Plaintiff “has established that it is likely to succeed on the merits of its claim” that U. Michigan’s policies “are facially unconstitutional under the First and Fourteenth Amendments….”
In early May 2018, we covered a lawsuit brought by a new group called Speech First challenging U. Michigan’s Bias Response Teams, Lawsuit: U. Michigan speech code and Bias Response Team “profoundly chill free speech and open discourse”:
If you have not heard of Bias Response Teams, then you haven’t been around campus in the last decade.
These teams, often referred to at BRTs, are the equivalent of SWAT teams standing by to enforce campus speech and conduct codes. All of the problems we have documented with campus sexual assault kangaroo courts apply equally to BRTs – the teams enforce often vague standards highly dependent on how a complainant feels, there is an opaque process with little due process, and the results often track accepted campus political correctness rather than a search for the truth. Yet the punishments can cause lasting damage….
31. The effect of these amorphous prohibitions on “bullying,” “harassment,” and “bias-motivated misconduct” is to profoundly chill free speech and open discourse at the University.
32. A student who voices a controversial or unpopular opinion—or who seeks to use humor, parody, or satire when discussing sensitive topics—could face severe punishment up to and including expulsion if even one other student perceives that speech to be “demeaning” or “bothersome.” Put differently, students must be certain before speaking that their words will not be perceived as offensive by even the most sensitive student on campus.
33. Many students will inevitably choose not to speak—or to speak less forcefully about controversial topics—rather than face the risk of disciplinary proceedings and punishment if another student takes offense at their words and files a complaint alleging violations of the Statement’s ban on “bullying,” “harassment,” and “bias-motivated misconduct.”
In a Press Release, DOJ explained its intervention:
The Department of Justice today filed a Statement of Interest in Speech First, Inc., v. Schlissel in the Eastern District of Michigan. The plaintiff, Speech First, a nationwide organization dedicated to defending civil liberties, alleges that the University of Michigan has adopted policies prohibiting and punishing speech protected by the First and Fourteenth Amendments. Speech First alleges that the University of Michigan’s policies on “harassment,” “bullying,” and “bias” are so vague and overbroad as to prompt students to limit their speech out of fear that they might be subject to disciplinary sanction, including “individual education” or “restorative justice” at the hands of the University’s Bias Response Team.
The United States’ Statement of Interest argues that the University of Michigan’s Statement of Student Rights and Responsibilities, which prohibits “harassment,” “bullying,” and “bias,” is unconstitutional because it offers no clear, objective definitions of the violations. Instead, the Statement refers students to a wide array of “examples of various interpretations that exist for the terms,” many of which depend on a listener’s subjective reaction to speech.
The United States also argues that the University’s Bias Response Policy chills protected speech through its Bias Response Team. The Bias Response Team, which consists of University administrators and law enforcement officers, has the authority to subject students to discipline and sanction. It encourages students to report any suspected instances of bias, advising them: “[t]he most important indication of bias is your own feelings.” According to the plaintiff, the Bias Response Team has responded to more than 150 alleged incidents of bias in the last year.
The Statement of Interest provides, in part:
The United States respectfully submits this Statement of Interest under 28 U.S.C. § 517, which authorizes the Attorney General “to attend to the interests of the United States in a suit pending in a court of the United States.” The United States is resolutely committed to protecting First Amendment freedoms and to ensuring, as Congress has directed, that public “institution[s] of higher education . . . facilitate the free and open exchange of ideas.” 20 U.S.C. § 1011a(a)(2). In the United States’ view, Plaintiff Speech First, Inc., has established that it is likely to succeed on the merits of its claim that the University of Michigan’s Statement of Student Rights and Responsibilities (“Statement”) and Bias Response Policy are facially unconstitutional under the First and Fourteenth Amendments….
In particular, the University’s policies authorize University officials to dispense disciplinary consequences against a speaker who engages in constitutionally protected speech based on nothing more than a listener’s “feelings” that the speech was “hurtful” or “bothersome.” The University’s policies thus do precisely what the First Amendment forbids: they ban a broad swath of core protected speech based solely on “[l]isteners’ reaction,” Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 134 (1992), that the speech is somehow “offensive or disagreeable,” Texas v. Johnson, 491 U.S. 397, 414 (1989).
The University’s violation of the First Amendment does not end there. The University has also declined to bind itself to any definitions for key terms in the Statement, let alone “narrowly drawn, reasonable, and definite standards for [University] officials to follow” in enforcing it. Niemotko v. Maryland, 340 U.S. 268, 271 (1951). Instead, the University has identified only “example” definitions that University officials may or may not adhere to in applying the Statement’s proscriptions on and punishments of speech.
Campus Reform reports that U. Michigan is disputing DOJ’s characterization of its bias response team program:
The Department of Justice (DOJ) has filed a statement of interest in a lawsuit challenging the University of Michigan’s controversial speech code policies.
Nicole Neily, president of Speech First, praised the Trump administration for its interest in the lawsuit, lauding the DOJ for its effort in protecting the First Amendment rights of students.
“We’re delighted that the U.S. Department of Justice has filed a statement of interest in our case against the University of Michigan,” Neily told Campus Reform. “Over the past year, DOJ has shown that they place a high priority on the First Amendment rights of students across the country, and we look forward to the court ruling on the merits of Speech First v. Schlissel.”
University of Michigan officials, however, have reportedly disputed the accuracy of the DOJ’s statement, arguing that the school’s Bias Response Team does not have the power to discipline students.
“Contrary to the department’s statement, the university’s Bias Response Team does not ‘have the authority to subject students to discipline and sanction,’” said university spokesman Rick Fitzgerald, as reported by Michigan Radio. “It provides support to students on a voluntary basis; it does not investigate claims of bias or discipline students in any way.”
That DOJ now is intervening in support of free speech rights on campus is the big story here.
We will continue to follow the case.
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