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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION JOSEPH M. CORLETT, an individual, Plaintiff, v. OAKLAND UNIVERSITY BOARD OF TRUSTEES, in its official capacity; GARY RUSSI, individually and in his official capacity as the President of Oakland University; and MARY BETH SNYDER, individually and in her official capacity as Vice President for Student Affairs and Enrollment Management of Oakland University. Defendants. | | | | | | | | | | | | | | | | | Case No.: 2:13-cv-11145 Hon. Patrick J. Duggan Mag. Paul J. Komives PLAINTIFFS RESPONSE TO DEFENDANTS MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6)

Plaintiff Joseph M. Corlett (Corlett), by and through counsel, now comes and respectfully offers his response in opposition to the Defendants motion to dismiss. Plaintiff Corlett requests that the Court deny Defendants motion to dismiss. The reasons as to why the Court should deny Defendants motion are contained in the attached Supporting Memorandum. Respectfully submitted this 31st day of May, 2013, s/ Alari K. Adams Alari K. Adams, Esq. ASquared Legal Group, PLC 200 Walker Street Detroit, Michigan 48226 (P) 810/223-1354 (E) aadams@asquaredlegal.com Michigan Bar No. #P73324 www.asquaredlegal.com Lead Trial Counsel for Plaintiff

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SUPPORTING MEMORANDUM I. TABLE OF CONTENTS II. TABLE OF AUTHORITIES ................................................................................................ iii III. STATEMENT OF FACTS ................................................................................................... 1 A. The Facts of the Complaint and Related Documents .................................................... 1 B. Review under Fed. R. Civ. P. 12(b)(6)............................................................................. 1 IV. ARGUMENT ......................................................................................................................... 2 A. Corletts First Amendment Retaliation Claim (Count I) Must Survive Dismissal Because the Complaint Properly Pleads Each Element of Such a Claim. ................... 2 B. Plaintiff Sufficiently Pleaded Each Element of his Equal Protection Claim (Count II), Therefore, the Claim Must Survive Dismissal. ......................................... 10 C. Corletts Claim that the Defendants Violated His Rights to Freedom of Expression and Due Process of Law Were Properly Pleaded and Must Not Be Dismissed. ...... 12 D. The Motion to Dismiss Plaintiffs Viewpoint Discrimination Claim 14 (Count IV) Must Be Denied. .............................................................................................................. 14 E. Corletts Overbreadth Claim (Count V) was Properly Pleaded and Must Not Be Dismissed. ........................................................................................................................ 14 F. Defendants Are Not Entitled to Qualified Immunity .................................................. 17 V. CONCLUSION...................................................................................................................... 19

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II. TABLE OF AUTHORITIES Cases Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................... 1 Bell Atlantic Corp. v. Twombly, 550 U.S. 555 (2007) .................................................................... 1 Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998); .......................................................................... 2, 18 Board of Curators of University of Missouri v. Horowitz, 435 U.S. 78 (1978) ............................. 8 Brandenburg v. Ohio, 395 U.S. 444 (1969) .............................................................................. 6, 18 Broaderick v. Oklahoma, 413 U.S. 601 (1973) ............................................................................ 16 Chaplinsky v. New Hampshire, 315 U. S. 568 (1942) .............................................................. 6, 19 Cochran v. Gilliam, 656 F.3d 300 (6th Cir. 2011) ....................................................................... 18 Cohen v. California, 403 U.S. 15 (1971) ...................................................................................... 14 Columbia Natural Resources v. Tatum, 58 F.3d 1101 (6th Cir. 1995) ........................................ 12 Connally v. General Constr. Co., 269 U.S. 385 (1925) ................................................................ 12 Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995) .................... 12, 13, 15, 16 De Jonge v. Oregon, 299 U.S. 353 (1937).................................................................................... 14 Davis v. Monroe County Board of Education, 526 U.S. 629 (1999)...10, 17 DejaVu of Nashville v. Metro. Govt of Nashville, 274 F.3d 377 (6th Cir. 2001) ................... 15, 16 Doe v. Univ. of Mich., 721 F. Supp. 852 (E.D. Mich. 1989) ............................................ 10, 15, 16 Dubay v. Wells, 506 F.3d 422 (6th Cir. 2007) ................................................................................. 1 Goss v. Lopez, 419 U.S. 565 (1975) ............................................................................................... 5 Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) ................................................. 7, 8 Keyishian v. Board of Regents of the University of the State of New York, 385 U.S. 589 (1967) .............................................................................................................................. 7, 18, 19 Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389 (6th Cir. 1998) ........................................................ 2 Miller v. California, 413 U.S. 15 (1973) .................................................................................. 6, 18 NAACP v. Button, 371 U.S. 415 (1963) .................................................................................. 14, 16 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ....................................................... 6, 14, 18 New York v. Ferber, 458 U.S. 747 (1982) ................................................................................ 6, 19 Penny v. United Parcel Serv., 128 F.3d 408 (6th Cir. 1997) .......................................................... 2 Police Dept of Chicago v. Mosley, 408 U.S. 92 (1972) .............................................................. 14 Regents of University of Michigan v. Ewing, 474 U.S. 214 (1985) ................................................ 8 Saucier v. Katz, 533 U.S. 194 (2001)..18, 19 Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250 (6th Cir. 2006).................................... 11 Shelton v. Tucker, 364 U.S. 479 (1960) ....................................................................................... 18 Street v. New York, 394 U.S. 576 (1969) ...................................................................................... 14 Sweezy v. New Hampshire, 354 U.S. 234 (1957)............................................................................ 6 Terminiello v. Chicago, 337 U.S. 1 (1949) ................................................................................... 14 Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999) ..................................................................... 2 Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969) .................... 9, 13, 15, 18 Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976) .................................................................................................................................... 6, 18 Virginia v. Black, 528 U.S. 343 (2003 )...4, 5, 6, 17, 18 Ward v. Polite, 667 F.3d 727 (6th Cir. 2012) ............................................................................. 6, 9 Weiner v. Klais & Co., 108 F.3d 86 (6th Cir. Ohio 1997 ............................................................... 7

