When Is Quoting Van Halen a Crime?

This week Gary D. Russi, president of Oakland University in Michigan, rejected a request from the Foundation for Inividual Rights in Education (FIRE) to reconsider the three-semester suspension imposed on a student for commenting on the attractiveness of his creative writing instructor in a journal he maintained as part of the course. The "daybook" was supposed to be "a place for a writer to try out ideas and record impressions and observations," including "freewriting/brainstorming" and "creative entries." The student, Joseph Corlett, says his instructor, Pamela Mitzelfeld, repeatedly assured him that no topic was off limits, which turned out to be not exactly true. In an entry titled "Hot for Teacher," Corlett reflected on the challenge of paying attention in classes taught by attractive instructors:

Then there's Mrs. Mitzelfeld, English 380. She walks in and I say to myself "Drop [the class], 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 [schedule] thing. I'll search for something unattractive about her. No luck yet. Shit. 

Two pages further in the journal, Corlett imagined a (fictional) warning from Mitzelfeld:

Dear Joseph:

While your writing is fair, it is completely inappropriate. I have broken your rule and torn out the offending pages. If this continues, I am obligated to report you to the Dean. Otherwise I shall consider the matter closed.

Sincerely,

Mrs. Mitzelfeld

Corlett nevertheless continued the "Hot for Teacher" theme. In an entry dated September 23, 2011, he likened Mitzelfeld to Ginger on Gilligan's Island while comparing another instructor to Maryanne. According to Corlett and FIRE, these two entries are the sole basis for Mitzelfeld's claim that he had sexually harassed her, which she made after collecting his journal at the beginning of November. In a November 29, 2011, memo to various colleagues, Mitzelfeld called Corlett a "Dangerous Student," citing letters he had written to the school newspaper "defending the right to carry concealed weapons on campus." Because of his Second Amendment advocacy, she said, "I cannot feel safe knowing that he might have a weapon on him at any time." She complained that Corlett's presence had created "an unacceptable and dangerous work environment" and concluded, "Either Mr. Corlett leaves campus or I do." As a result of Mitzelfeld's complaints, Corlett was banned from campus, suspended for three semesters, and ordered to undergo "sensitivity" training.

FIRE argues that Oakland University, as a government-run school, is bound to respect Corlett's First Amendment rights, which include "germane, class-related expression" such as the journal entries that offended Mitzelfeld. Adam Kissel, FIRE's vice president of programs, notes that Corlett's conduct falls far short of sexual harassment as it has been defined by the federal courts. Oakland's response, as expressed by Russi, General Counsel Boyd C. Farnam, and  Vice President for Student Affairs & Enrollment Management Mary Beth Snyder, is that Corlett cannot use a First Amendment defense in an internal disciplinary proceeding and that the university's definition of "unlawful conduct" (the official charge against Corlett) need not conform to the case law dealing with sexual harassment. As Snyder put it, Corlett seeks to use "technical legal definitions and standards in defense to charges that are neither technical nor legal in nature, but rather, would be considered intimidating, harassing, threatening or assaultive behavior in the context of the University's academic, educational environment." In essence, says FIRE President Greg Lukianoff, "Oakland University made up its own definition of the 'law' in order to punish a student for his creative writing."

If you reject FIRE's premise that a state-sponsored university should face different legal constrants in policing student speech than a private university would, you may agree with Oakland's adminstrators that the First Amendment is irrelevant in this situation. But there is still the question of whether an institution supposedly devoted to free inquiry should be punishing students for writing things that offend their teachers. It's pretty clear that Corlett's journal entries did not amount to sexual harassment. Are they nevertheless a kind of disruptive speech that universities should punish? If so, was Corlett's penalty proportionate? Is your answer affected by the knowledge that Corlett is a middle-aged man who has been married for three decades? And what, if anything, do his views on gun control have to do with it?

FIRE's latest update, which includes links to relevant documents, is here.

Addendum: As I noted, the "warning" from Mitzelfeld was fictional, written by Corlett himself before she had seen the journal, so it is not the case that he persisted after being asked to stop.