Court Allows Indirect Control of Campus Speech

A federal appeals court ruled Monday that the University of Michigan could be dampening free speech on campus by allowing a group that helps students who have experienced potentially prejudicial acts to operate at the institution.

Speech First, a Washington, D.C.-based civil liberties watchdog, sued Michigan last year, asking for an injunction to halt the activities of the university’s Bias Response Team, which helps investigate incidents deemed racist, sexist, hostile to LGBTQ students or otherwise offensive to certain groups of people. Similar teams are common at other colleges and universities, but their functions vary.

Speech First claimed in its lawsuit that the Bias Response Team is illegal because it could potentially deter students from making statements or engaging in protests that some on campus might find offensive but might be protected under the First Amendment.

A U.S. District Court judge initially denied the injunction last year.

[Bloomberg Warns Colleges on Limiting Free Speech]

Michigan officials had successfully defended the response team, saying it could not discipline students who were behaving in ways perceived to be prejudicial. The group merely provides support for those on campus who felt they had been the targets of biased acts, the university argued in court filings. For instance, the team may reach out to an affected student to discuss an incident and discuss if the student wants to file a formal complaint with the university or campus police.

Team members can ask a student who engaged in the potentially offensive speech to voluntarily meet with them, but they cannot force the student to do so, the university stated in court filings.

Speech First noted, however, that the team can refer incidents to campus law enforcement, the Office of Student Conflict Resolution or the mental health counseling center.

In a 2-to-1 decision, the three-member U.S. Court of Appeals for the Sixth Circuit determined the team’s ability to make these referrals “is a real consequence that objectively chills speech.”

The case will now be returned to the lower court, which will once again consider Speech First’s injunction.

“The referral itself does not punish a student — the referral is not, for example, a criminal conviction or expulsion. But the referral subjects students to processes which could lead to those punishments,” Judge David McKeague wrote for the majority. “The referral initiates the formal investigative process, which itself is chilling even if it does not result in a finding of responsibility or criminality.”

McKeague wrote that while the invitation to meet with team members contains no overt threats of punishment, “the referral power lurks in the background.”

[Intimidation-Produced Silence at Stanford]

University spokeswoman Kim Broekhuizen said the appeals court did not address the merits of the university’s existing free speech policies and officials are confident they will prevail in court.

“U-M is deeply committed to the protection of free speech by students, faculty, and outside speakers alike, regardless of their views,” she said in an email.

The case has attracted national attention. The U.S. Department of Justice filed a statement of interest last year, backing the lawsuit. The department, which has also supported lawsuits eliminating so-called free-speech zones on campuses, agreed with Speech First that the university’s rules likely did inhibit free speech.

Speech First also contended in the lawsuit that the university’s definitions of “bullying” and “harassment” in its conduct policies, which came from the Merriam-Webster Dictionary, were overly broad and could limit protected speech.

The university acted immediately after the suit was filed and changed the definitions of the two terms to match Michigan law, which Speech First does not believe are unconstitutional (see page three of the lawsuit).

“We are gratified that the Court of Appeals restored our case against the University of Michigan and ordered to proceed in the District Court,” Nicole Neily, president of Speech First, said in a written statement. “We continue to believe that the university’s policies, including the ones it tried to abandon after we first filed suit, are blatant violations of the First Amendment. We look forward to vindicating our members’ rights as this litigation progresses.”

[The Assault on Free Thought]

Although Michigan officials argued the lawsuit was largely unnecessary because it had changed the definitions of bullying and harassment, McKeague wrote in the opinion that the timing of the shift “raises suspicions” and actually “increases the university’s burden to prove” its policies protecting free speech are genuine.

“The university states that before the complaint was filed, it was in the process of review[ing] … the university’s website and policies to ensure their consistency with principles of free speech,” McKeague wrote. “There is no indication, however, that the university was so much as considering changing the definitions as part of its review. Without any indication that its review would have resulted in changing or removing the definitions, the fact of the review does not buttress the legitimacy of the university’s actions. Nor does it explain the expedient timing of the definition’s removal.”