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Wood v. Georgia, 370 U.S. 375 (1962) ........................................................................................ 14 Yellow Freight Sys., Inc. v. Reich, 27 F.3d 1133 (6th Cir. 1994) ................................................... 2 Statutes U.S. Const. Amend. 1 ..................................................................................................................... 8 Rules Fed. R. Civ. P. 12(b)(6)................................................................................................................... 4 Fed. R. Civ. P. 12(d) ....................................................................................................................... 9 Other Authorities IRS Publication 15-A (2013) ......................................................................................................... 12

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III. STATEMENT OF FACTS A. The Facts of the Complaint and Related Documents

Throughout the Defendants brief in support of their motion, Plaintiff Corlett is portrayed as an insensitive, misogynistic construction worker in a troubled marriage who sexually harassed his Oakland University (University) professor without privilege to do so by writing sexually vulgar materials that lacked any literary value fit for an institution of higher learning. Plaintiff Corlett takes great offense to the characterization of the facts as presented by Defendants in their brief, and Plaintiff Corlett respectfully submits that Defendants are following the advice of Marcus Tullius Cicero: When you have no basis for an argument, abuse the plaintiff. Plaintiff Corlett resents his character being impugned as much as he does his constitutional rights being infringed upon. Plaintiff Corlett respectfully directs the Court to defer to the Complaint to understand the fact pattern of the case at bar. B. Review under Fed. R. Civ. P. 12(b)(6)

When the Court scrutinizes the Complaint under Fed. R. Civ. P. 12(b)(6), this Court is required to accept all well-pleaded factual allegations of the complaint as true and construe the complaint in the light most favorable to the plaintiff. Dubay v. Wells, 506 F.3d 422, 426 (6th Cir. 2007). In order for Plaintiff Corletts claims to survive Defendants Motion to Dismiss, he need only show that his Complaint contains sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 555, 570 (2007)). Defendants Motion to

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Dismiss must be denied because each of the claims in Corletts Complaint easily pass this low threshold.1 IV. ARGUMENT A. Corletts First Amendment Retaliation Claim (Count I) Must Survive Dismissal Because the Complaint Properly Pleads Each Element of Such a Claim.

It is black-letter constitutional law that in order to properly state a claim for retaliation under the First Amendment, a Plaintiff must merely plead that: (1) [he] engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two -- that is, the adverse action was motivated at least in part by the plaintiff's protected conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (prisoner retaliation claim) (citing Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998); Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 406 (6th Cir. 1998); Penny v. United Parcel Serv., 128 F.3d 408, 417 (6th Cir. 1997); Yellow Freight Sys., Inc. v. Reich, 27 F.3d 1133, 1138 (6th Cir. 1994). Count I in Corletts Complaint meets all of these elements. In paragraphs 12 through 602, Corlett sets forth the factual basis of his claims. In his Complaint, he states: 29. On or about September 10, 2011, Plaintiff Corlett composed a Daybook entry entitled Hot for Teacher, which was named after a 1984 song performed
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. Despite the premature nature of these arguments prior to the commencement and completion of discovery, and the fact that the Court cannot sustain any of Defendants summary judgment claims at this stage, Plaintiff has succinctly addressed each of those arguments and why they are destined for failure when they are properly before the Court. 2 Each count in the Complaint incorporates each of the preceding paragraphs, as per paragraphs 74, 82, 90, 102, and 109. Plaintiff Corlett repeats and realleges each of the allegations contained in the foregoing paragraphs of this Complaint.
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by the hard rock band Van Halen. This entry was a whimsical exaggeration of his attraction towards Mitzelfeld. 30. Plaintiff Corlett reasonably continued to rely on Mitzelfelds statement that any subject matter was permitted, and on or about September 23, 2011, he continued his Hot for Teacher theme in another Daybook entry. (EXHIBIT G) 31. On or about November 1, 2011, and after approximately three-fourths of English 380 had been completed, Mitzelfeld collected Plaintiff Corletts Daybook, for the first time, for her review. 31. On or about November 1, 2011, and after approximately three-fourths of English 380 had been completed, Mitzelfeld collected Plaintiff Corletts Daybook, for the first time, for her review. 32. On or about November 2, 2011 Plaintiff Corlett received a phone call from Dean Glenn McIntosh (McIntosh) requesting that Plaintiff Corlett come to his office later that day for a meeting. 34. At this meeting, Plaintiff Corlett first became aware of Mitzelfelds discontent with some of his Daybook entries. Also, McIntosh instructed Plaintiff Corlett to not attend English 380 for the remainder of the week. 35. Plaintiff Corlett abided by McIntoshs request and did not attend English 380 for the rest of the week, which was only one class. 36. Having not received any further instruction from McIntosh, Mitzelfeld, or any other OU administrator, Plaintiff Corlett reasonably inferred that any issue(s) with his Daybook entries had been resolved and that he was permitted to resume attending English 380 in the upcoming week. 37. Therefore, on or about November 8, 2011, Plaintiff Corlett calmly settled into the English 380 classroom. But prior to class commencing, in front of his classmates, Mitzelfeld had Plaintiff Corlett escorted out of her classroom by the OU Police Department. 38. The OU Police Department escorted Plaintiff Corlett to McIntoshs office. 39. McIntosh was apologetic to Plaintiff Corlett for not apprising him that he was no longer permitted to physically attend English 380 for the remainder of the semester.

