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DOJ files in support of lawsuit against U. Michigan over Bias Response Team

DOJ files in support of lawsuit against U. Michigan over Bias Response Team

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….

You can view U. Michigan’s bias reporting website here, and reporting form here. U. Michigan also has an infographic describing the process.

The Complaint (pdf.) took particular issue with the vagueness of the disciplinary code:

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.”

The Justice Department now has filed a Statement of Interest (pdf.)(full embed at bottom of post) supporting the request for a preliminary injunction. (h/t Campus Reform)

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.


Speech First v. U Michigan – DOJ Statement of Interest in Support of Plaintiff by Legal Insurrection on Scribd


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This is good news. There is no hope if we don’t fight back.

Meanwhile the giddy kiddies over at The_Donald at Reddit keep complaining that Sessions isn’t “doing anything.” I haven’t decided whether they are confused children or trolls.

I like what I’m seeing from the DOJ.

“Contrary to the department’s statement, the university’s Bias Response Team does not ‘have the authority to subject students to discipline and sanction,’”

The Bias Response Team’s infographic says it works like this:
The offended student reports the speech that hurt their feelings, then the BRT contacts the complaining student to set up a meeting. Next, the BRT meets with the complaining student “to discuss support and course-of-action options.” Then “the discussed plan will be carried out along with follow-up.”

So even though BRT isn’t doing the investigating or disciplining of the speakers themselves, they are basically orchestrating same on behalf of the complaining student. And the chilling effect on speech is the same.

DINORightMarie | June 12, 2018 at 6:11 pm

This is a good step. She is moving in the right direction.

However, they need to do more. Dismantling ALL of Title IX that Obama’s that DoE imposed on colleges and schools, as well as undoing ALL the other regulations and policies that are forcing and even funding these bureaucratic kangaroo courts and pseudo-legal efforts — all in the name of “tolerance” and “fairness” and “safe spaces” and “stopping harassment” etc. etc. etc., of course — MUST happen. (It has begun, but it is far from done – as this LI post shows.)

DoE Sec. Betsy DeVos has been maligned heavily by the left (just Google Title IX and DeVos and see what results you get!) – but she has not moved fast enough, IMHO, on this front.

Dismantle the pseudo-legal system from campuses, from ALL public schools, now!

    JohnSmith100 in reply to DINORightMarie. | June 14, 2018 at 11:35 am

    After Obama, I bet it will be at least a generation before another black presidential candidate has a prayer in hell of getting enough votes to be elected. I contend that Trump won, and Hillary lost in large part because of all the crap Obama and Holder pulled. I really hope that Holder does run, so that we can make him whine as much as Hillary.

notamemberofanyorganizedpolicital | June 12, 2018 at 6:44 pm

I do believe all public colleges – from CC to universities are all guilty of the same thing.

They should self-report. The basis of liberal (i.e. divergent) bias, nay, prejudice, is political congruence (“=”), as in selective, as in exclusion, of politically unfavorable classes, and its corollary.

JohnSmith100 | June 13, 2018 at 9:06 am

I receive mailing from a local CC, and there has been lots of crap about not hurting feelings. College is supposed to prepare these students for the workplace, dealing with differing opinions, working professionally with people whom you may not like, and so much more is necessary.

As an employer, I expected people to perform, and I really did not care if non performers feeling were hurt. They either do their jobs, or I hurt their feelings by first chewing their tails out, followed by termination if they do not rise to the occasion.