In May 2018, we reported on a lawsuit filed by a group called Speech First, challenging the speech codes and “Bias Response Teams” at the University of Michigan, 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.

https://deanofstudents.umich.edu/files/dos/reporting_a_bias_incident.pdf

The Complaint — Chill on Free Speech

In the Complaint (pdf.), which sought injunctive relief, Speech First alleged that the Bias Response Teams and related speech codes violated the First Amendment, taking 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 Complaint also detailed the role of the BRT:

34. The University has further supplemented the bullying/harassment provisions of the Statement with a “Bias Response Team” (BRT).

35. The BRT is comprised of University administrators and law enforcement. It also may include students and “community representatives who serve the U-M community.” The BRT is tasked with managing “the response and management of bias incidents.”

36. Like the definitions of harassment and bullying in the Statement, the University has adopted an extremely vague, open-ended, and subjective definition of bias that can encompass a wide array of conduct, including speech and expression protected by the First Amendment.

37. The University defines “bias” as “a pre-formed negative opinion or attitude toward a group of persons who possess common physical characteristics, such as skincolor; or cultural experiences, such as religion or national origin.” Such “bias,” according to the University, “often stems from fear, misunderstanding, hatred, and stereotypes, and may be intentional or unintentional.”

38. The University’s definitions of “bias” encompass countless instances of protected speech and expression on all manner of topics. Under the plain text of these definitions, a student may be deemed to have acted with “bias” if, for example, she gives a speech sharply criticizing the Catholic Church and its adherents for not allowing women to become priests; this student has expressed a “negative opinion” or “attitude” about a certain group of people based on their “cultural experience” of religion.

* * *

64. The BRT has a profound chilling effect on speech and expression at the University.

65. Based on a vague and highly subjective definition of “bias,” any student who offers an opinion that may be deemed by another student to be “hurtful” to his or her “feelings” risks an investigation from the University’s disciplinary apparatus and the potential for punishment ranging from “restorative justice” and “individual education” to formal disciplinary action. The inevitable result is that many students will be deterred from speaking at all, especially on controversial topics that another student may find “hurtful” or “offensive.”

66. The mere existence of the BRT mechanism chills protected expression even apart from any punishments that may result at the end of the process. The University has created and promoted a system in which students can file anonymous reports of “bias” under an amorphous definition based on anything that harms their “feelings,” which will then lead a team of University officials to spring into action to investigate. Students voicing controversial or unpopular opinions, or seeking to engage in humor, satire, or parody, may credibly fear that the BRT will be summoned in response to their speech and that they will be forced to defend themselves against accusations of “bias.” The prospect of facing such an investigation will inevitably lead many students to refrain from speaking altogether, to articulate their views less forcefully, or to steer clear of controversial topics. This chilling of protected speech and expression will exist regardless of whether a student is ultimately exonerated at the end of the BRT process.

The Department of Justice filed a in support of the injunction sought by Speech First. In its Statement of Interest (pdf.) supporting the request for a preliminary injunction, DOJ argued:

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….

District Court Denied Preliminary Injunction For Lack of Standing

The District Court, however, denied the preliminary injunction, finding that Speech First had no standing to sue as it did not allege a sufficiently concrete harm:

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.

Sixth Circuit Reverses and Remands

The Court of Appeals for the Sixth Circuit has just reversed the District Court and reinstated the lawsuit, directing the District Court to proceed with an preliminary injunction hearing. The Appeals Court did not itself grant the relief, leaving that to the District Court.

From the Sixth Circuit Opinion:

Universities have historically been fierce guardians of intellectual debate and free speech, providing an environment where students can voice ideas and opinions without fear of repercussion. According to Speech First, the University of Michigan has not lived up to this historic ideal. Instead, Speech First contends that the University of Michigan has stifled student speech through its policy prohibiting bullying and harassing behavior and its Bias Response Team initiative. Speech First claims that the policy and initiative violate the First Amendment, sweeping in protected speech through overbroad and vague prohibitions.

Shortly after filing its complaint, Speech First moved for a preliminary injunction enjoining enforcement of the policy and use of the initiative. The district court declined to issue the preliminary injunction, based in part on its findings that Speech First lacked standing to challenge the Bias Response Team initiative and that the claims challenging the policy were moot. We disagree. Accordingly, for the reasons set forth below, we vacate the district court’s denial of injunctive relief and remand the case for the district court to consider the merits of Speech First’s motion for a preliminary injunction.

* * *

The district court concluded that Speech First was not likely to succeed on the merits of its claim against the Response Team because Speech First lacked standing to assert that claim. We disagree. Speech First does not allege that the University has violated Speech First’s constitutional rights. Rather, Speech First asserts that the University violated the rights of its members who attend the University and, therefore, that it has associational standing to bring a lawsuit on behalf of those members….

Speech First has standing to challenge the Response Team here because its members face an objective chill based on the functions of the Response Team. Speech First recognizes that the Response Team lacks any formal disciplinary power and that bias incidents are not directly punishable under the Statement, but maintains that the Response Team acts by way of implicit threat of punishment and intimidation to quell speech. We agree.

The Appeals Court rejected the claim that the case was “moot” because U. Michigan had made some changes after the lawsuit was filed:

In sum, the University has not put forth enough evidence to satisfy its burden to show that its voluntary cessation makes it “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, 528 U.S. at 189. Therefore, Speech First’s claim challenging the definitions of bullying and harassing behavior is not moot.

The Appeals Court remanded for further proceedings:

In assessing Speech First’s likelihood of success on the merits, the district court did not address the merits beyond what was necessary for determining mootness and standing. Although we find that the district court was incorrect in its determination of Speech First’s standing to challenge the Response Team and whether the challenge to the definitions of bullying and harassing was moot, we will not resolve the ultimate question of Speech First’s likelihood of success on the merits. Instead, we remand this case for the district court to consider in the first instance Speech First’s likelihood of success in light of our findings here. Further, although we review the district court’s findings on the likelihood of success de novo, we grant the district court substantial deference in its weighing of the preliminary injunction factors. Therefore, we decline Speech First’s invitation to instruct the district court to issue the preliminary injunction, especially in light of the district court’s findings that the other three preliminary injunction considerations weigh against granting the preliminary injunction. For a similar reason, we also decline the dissent’s suggestion that we affirm the district court’s decision. Even if the other three factors weigh against a preliminary injunction, the district court may still grant one if it determines that, in light of our holding, Speech First does have a strong likelihood of success.

Nicole Neily, President of Speech First, issued the following statement:

“We are gratified that the court of appeals restored our case against the University of Michigan and ordered it to proceed in the district court. We continue to believe that the University’s policies, including the ones it tried to abandon after we filed suit, are blatant violations of the First Amendment. We look forward to vindicating our members’ rights as this litigation progresses.”

Speech First lives to fight another day. But it’s clear the District Court is hostile to the case on the merits, so it will be an uphill fight. Expect Speech First to seek to expand the evidentiary record to address the concerns raised by the District Court in the first decision.

As for Bias Response Teams, they continue to be a source of fear and intimidation, manipulated and abused to stifle non-liberal speech onca campuses.

 
 
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