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46. On or about January 3, 2012, Karen Lloyd (Lloyd) informed Plaintiff Corlett via email that his University Conduct Committee (UCC) hearing was going to be held on January 6, 2012 for his alleged violation of University Ordinances and Regulation #6.02 - Unlawful Individual Activities (Regulation 6.02 or Unlawful Activities Policy). 48. Per the University Student Handbook, the University Conduct Committee hearing is reserved for alleged violation(s) of a non-academic nature. The purpose of the hearing is to make a decision regarding responsibility or innocence with respect to the alleged violation(s) and to determine appropriate sanction(s). 51. On or about January 19, 2012, Plaintiff Corlett attended his UCC hearing. The UCC hearing panel was comprised of five University faculty representatives and one University student representative. 52. After several hours, the UCC hearing concluded without Plaintiff Corlett being permitted to present any relevant evidence on his behalf and as stated by Snyder, the UCC board neglected to properly record by audio device the proceedings. (EXHIBIT K) 54. Ultimately, Mr. Plaintiff Corletts completion of a classroom assignment was considered to be unlawful activity by the UCC board, and he was found guilty of violating University Regulation #6.02 Unlawful Individual Activities. 55. The UCC board determined that Plaintiff Corletts Daybook entries rose to a level of intimida(tion) towards a person engaged in lawful activities on campus. 56. The United States Supreme Court defined unprotected intimidation as a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. Virginia v. Black, 538 U.S. 343, 360 (2003). 57. A reasonable interpretation of the Daybook entries composed by Plaintiff Corlett does not satisfy the Supreme Courts controlling, narrow standard for intimidation cited in Paragraph 56.

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58. Ultimately, the UCC board suspended Plaintiff Corlett, which prevented him from enrolling in any OU classes for three semesters (Summer 2012, Fall 2012, and Winter 2013), deemed him persona non grata on its campus during the suspension, and required him to undergo counseling for sensitivity issues prior to his return to University. (EXHIBIT L) Corlett has unambiguously and sufficiently pleaded that adverse actions (denigrating his personal and professional abilities in reviewing his Daybook, requiring him to complete sensitivity counseling, refusing to award him his credit for English 380, and delaying his graduation from University, prohibition from attending a class and suspending him) were taken against him by Defendants on account of his journal entries. See Goss v. Lopez, 419 U.S. 565, 574 (1975) (holding that a student faced with adverse action is entitled to notice and due process); See also paragraphs 32, 34, 39, 54, 55, and 58. Accordingly, he has easily satisfied the second and third elements of a First Amendment retaliation claim. The only question, therefore, before this Court is whether he set forth a claim that his punished speech was protected under the First Amendment. Corletts Complaint cannot logically be read without understanding that he is claiming that the journal entries that he wrote which were the cause of his suspension from the campus constitute protected speech, which Defendants concede in their motion. Def. Mot. at 2. Setting aside the context of his entire Complaint and Count Is heading: First Amendment Retaliation, in paragraphs 55-57, Corlett lays out his claim that his journal entries were protected: 55. The UCC board determined that Plaintiff Corletts Daybook entries rose to a level of intimida(tion) towards a person engaged in lawful activities on campus. 56. The United States Supreme Court defined unprotected intimidation as a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. Virginia v. Black, 538 U.S. 343, 360 (2003).

