelder did not join the majority opinion simply
because she found its First Amendment analysis unnecessary:
A research paper is not an expression of opinion, and the restriction of
choice of topic is not readily analogous to the kind of pure expression
of student opinion, that happened to take place in the classroom, that
the Supreme Court addressed [in Tinker].
The bottom line is that when a teacher makes an assignment
even if she does it poorly, the student has no constitutional right to do
something other than that assignment and receive credit for it. It is
not necessary to try to cram this situation into the framework of
constitutional precedent, because there is no constitutional question.
Id. at 158.
The sanctions OU imposed on Plaintiff in response to his Daybook entries
undoubtedly are harsher than the “zero” the plaintiff in Settle received on her essay
assignment. However, like the Sixth Circuit in Settle, this Court does not believe
that it should interfere and assess the appropriateness of the school’s punishment
where First Amendment expression was not involved.
Plaintiff’s expressions of lust for Mitzelfeld or descriptions of her physical
appearance are not entitled to First Amendment protection. “Self-expression is not
to be equated to the expression of ideas or opinions and thus to participation in the
intellectual marketplace.” Brandt v. Bd. of Educ. of City of Chicago, 480 F.3d 460,
465 (7th Cir. 2007). As such, Defendants do not invoke curriculum as a pretext for
engaging in unlawful discrimination, as the Sixth Circuit found was possibly the
case in Ward. It matters not whether Plaintiff’s Daybook writings satisfied the
legal definition of obscenity or sexual harassment. Defendants reasonably could
have found his writings inappropriate from a student to a teacher (as they certainly
would have been from a teacher to a student) and punished him accordingly.
Perhaps some would view Defendants’ punishment as disproportionate to
Plaintiff’s conduct. Perhaps, however, Defendants believed the sanctions were
necessary to emphasize to Plaintiff that, although arguably acceptable in a karaoke
bar, certain behaviors when directed at female professors, fellow students, or future
co-workers are not tolerable in a civilized society. Nevertheless, Defendants’
reasons for exacting the sanctions imposed on Plaintiff are irrelevant, as the Court
concludes that his First Amendment rights were not violated under the facts
alleged. “‘Courts do not and cannot intervene in the resolution of conflicts which
arise in the daily operation of school systems and which do not directly and sharply
implicate basic constitutional values.’” Settle, 53 F.3d at 155 (quoting Epperson,
393 U.S. at 104, 89 S. Ct. at 270).
As such, the Court concludes that Plaintiff’s claims alleging First
Amendment retaliation (Count 1), Fourteenth Amendment Equal Protection Clause
violations (Count 2), and viewpoint discrimination (Count 4) are dismissed
pursuant to Rule 12(b)(6).
Overbreadth and Vagueness Challenges to Regulation 6.024
In his third cause of action, labeled “Violation of Plaintiff Corlett’s Right to
Freedom of Expression and Due Process of Law”, Plaintiff alleges that Regulation
6.02 is vague and thereby allowed Defendants to enforce the policy in a
discriminatory and arbitrary manner against Plaintiff’s protected expression and
conduct. (See Compl. ¶ 93.) Although recognizing that there are “long-established
legal definitions” of the conduct prohibited in Regulation 6.02 (i.e. intimidation,
harassment, threats, and assault) (see id. ¶ 98), Plaintiff alleges that “Defendants
have conditioned compliance with the Unlawful [Individual] Activities Policy on
the subjective emotional experience of the listener” and that “[t]his policy has
limited and prohibited constitutionally-protected speech and conduct without
providing any published, objective, and definitive guidelines by which Plaintiff
Corlett and other students can guide their behavior.” (Id.) Plaintiff’s fourth cause
of action similarly alleges that Regulation 6.02 is unconstitutional in that it is
overbroad when not limited to the legal definitions of the conduct prohibited. (Id.
In their motion to dismiss, Defendants contend that Plaintiff’s conduct also
constituted sexually discriminatory conduct prohibited by OU’s Discriminatory
Harassment policy. (Def.’s Br. in Supp. of Mot. at 2, ECF No. 12.) In response, Plaintiff
argues that this policy also is unconstitutional. (Pl.’s Resp. Br. at 17, ECF No. 16.) OU
did not cite this policy in disciplining Plaintiff and Plaintiff’s Complaint neither mentions
nor challenges the policy. The Court, therefore, is focusing only on Regulation 6.02.
