PATRICK J. DUGGAN, District Judge.
Bethel School District No. 403 v. Fraser, 478 U.S. 675, 696, 106 S.Ct. 3159, 3171, 92 L.Ed.2d 549 (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;
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
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, 167 L.Ed.2d 929 (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, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557, 127 S. Ct at 1966).
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, 167 L.Ed.2d 1081 (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
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:
(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, 30.)
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:
(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 Plaintiffs 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 professors."
(Id.) Plaintiff reported for the January 6 hearing; however, it was postponed until 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:
(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.
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, 98 L.Ed.2d 592 (1988), and by the Sixth
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, 21 L.Ed.2d 731 (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.)
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.
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:
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:
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 omitted).
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 speech. Id.
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
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:
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 civilized society:
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:
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. 2012); 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 elaborated:
Id.
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.
Hazelwood involved speech that the Court described as (1) "school-sponsored", (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.
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:
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 Batchelder wrote:
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).
In his third cause of action, labeled "Violation of Plaintiff Corlett's Right
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.
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 Leonardson 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 Leonardson, 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.2d at 195-96).
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.
Accordingly,