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57. A reasonable interpretation of the Daybook entries composed by Plaintiff Corlett does not satisfy the Supreme Courts controlling, narrow standard for intimidation cited in Paragraph 56. But despite Defendants claims to the contrary, Corlett has done even more than simply meet the pleading standards for his First Amendment Retaliation claim. His journal entries are, as a matter of law, protected speech under the First Amendment to the United States Constitution. The First Amendment guarantees the sacrosanct right of freedom of speech, which is fundamental to life in a free American society: Congress shall make no law . . . abridging the freedom of speech. U.S. Const. Amend. 1. The right to free speech has been incorporated against the states by way of the Fourteenth Amendment to the United States Constitution. Gitlow v. New York, 268 U.S. 652 (1925); Ward v. Polite, 667 F.3d 727 (6th Cir. 2012). The types of speech that the First Amendment does not protect are few, narrow, and well-settled: obscenity (Miller v. California, 413 U.S. 15 (1973)); defamation (New York Times Co. v. Sullivan, 376 U.S. 254 (1964)); commercial fraud (Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976)); incitement (Brandenburg v. Ohio, 395 U.S. 444 (1969)); true threats of violence (Virginia v. Black, 528 U.S. 343 (2003)); fighting words (Chaplinsky v. New Hampshire, 315 U. S. 568, 571572 (1942); and child pornography (New York v. Ferber, 458 U.S. 747 (1982)). Moreover, it is well-settled that the First Amendment applies at public universities like Oakland University. Commenting on a professors appearance in a creative writing journal does not fall into any of the unprotected categories of speech. See Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and

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die.); Keyishian v. Board of Regents of the University of the State of New York, 385 U.S. 589, 603 (1967) (the First Amendment does not tolerate laws that cast a pall of orthodoxy over the classroom.). Corlett has, at minimum, stated a claim for violation of his First Amendment rights upon which relief can be granted. Nonetheless, Defendants advance two claims to the contrary that Corletts speech is somehow unprotected.3 First, they argue that his speech was unprotected because it was curricular speech. Then they argue that Corletts speech was unprotected because it constituted sexual harassment. Neither argument holds water. Defendants first argue that Corletts punishment was warranted under the curricular speech doctrine addressed in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) (holding that a high school principal could prohibit the publication of controversial articles in the student paper).4 The curricular speech doctrine states that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns. Id. at 273. In Hazelwood, the Court recognized lesser First Amendment protection for speech that isor could reasonably be understood asan official school message, bearing its seal of approval. These concerns do not apply here. Defendants do not allege that Corlett wanted to publish his journal or in any way share his raw impressions with anyone but Professor Mitzelfeld; he certainly did not want the school to endorse it. Nor does the record suggest that

Again, both of these arguments are premature summary judgment arguments that are not properly before this Court as Defendants maintains this a Motion to Dismiss. Compare Fed. R. Civ. P. 12(d) with Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir. Ohio 1997). 4 Hazelwood arguably does not govern this case because it dealt with high school speech which can be circumscribed in ways not permissible in the university setting. For the purposes of the motion to dismiss, the implications of this distinction need not be resolved. See Hazelwood, 484 U.S. at 273 n.7.

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any other students were aware of his work, much less that Corlett wanted his work to be included in their required readings. Therefore, to classify the case at issue as a Hazelwood case is to expand Hazelwoods reach beyond any logical stopping point. It turns Hazelwood from a case about curricular speech into a case about speech referring to the curriculum. Plus, there is one additional way the Court can see that the curricular speech doctrine does not foreclose Corletts claims: Defendants did not impose an academic punishment like a lower grade on Corletts work, they took broader disciplinary action, none of which is justified by Hazelwood or the curricular speech doctrine. For that reason, Defendants reliance on Regents of University of Michigan v. Ewing, 474 U.S. 214 (1985) is also misplaced. Ewing was expelled for poor academic performance. The Supreme Court has long distinguished between a universitys near complete autonomy in assessing the quality of a students work and its ability to punish a student for behavior. Board of Curators of University of Missouri v. Horowitz, 435 U.S. 78, 87 (1978) (explaining that there are distinct differences between suspending a student for poor academic performance as opposed to for misbehavior). But this is not a case about a bad grade. This case concerns the Defendants decision to suspend Corlett for three semesters and impose other penalties for his assignments in a creative writing class. The Defendants contorted reading of Hazelwood does not justify dismissal of Corletts case. Nor is there any other plausible basis upon which Defendants could lawfully punish Corletts speech. Even in a K-12 educational environment where youth have fewer First Amendment rights, a students speech can only be lawfully infringed upon if it materially and substantially [interferes] with the requirements of appropriate discipline in the operation of the school and collides with the rights of others. Tinker v. Des Moines Independent School District, 393 U.S. 503, 513 (1969) (holding that student speech must cause a substantial disruption before

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it can be suppressed). So while Defendants are correct that some classroom speech is unprotected, this is only true when the speech in question meets Tinkers threshold requirements. Corletts journal entries did not materially and substantially interfere with the functioning of the University. Professor Mitzelfelds academic freedom to decide what to teach does not limit Corletts freedom to respond to her assignments in a germane fashion. Ward v. Polite. 667 F.3d 727 (6th Cir. 2012) Professor Mitzelfeld may have disrupted the functioning of the University when she had campus police escort Corlett from her classroom, but Defendants cannot punish Corlett based on a disruption that she created. Cmpl. 37. Therefore, Tinker also fails to provide a basis upon which to dismiss Corletts claim. The Defendants also erroneously rely on the dicta in Ward v. Polite. 667 F.3d 727 (6th Cir. 2012) (holding that the Eastern Michigan University may have violated the Constitution by expelling a counseling student based on her religious beliefs about homosexual conduct). Regardless, Ward does not support dismissal of these claims either. Defendants ostensibly omitted the Sixth Circuits determination that restrictions on student speech, even if allowed in the university setting, must be tailored to the level of maturity of the student. Id. at 734. Therefore under Ward, Corlett has a valid legal claim that, as an adult participating in a university writing class, the First Amendment protected his journal writings about his professor. Furthermore, Ward prohibits the singling out of one student for discipline based on hostility to her speech . . . . Id. at 733. Corlett is entitled to develop the record to prove that he alone was punished for his journal entries. Defendants final argument against this claim is that Corletts speech was unprotected because the journal entries constituted sexual harassment. This argument is just as misguided as Defendants others. Simply put: This is not an employment law case. Nonetheless, the

