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”.
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.”
In June, DOJ filed in support of lawsuit against U. Michigan over Bias Response Team.
DOJ’s Statement of Interest (pdf.) supporting the request for a preliminary injunction provided, 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.
A Judge has just ruled, denying the plaintiff’s a preliminary injunction. MLive reports:
A federal judge has denied a nonprofit organization’s effort to immediately end the University of Michigan’s use of a Bias Response Team it claimed hindered free speech on campus.U.S. District Court Judge Linda V. Parker issued her denial of Speech First’s request for a preliminary injunction against the BRT and any actions UM takes to punish students for violations of the prohibitions on “harassment,” “bullying,” and “bias-related misconduct” set forth in the University’s Statement of Student Rights and Responsibilities.Much like she did during a hearing last week, Parker sided with UM’s defense that the Bias Response Team is not a disciplinary body. Instead, its work is purely supportive and educational, and it works only with students “who agree to participate.””The evidence does not even reflect an instance where the BRT criticized the speech of an individual who is reported to have engaged in biased conduct,” Parker wrote. “But even if the record reflected that the BRT had criticized an individual’s speech, there would be no First Amendment violation “in the absence of some actual or threatened imposition of governmental power or sanction.”
The news report does not make clear that the court’s discussion and the primary reason for rejecting the preliminary injunction was that the court found Speech First had no “standing” to sue. That is, there was not a sufficiently concrete harm to Speech First as to permit it to sue.
The Opinion and Order (pdf.)(full embed at bottom of post) provides, in pertinent part on the standing issue:
This action reflects a conflict faced by many public universities in their attempt to balance the First Amendment rights of students and the need to provide a safe learning environment free from discrimination and harassment. Speech First, Inc., an organization that seeks to preserve the civil rights of students at colleges and universities, filed this action on behalf of three unidentified students at the University of Michigan (“University”) who claim their rights to free speech have been chilled by the University’s disciplinary code prohibiting “harassment,” “bullying,” and “bias-related conduct.” Speech First also challenges the University’s “Bias Response Team,” which it claims is tasked with investigating and punishing students for “bias” conduct.* * *Speech First establishes a concrete and objective threat of harm in connection with the Statement’s prohibited conduct. Speech First alleges, and Defendants do not deny, that students engaged in “bullying” and “harassing” behavior can be and have been punished through OSCR proceedings. Speech First, however, fails to demonstrate that the BRT poses anything but a “subjective chill” on students’ free speech rights.* * *In fact, the record evidence reflects that the BRT neither investigates reports of “bias” nor has the authority to mete out any form of punishment for “bias” or “bias conduct.” It is not a disciplinary body and cannot punish or sanction anyone. On those occasions where the BRT contacts the person whose conduct is the subject of a report (which occurs in a minority of cases), the person’s response or willingness to become involved in discussions is voluntary. This is stated on the homepage of the BRT’s website: “The BRT cannot impose discipline and no one is required to participate in any aspect of the BRT’s work.” See https://deanofstudents.umich.edu/bias-incidents. As the webpage also states: “if you wish, the person alleged to be responsible for the incident may be contacted and invited to voluntarily meet with a member of the BRT. Such a meeting cannot be compelled, however. Id., emphasis added….* * *The evidence in the present matter similarly reflects no threats—direct, subtle, or implied—from the BRT. As indicated, the BRT website expressly states that it lacks the authority to impose discipline and that no one is required to participate in any aspect of its work and cannot be compelled to meet. Speech First presents no evidence of any communication from the BRT to an individual reported to have engaged in “bias” or “biased conduct” conveying something different—more specifically, pressure or an intimation that some form of punishment or adverse action will follow the failure to accede the BRT’s requests.The evidence does not even reflect an instance where the BRT criticized the speech of an individual who is reported to have engaged in biased conduct. But even if the record reflected that the BRT had criticized an individual’s speech, there would be no First Amendment violation “in the absence of some actual or threatened imposition of governmental power or sanction.” Penthouse Int’l, 939 F.2d at 1015. The Court agrees with defense counsel’s assertion at the motion hearing that a university should be able to address a student when his or her speech may offend or hurt other students without running afoul of the First Amendment….* * *In short, Speech First fails to demonstrate that the BRT poses a concrete or objective threat of harm to the First Amendment rights of University students. The Court therefore holds that Speech First fails to demonstrate the injury-in-fact necessary to establish Article III standing with respect to its challenge to the BRT.
After rejecting the preliminary injunction for lack of standing, the court also found that the controversy was moot because U. Michigan had changed some of the terms at issue in the lawsuit:
Defendants argue that Speech First’s claims are moot in light of the University’s elimination of the challenged definitions for “harassing” and “bullying” conduct, leaving definitions based only on Michigan statutes which Speech First does not challenge. Speech First argues in reply that the University’s unilateral changes to its definitions do not moot the case and that the changes do not impact Speech First’s challenges with respect to the BRT….* * *The University’s conduct after this lawsuit was filed “ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” As such, the Court finds Speech First’s constitutional challenge to the University’s previous “bullying” and “harassing” definitions to be moot.
For reasons related to the court’s findings above, the court also found there was no “irreparable harm” absent an injunction.
The MLive article quoted U. Michigan officials as follows:
While the lawsuit remains open, UM Spokesperson Kim Broekhuizen said the university is carefully reviewing the latest ruling for all of its implications as the proceedings move forward.”We are pleased to see the court has affirmed our definitions of bullying and harassment and agrees that the mission of the university’s Bias Response Team is educational, not punitive and does not violate the First Amendment,” Broekhuizen said.
I have reached out to Speech First for comment, but as of this writing have not received a response.
In my original coverage of the lawsuit, I wrote:
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.
This ruling is a big win for the campus thought and speech police, and the social justice warriors who use bias response team reporting to terrorize others into silence.
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Speech First v. U. Michigan – Opinion and Order Denying Preliminary Injunction (8!6!2018) by Legal Insurrection on Scribd
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