To the extent Plaintiff is alleging in these counts that Regulation 6.02 has
been applied unconstitutionally, his claims fail for the reason discussed above– i.e.,
he was not disciplined for engaging in protected speech. The Court believes that
his Complaint could be construed as alleging that the regulation, on its face, is
overbroad and vague and therefore unconstitutional. In the event that is Plaintiff’s
claim, the Court addresses it below.5
The Sixth Circuit has outlined a step-by-step approach for analyzing an
overbreadth claim. Dambrot v. Central Michigan Univ., 55 F.3d 1177, 1182-83
(1995). First, the court must “‘determine whether the regulation reaches a
substantial amount of constitutionally protected speech.’” Id. at 1182 (quoting
The Court has some concern as to whether Plaintiff has standing to challenge the
Regulation if it was not applied to stifle his protected expression. An individual has
standing to challenge the constitutionality of a statute “if he or she can demonstrate a
realistic and credible threat of enforcement.” Doe v. Univ. of Michigan, 721 F. Supp.
852, 859 (E.D. Mich. 1989) (citing Steffel v. Thompson, 415 U.S. 452, 94 S. Ct. 1209
(1974)). “The mere possibility that a person might be subject to the sanctions of a statute
is insufficient.” Id. (citing United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d
1375 (D.C. Cir. 1984)). “[T]he threat of enforcement must be specific and direct and
against a particular party.” Id. (citing Houston v. Hill, 482 U.S. 451, 459 n.7, 107 S. Ct.
2502, 2508 n.7 (1987)). Plaintiff alleges that “[b]ecause of the University’s onerous
Unlawful [Individual] Activities Policy and intolerance of any students who dissent from
its politically correct orthodoxy, Plaintiff Corlett is unable to engage in a full range of
dialogue on matters of legitimate political, cultural, and/or social concern.” (Compl.
¶ 64.) Plaintiff’s Complaint, however, is devoid of any facts suggesting that Regulation
6.02 poses a “realistic and credible threat” of chilling students’ speech on matters of
legitimate political, cultural, and/or social concern.
Leondardson v. City of E. Lansing, 896 F.2d 190, 195 (6th Cir. 1990)). Next, the
court must “determine whether the policy is ‘substantially overbroad and
constitutionally invalid under the void for vagueness doctrine.’” Id. at 1183
(quoting Leondardson, 896 F.2d at 195). A regulation may be unconstitutionally
vague if it “‘denies fair notice of the standard of conduct to which a citizen is held
accountable’” or if it “‘leaves the definition of its terms to law enforcement
officers, and thereby invites arbitrary, discriminatory and overzealous
enforcement.’” Id. at 1183-84 (quoting Leonardson, 896 F.3d at 195-96).
Plaintiff challenges the final clause of Regulation 6.02 that reads: “nor shall
any person in any way intimidate, harass, threaten or assault any person engaged in
lawful activities on campus.” As Plaintiff acknowledges in his Complaint, the
terms “intimidate”, “harass”, “threaten”, and “assault” each have “long-established
legal definitions.” (Compl. ¶¶ 94-98.) On its face, therefore, Regulation 6.02 does
not “sweep within its ambit a substantial amount of [constitutionally] protected
speech,” and provides fair notice of what conduct is prohibited thereunder.
Plaintiff does not allege any facts in his Complaint to suggest that Regulation 6.02,
like the University of Michigan policy at issue in Doe, has been interpreted to
reach constitutionally protected conduct. See Doe, 721 F. Supp. at 865-66 (setting
forth instances where the university’s anti-harassment policy was applied to
students’ protected speech).
The Court therefore concludes that Plaintiff’s vagueness and overbreadth
challenges to Regulation 6.02 also are subject to dismissal.
The Court concludes that Plaintiff’s Daybook entries, written as part of his
OU English 380 course assignment, are not protected by the First Amendment.
Perhaps the expressions therein would be entitled to constitutional protection if
Plaintiff had made them to the neighbor described in his “My Boobs DVD” essay
or the woman at the karaoke bar described in his “Revenge Karaoke” essay.
However, speech protected in other settings is not necessarily protected when made
in response to a classroom assignment and when directed at one’s professor. Thus
the Court holds as a matter of law that Defendants did not violate Plaintiff’s First
Amendment rights when they disciplined him in response to those writings. As
such, to the extent based on the application of Regulation 6.02 to his speech,
Plaintiff’s challenges to OU’s policy also are subject to dismissal. The Court also
concludes that the policy, on its face, is not void as overbroad or vague.
IT IS ORDERED, that Defendants’ Motion to Dismiss Plaintiff’s
Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) is GRANTED.
Dated: July 23, 2013
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Leonard M. Niehoff, Esq.
Sean F. Crotty, Esq.
Alari K. Adams, Esq.
Kyle J. Bristow, Esq.
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