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Defendants disingenuously attempt to classify Corlett as a non-employee in the hopes that this Court will mistakenly apply the inapposite standard for workplace harassment to this case. Corlett is obviously not an employee. See IRS Publication 15-A (2013) (defining a statutory nonemployee as direct sellers, licensed real estate agents, and certain companion sitters). Defendants classification of Corlett as a non-employee is baseless and inappropriate. Workplace harassment standards cited by the Defendants do not apply. The applicable standard for harassment in an educational setting demonstrates that Defendant acted improperlynot that they have a basis to deny Corlett his day in court. In Davis v. Monroe County Board of Education, the Supreme Court defined peer-on-peer sexual harassment as behavior that is so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit. 526 U.S. 629, 633 (1999). One adult writing in a journal that another adult is stacked comes nowhere near that standard. Applying a workplace standard for allegations of sexual harassment in the classroom, as Defendants have done, is not only contrary to established law, but it would undermine the fundamental purpose of the university. Doe v. Univ. of Mich., 721 F. Supp. 852, 863 (E.D. Mich. 1989) (noting the free and unfettered interplay of competing views is essential to the institution's educational mission.). Any embarrassment Professor Mitzelfeld may have felt when she read Corlett's entries pertaining specifically to her does not rise to the Davis threshold. Corletts entries fall well short of the standard of actionable harassment set forth in Davis. His journal entries are, therefore, protected by the First Amendment. The Motion to Dismiss must be denied as to Count I. B. Plaintiff Sufficiently Pleaded Each Element of his Equal Protection Claim (Count II), Therefore, the Claim Must Survive Dismissal.

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In the Sixth Circuit, "[t]he threshold element of an equal protection claim is disparate treatment; once disparate treatment is shown, the equal protection analysis to be applied is determined by the classification used by government decision-makers." Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006). In Scarbrough, the Sixth Circuit explained: Fundamentally, the Clause protects against invidious discrimination among similarly-situated individuals or implicating fundamental rights. The threshold element of an equal protection claim is disparate treatment; once disparate treatment is shown, the equal protection analysis to be applied is determined by the classification used by government decision-makers. Id. In his Complaint, Plaintiff clearly pleaded that he was singled out, amongst all of his similarly-situated peers enrolled in Professor Mitzelfelds English 380 class for punishment on the basis of his exercise of a fundamental right: free speech. In paragraphs 85 and 86 of his Complaint he identifies the similarly situated peers: 85. By suspending Plaintiff Corlett from the University for alleged intimidating behavior, denigrating his personal and professional abilities in reviewing his Daybook, requiring him to complete sensitivity counseling, refusing to award him his credit for English 380, and delaying his graduation from University, among other adverse actions, Defendants have treated Plaintiff Corlett differently than similarly situated persons based on his exercise of the fundamental right to free speech. 86. Other students who submitted English 380 assignments and Daybook entries were not singled out for punishment as Plaintiff Corlett was for his Daybook entries. Defendants Motion to Dismiss ignores that Plaintiffs Complaint identifies similarlysituated students against whom his treatment could be compared. In fact, Defendants motion makes barely a mention of Plaintiffs equal protection claim, merely stating that: For all these reasons, the curricular speech doctrine makes quick work of Corletts Complaint. It summarily disposes of Counts I, II, and IV, all of which are based on the erroneous premise that Corlett had a First Amendment right to engage in the

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speech at issue: the well-settled law just discussed shows that he did not; these claims therefore fail. Defendants Motion to Dismiss, p. 14. Of course for all of the reasons, as explained herein, Corletts journal entries were as a matter of law protected expressions. Since it cannot be said, as a matter of law that Corletts speech was unprotected, his equal protection claim cannot be dismissed. C. Corletts Claim that the Defendants Violated His Rights to Freedom of Expression and Due Process of Law Were Properly Pleaded and Must Not Be Dismissed.

