ASKED & ANSWERED: Kyle Langvardt on First Amendment Protection

By Steve Thorpe Legal News Oakland University is defending its suspension of 57-year-old student Joseph Corlett, saying that his "Hot for the Teacher" essay about an instructor violated the school's policy against harassment and doesn't deserve First Amendment protection. Corlett's lawsuit in federal court in Detroit seeks more than $2 million for mental anguish and the embarrassment of being removed from the university. Assistant Professor Kyle Langvardt joined the University of Detroit Mercy School of Law faculty in the fall of 2012. He most recently was a lecturer in Business Law and Ethics at Indiana University, Bloomington. Prior to that he was an associate with Locke, Lord, Bissell, & Liddell in Chicago. Professor Langvardt's research interests include free speech and religion law. Thorpe: How do you expect the Corlett case to unfold? Langvardt: I don't see merit in the First Amendment claims. To recap the story, Corlett was enrolled in a creative writing course. The "hot" professor assigned students to keep a daily journal, and allowed them to write on any subject whatsoever. She would then check the journals from time to time to make sure the students weren't, as one might suspect, blowing it off. Corlett took the open-ended nature of the assignment, together with some high marks he had earned on other papers he had written on sexual topics, as an invitation to let the professor know he was fantasizing about her "stacked" body. (Ladies, I'm sorry to report that this man is taken.) Oakland suspended him for three semesters and conditioned his readmission on sensitivity training. Corlett and his lawyers now claim that "because of the University's ... 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." And the Foundation for Individual Rights in Education, which has given Corlett's crusade a lot of attention (and which has done important work elsewhere), recites a lot of lofty generalities about the academy as a place where the discussion of ideas should be almost uniquely unfettered. But let's be clear: "Hot for Teacher" was never meant to reach an audience beyond Corlett's professor. It was a private note passed from him to her to let her know that he was staring. It was never headed for any marketplace of ideas. It's therefore hard for me to see how the case meaningfully implicates any genuine interest in academic freedom. This is a mundane hostile work environment case, and Oakland would have risked liability if it hadn't acted. Corlett is not so much Socrates drinking the hemlock as Anthony Weiner alone at the computer at 2 a.m. Understand that I don't mean to downplay the tension between speech rights and sexual harassment policies. Sexual harassment policies target speech for content as well as for viewpoint, which is rarely permitted elsewhere. Moreover, they do so outside of the various categories of traditionally "unprotected" speech. (Corlett's "Hot for Teacher," for instance, is neither "fighting words" nor a "true threat.") It is concerning when sexual harassment policies are construed to kick in whenever a plaintiff takes offense to workplace discussion of sex or gender. But a lot of speech-rights concerns melt away when, as in Corlett's case, the speech is strictly private and targeted at an unwilling plaintiff. Thorpe: In the balancing act between academic freedom and providing a positive atmosphere, schools seem to be tilting toward "hate speech" codes and restrictions on speech. In general, how are the courts reacting to this trend? Langvardt: Some university speech codes have fallen in litigation because they articulate vague and overbroad standards, referring to "offensive" speech, for instance, as the sort of thing that students should avoid. The University of Michigan ran into trouble for that sort of thing a couple of decades ago. Other speech codes have attempted to address the problem of hate speech-racist talk and so on. But ever since the Supreme Court decided RAV v. St. Paul in the mid-90s, hate speech laws have been held to discriminate impermissibly on content and viewpoint. Since then, a lot of schools have repackaged their hate speech codes as anti-harassment codes. These schools still mess up occasionally by bringing harassment charges for conduct that, while perhaps highly offensive, nonetheless fails to create the sort of hostile work environment that would ordinarily justify a harassment claim. One troubling tendency in universities is to designate 1 percent of the campus a "free speech zone" and either prohibit or pre-screen expressive activities elsewhere. At least one court has recognized that these policies go too far, and a number of schools have relented under threat of litigation. Thorpe: When elementary, middle and high schools impose dress codes, do they sometimes run afoul of First Amendment protections? Are schools with children, rather than colleges with older students, able to be more restrictive? Langvardt: The starting point in this area is Tinker v. Des Moines Independent School District. Some kids with proto-hippie parents wore black armbands to protest the war in Vietnam. Their high school suspended them, saying that the armbands would arouse controversy and ill will. The Supreme Court sided with the kids. It held that speech in school, whether symbolic or literal, is protected up to the point where it interferes substantially with the educational mission. And if you're looking for speech that interferes substantially with the educational mission, armbands won't cut it. Tinker is still good law, at least nominally, but I think that's largely because the Tinker test is formulated in such broad and bland terms that hardly anyone (and I'm excepting Justice Thomas here) would challenge it on its terms. Everyone can agree that schools should not put up with speech that "interferes substantially with the educational mission," but what does that phrase mean? Incitement to violence, threats, and primal scream therapy must all meet the test. But how about peaceable, non-threatening swear words, for instance? Surely a middle school should be able to detain a kid for swearing, and I suppose school administrators could claim with fingers crossed that swearing in school interferes substantially with the educational mission. But at an intuitive level, I imagine most people would sense a vague but legitimate basis for a school to prohibit swearing even if there was zero chance of disruption. It therefore comes as no surprise that in the years since Tinker, the court has expanded schools' authority over speech beyond the Tinker line. The court has approved penalties for lewd speech in Fraser v. Bethel School District and for advocacy of drugs in Morse v. Frederick. Neither of these cases is well-reasoned, which makes the new line hard to locate. It is nonetheless clear that schools have a lot of latitude to write dress codes. Rules against gang colors, swastikas, and Confederate flags can be justified under Tinker. Rules against profanity, sex-and-drugs stuff, and short skirts fall under Fraser and Morse. And there's not a whole lot left after that that's worth prohibiting. Nonetheless, at least one court has upheld a complete ban on logos or words on T-shirts. Thorpe: Often the school's objection to attire is based on an image or a logo. What is current law on an image as speech? Langvardt: Images are protected to the same extent as text and the spoken word, which, for better or for worse, doesn't mean much in the elementary, middle, and high school contexts. Thorpe: At all levels of education, student journalists are wearing the two hats that the name implies. Are their First Amendment protections different from those of other students? Langvardt: If anything -- and I'm sorry if I'm getting depressing here -- students have less protection when they write for the school paper than they normally would. The U.S. Supreme Court held in Hazlewood v. Kuhlmeier that a high school's student newspaper is essentially the school's speech, and that the school's interest in crafting its own message gives the school wide editorial discretion. Thorpe: The justice system, right up to the U.S. Supreme Court, has been very supportive of First Amendment expression for decades now. Is that tendency still true? Langvardt: Yes. School-speech doctrine is often in that sense an exception to the rule. Published: Tue, Jun 11, 2013

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