As acknowledged by the Sixth Circuit in Columbia Natural Resources v. Tatum, 58 F.3d 1101, 1104 (6th Cir. 1995), [t]he due process clause of the Constitution provides the foundation for the void for vagueness doctrine. A statute, or in this case, a public university policy that either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. Id. quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed. 322, 46 S. Ct. 126 (1925). In Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995), the Sixth Circuit struck down Central Michigan Universitys similarly vague harassment policy. The Court held that the Universitys policies are vague because they den[y] fair notice [to students] of the standard of conduct to which [they are] held accountable, and constitute an unrestricted delegation of power that leaves the definition of [their] terms to University officials, thereby invit[ing] arbitrary, discriminatory, and overzealous enforcement. Id. at 1183-84. Plaintiffs Complaint sufficiently pleaded free speech and due process violations. In paragraph 91, it identifies Defendants Unlawful Activities Policy as the vague policy in question. In paragraphs 94 through 98, the Complaint sets forth the ways the definitions of

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conduct prohibited in the policy violate free speech rights and conflict with legal authorities. Then in paragraph 93, Corlett specifically asserts: 93. The vagueness and lack of published guidelines in Defendants Unlawful Activities Policy permit Defendants to enforce their policy in a discriminatory and arbitrary manner against protected expression and conduct. The vagueness of Defendants policy violates due process rights protected under the Fourteenth Amendment to the United States Constitution. These pleadings are plainly sufficient to sustain Plaintiffs freedom of speech and due process claims. Despite this, Defendants make two arguments about the legal merits of Plaintiffs freedom of speech claims. First, they absurdly claim that enforcing the vague policy against Corlett was okay because his speech was not protected anyway. There is no polite way to say this: Defendants argument is absurd. To accept that argument, the Court must accept that no classroom speech is ever protected, and universities need not clearly define any guidelines for protected student expression. Accepting that argument would fly in the face of Tinker and Dambrot, and every other court that has ever evaluated a harassment policy for vagueness. Moreover, as argued infra., Defendants curricular speech arguments are as misplaced here as it was above. In Dambrot, the Sixth Circuit found the terms negative and offensive in Central Michigan Universitys discriminatory harassment policy vague because one must make a subjective reference to determine what conduct will be sanctioned. 55 F.3d at 1184. In Corletts case, Mitzelfeld exhibited evidence of the policies vagueness when she and the Defendants arbitrarily decided to punish Plaintiff for written content that she had previously in fact encouraged. The fact that the Universitys policies provide administrators with considerable discretion to subjectively determine in individual cases whether particular speech is exemplary or punishable demonstrates the policies constitutional defect of vagueness. Under

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this directly applicable legal precedent, it is clear that Defendants policy cannot pass constitutional muster. This count must not be dismissed. D. The Motion to Dismiss Plaintiffs Viewpoint Discrimination Claim (Count IV) Must Be Denied.

Although it should go without saying, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Police Dept of Chicago v. Mosley, 408 U.S. 92, 95 (1972) (Cohen v. California, 403 U.S. 15, 24 (1971)); Street v. New York, 394 U.S. 576 (1969); New York Times Co. v. Sullivan, 376 U.S. 254, 269-270 (1964), and cases cited; NAACP v. Button, 371 U.S. 415, 445 (1963); Wood v. Georgia, 370 U.S. 375, 388-389 (1962); Terminiello v. Chicago, 337 U.S. 1, 4 (1949); De Jonge v. Oregon, 299 U.S. 353, 365 (1937). In Corletts complaint, he asserts: 105. Defendants Unlawful Activities Policy explicitly prohibits behavior that intimidate(s), harass(es), threaten(s), or assault(s) any person engaged in lawful activities on campus. 106. Without limiting the aforementioned terms to their legal definitions, as cited in Paragraphs 94-97 Defendants have explicitly and implicitly discriminated on the basis of subjective viewpoint and deprived Plaintiff Corlett of his clearly established rights to freedom of speech and expression secured by the First and Fourteenth Amendments to the Constitution of the United States. These allegations sufficiently state a claim for viewpoint-based discrimination. Plaintiff was punished for expressing views in his Daybook that he was told would be unrestricted and not prohibited. Cmpl. 27. These allegations, which at this stage must be taken as true, must survive dismissal. E. Corletts Overbreadth Claim (Count V) was Properly Pleaded and Must Not Be Dismissed.

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A law regulating speech will be struck down as overbroad if it reaches a substantial number of impermissible applications relative to the laws legitimate sweep. DejaVu of

Nashville v. Metro. Govt of Nashville, 274 F.3d 377, 387 (6th Cir. 2001) (citation omitted). In Corletts Complaint, he pleaded that Oakland Universitys Unlawful Activities Policy suffers from this precise constitutional defect. Cmpl. 110. In paragraphs 112 and 113 he alleges that the policys sweep reaches well beyond what is permissible under the First Amendment: 112. Defendants policy explicitly prohibits, among other things, behavior that intimidate(s), harass(es), threaten(s), or assault(s) any person engaged in lawful activities on campus. 113. Without limiting the aforementioned terms to their legal definitions, cited in Paragraphs 94-97, the Unlawful Activities Policy is overbroad because it prohibits a wide range of protected speech and expression. By maintaining this policy, and enforcing it against Plaintiff Corlett, Defendants have deprived him of his clearly established rights to freedom of speech and expression secured by the First and Fourteenth Amendments to the Constitution of the United States. These assertions clearly satisfy the pleading standards necessary to survive Defendants Motion to Dismiss. There is no doubt that an overbroad and vague university speech code can be struck down. Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995); Doe v. Univ. of Mich., 721 F. Supp. 852 (E.D. Mich. 1989) Defendants once again rely erroneously on the premise that in the classroom there are no constitutional restrictions whatsoever on what speech can be restricted, how it can be punished, or how clearly the institution must warn students about what is and is not permitted. See, e.g., Tinker v. Des Moines Independent School District, 393 U.S. 503, 506 (1969) (stating that it has been the unmistakable holding of this Court for almost 50 years that students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate); In Doe, the university enforced its policy prohibiting discriminatory harassment based on sex and sexual orientation against a student who openly stated [in class] his belief that homosexuality was a disease and had been counseling several of his gay

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patients to change their sexual orientation. Doe, 721 F. Supp. at 861 (holding that applying a discriminatory harassment policy to comments made in a classroom setting proved the policys impermissible sweep). Laws regulating First Amendment activities must be narrowly drawn to address only the precise evil in question. Broaderick v. Oklahoma, 413 U.S. 601, 611 (1973). This is due to the fact that First Amendment freedoms are delicate and vulnerable and need breathing space to survive. NAACP v. Button, 371 U.S. 415, 433 (1963). As a result, a law regulating speech will be struck down as overbroad if it reaches a substantial number of impermissible applications relative to the laws legitimate sweep. DejaVu of Nashville v. Metro. Govt of Nashville, 274 F.3d 377, 387 (6th Cir. 2001) (citation omitted). Therefore, this Court must, when the issue is properly before it, determine whether Oakland Universitys policies present a realistic danger the University could compromise the protection afforded by the First Amendment. Dambrot, 55 F.3d at 1183. The primary policy that Defendants relied upon to suspend Corlett was University Ordinances and Regulation #6.02 - Unlawful Individual Activities (Regulation 6.02 or Unlawful Activities Policy). That policy reads: 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 campus. (Emphasis added.) Specifically, Corlett was found to have intimidate[d] Professor Mitzelfeld via his journal entries. As a result, Corletts journal entriesthough completed as assigned and

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consisting entirely of constitutionally protected expressionwere deemed unlawful and in violation of this policy by the Defendants. Cmpl. 54-55. Defendants state in their brief that Corlett was also in violation of the Universitys Discriminatory Harassment policy5. That policy reads: [A]ny physical or verbal behavior, including but not limited to sexual advances or requests for sexual favors, and any written behavior ... that stigmatizes or victimizes an individual on the basis of race, sex, sexual orientation, age, height, weight, handicap, color, religion, creed, national origin or ancestry, marital status, familial status, veteran status, or other characteristics not permitted by law. (Emphasis added.) By Defendants own admission, therefore, Corletts violation of this policy was a direct result of his free expression in the assigned journal writings. Without a doubt, the Unlawful Individual Activities and Discriminatory Harassment policies cited by Defendants cover vast amounts of constitutionally protected expression, which Corlett will demonstrate at trial. Suffice it to say here that intimidation and harassment have precise legal definitions. Virginia v. Black, 538 U.S. 343, 360 (2003); Davis v. Monroe County Bd. Of Educ., 526 U.S. 629, 651 (1999) (stating that harassment in the educational setting is met only by a narrow range of conduct that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims educational experience, that the victimstudents are effectively denied equal access to an institutions resources and opportunities.). Adherence to these narrow standards is necessary in order to protect students free speech rights. Defendants did not do so, and Corlett has stated a valid claim that Oaklands failure violated his constitutional rights. F. Defendants Are Not Entitled to Qualified Immunity

At the January 19, 2012 hearing before the University Conduct Committee (UCC), Ms. Joi Cunnigham, Esq., Oakland Universitys Director of Diversity and Compliance, apprised the UCC that Corletts writings were not severe enough to violate Defendants Discriminatory Harassment policy.

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This Court should reject the Defendants request for qualified immunity. Qualified immunity protects state actors, including public university administrators, if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Cochran v. Gilliam, 656 F.3d 300, 306 (6th Cir. 2011 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Sixth Circuit conducts a two-part analysis to determine if a state actor is eligible for qualified immunity: (1) did the defendant violate the plaintiffs constitutional rights and (2) was the right was clearly established at the time the Defendants infringed upon it. Solomon v. Auburn Hills Police Dept, 389 F.3d 167, 172 (6th Cir. 2004) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). For a century, the Supreme Court has emphasized the importance of freedom of speech in the university setting. See, e.g., Tinker v. Des Moines Independent School District, 393 U.S. 503, 506 (1969) (stating that it has been the unmistakable holding of this Court for almost 50 years that students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.); Keyishian 385 U.S. at 603 (The essentiality of freedom in the community of American universities is almost self-evident.); Shelton v. Tucker, 364 U.S. 479, 487 (1960) (Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us.). Corlett wrote impressions in a journal that his professor found offensive, and he was removed from the university. This is exactly what the First Amendment prohibits government actors from doing: punishing a citizen for his speech. The content of Corletts journal does not remotely implicate the types of speech that the Supreme Court has determined do not fall under the First Amendment.6 Even Defendants do not contend that his entries were

The types of speech that the First Amendment does not protect are few, narrow, and well-settled: obscenity (Miller v. California, 413 U.S. 15 (1973)); defamation (New York Times Co. v. Sullivan, 376 U.S. 254 (1964)); commercial fraud (Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976)); incitement (Brandenburg v. Ohio, 395 U.S. 444 (1969)); true threats of violence (Virginia v. Black, 528 U.S. 343 (2003)));

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true threats, designed to incite violence or defamatory, or obscene. Viewed in the light most favorable to Corlett, Defendants violated his right to free speech. Nor is there any doubt that freedom of expression in an academic setting is a wellestablished right. Keyishian 385 U.S. at 603. So the issue is whether Oakland acted in an objectively reasonable way when it suspended Corlett for three semesters for comparing his professor to a character in a 1960s family-oriented TV comedy. Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action. Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). The dispositive inquiry in determining whether the right is clearly established is whether the reasonable public official would know that his or her conduct was unlawful. Saucier v. Katz, 533 U.S. 194, 202 (2001). But whether the Defendants acted reasonably is not before the Court at the moment. The only question now is whether Corlett has a claim that the Defendants are not entitled to qualified immunity. If anyone should understand the contours of the First Amendment in a university setting it should be high-ranking administrators. Corlett is entitled to his day in court to show that the Defendants should have known that they were violating his First Amendment rights. Defendants have failed to show either that he has no claim or that it is entitled to qualified immunity as a matter of law. The Defendants motion to dismiss should be denied. V. CONCLUSION Plaintiff Corlett does agree that the Defendants have largely refrained from commenting on the merits of [the case at bar]notwithstanding a conspicuous First Amendment Rally the Defendants conducted on campus not long after suit was filed, in which Defendant Mary Beth

fighting words (Chaplinsky v. New Hampshire, 315 U. S. 568, 571572 (1942))); and child pornography (New York v. Ferber, 458 U.S. 747 (1982)).

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Snyder dressed up as a totalitarian despot with Dictator boldly written across her chest. (Exhibits O and P) Therefore, other than the underlying mockery of this rally towards Plaintiff Corletts constitutional rights and civil case, the University and its agents have been relatively composed. Plaintiff Corlett prays that this Court will reject Defendants motion to dismiss his case insofar as his Complaint does state an action upon which relief may be granted. Furthermore, Plaintiff Corlett wholeheartedly rejects the notion that his lawsuit is meritless or frivolous, which is evinced by the reasons set forth supra. Simply put: Plaintiff Corletts Complaint is based in law and in fact, and the case is being litigated only for the purpose of seeking justice. s/ Alari K. Adams Alari K. Adams, Esq. ASquared Legal Group, PLC 200 Walker Street Detroit, Michigan 48226 (P) 810-223-1354 (E) aadams@asquaredlegal.com Michigan Bar No. #P73324 Lead Trial Counsel for Plaintiff and s/ with consent of Kyle J. Bristow Kyle J. Bristow, Esq. France Law Group, LLC 6545 W. Central Ave., Ste. 206 Toledo, OH 43617 (P) 419-725-9300 (E) kbristow@francelawgroup.net Ohio S. Ct. #0089543 Counsel for Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on May 31, 2013, I electronically filed the foregoing papers with the Clerk of the Court using the ECF system, which will send notification of such filing to all ECF participants.

Respectfully Submitted, s/ Alari K. Adams Alari K. Adams, Esq. ASquared Legal Group, PLC 200 Walker Street Detroit, Michigan 48226 (P) 810-223-1354 (E) aadams@asquaredlegal.com Michigan Bar No. #P73324 Lead Trial Counsel for Plaintiff

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OU Honors College students host First Amendment awareness event

Members of the Oakland University community, including friends from the broader community, will be offered a free lunch in exchange for their First Amendment rights. A sweet deal for any law-abiding American? Participants can sign a form waiving their rights any time from 11 a.m. to 1 p.m. on Tuesday, April 9, and find out how it feels to be FA free. The First Amendment Free Food Festival will be hosted by OU Honors College students enrolled in the class, "A Modern Look at the First Amendment." The event is designed to educate citizens about their fundamental freedoms while also having a good time and enjoying a free meal. Guests, however, must symbolically sign away their rights, which include freedom of speech, the right to peaceably assemble, freedom of expression, freedom of the press and the right to petition the government for a redress of grievances. Students and community members can choose to enter the "no freedom zone" after signing a visitor's passport. Once inside, there's plenty of food, but very little freedom. Guests who fail to comply with the 'new rules' will be 'deported' to the dictator's lounge. Of course it's all in fun, but students also hope it will be enlightening. Sponsors of the event include the Oakland University President's Office, Student Affairs, the Journalism Program, Department of Political Science, Oakland Post, Gold Key Honor Society, Pi Sigma Alpha and the Honors College Student Association. The festival will be located between the north entrance of the Oakland Center and Bear Lake. Campus maps are available at oakland.edu/map, and visitors should look for the big white tent on the day of the event. Those seeking additional information can contact Kathrin Parisi at kmparisi@oakland.edu. Oakland University is a vibrant academic community with nearly 20,000 students and more than 265 academic degree programs. To learn more about programs, events, and achievements at OU, visit the news site at oakland.edu/newsatou and follow the news team on Twitter at @OaklandU_News.

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