Judge Helene White dissented, writing in court filings that the “evidence is unclear” whether the team actually refers incidents to police or the conduct office. White cited a university official on the team who said that she might discuss with students whether they wanted to file a formal complaint, but the team had never been the entity that initiated such a complaint.

“Even if Response Team members did refer reported conduct to the [conduct office] or police, any member of the university community was already able to do so,” White wrote.

The decision should make institutions in Midwestern states under the jurisdiction of the Sixth Circuit pause “when thinking through how they form and implement bias response teams,” said Marieke Tuthill Beck-Coon, director of litigation at the Foundation for Individual Rights in Education, another group that defends civil liberties in academe.

“The opinion was also great in that it refused to throw the lawsuit out as moot where the school dropped its overbroad policies and promised to behave in the future but still defended the old policies in court,” Tuthill Beck-Coon said.

Reprinted with permission from Inside Higher Ed.

Jeremy Bauer-Wolf

Jeremy Bauer-Wolf

Jeremy Bauer-Wolf is a reporter for Insider Higher Education primarily writing about gender discrimination, Title IX, free speech and athletics policy issues for an online audience of nearly 2 million unique viewers monthly.

3 thoughts on “Court Allows Indirect Control of Campus Speech

  1. Lol, Jeremy Bauer-Wolf is writing for Minding the Campus? He is notorious for running hit pieces against libertarians. What is he doing here — did he have an epiphany? Am I missing something?

  2. These bias report teams are identical to the STASI in the old DDR. No doubt records will be kept of offenders even without punishment and the “offender” will never know it. When the PC colossus finally collapses, former students will discover that their friends and roommates were informers, just as happened in the DNR. This spying also offers excellent opportunities to settle scores. Students who received low grades may well turn in their professors of creating hostile environments or disrespecting minorities. Time we recognized the totalitarian nature of PC.

  3. This was reversed and remanded which means that the Federal District Court gets to re-hear the case in light of the 6th Circuit’s ruling here — which is biding on not only it but every other Federal Court in the states* of Kentucky, Michigan, Ohio, and Tennessee.

    This means two things — while there is no injunction (yet) against the University of Michigan, it means that Speech First is likely to get one when they go back to the district court. More importantly, it puts every administrator at every public college or university in those four states* on notice that Bias Intervention Teams (of this type) are un-Constitutional and hence “a violation of [student’ civil rights under color of law” — that’s significant because it enables the students to bypass state tort claims acts and sue for money in Federal court under the auspices of 42 USC 1983.

    This means that college administrators can be sued personally, and while Section 1983 only allows you to sue “persons”, municipalities are defined as “persons” and a lot of large state universities are now legally defined as “a municipality” by state law so as to permit mutual aid agreements between the town and campus police departments.

    Hence this was a significant decision, and to understand why, one needs to read the dissent and understand what that judge was disagreeing with — she was a party to the deliberations.

    The majority largely relied on the 1963 landmark case of Bantam Books, Inc. v. Sullivan, 372 U.S. 58, in which the Rhode Island Commission to Encourage Morality in Youth sent dozens of notices to a publication distributor stating that certain publications it distributed were inappropriate for sale to youths. The US Supreme Court characterized these notices to be “phrased virtually as orders, reasonably understood to be such by the distributor” — and hence no more “voluntary” than the BIT’s request for a student to meet with them.

    This is very significant because it indirectly applies to mandated mental health treatment, which by definition can not be punitive — even when it is. And even when the counseling center is ethical enough not to engage in punitive psychiatry, having to go prove ones sanity is a chilling burden on free speech.

    And as this case will now go to discovery, it enables Speech First to inquire about the “sixteen disciplinary cases involving ‘bullying’ or ‘harassing’ misconduct from 2016-2018” — and the facts on those could be quite interesting. (FERPA will not apply because of the exception for judicial proceedings — UMich has gotta give them those files.)

    And the ultimate irony here is that this is all happening 30 years after the U-Mich Hate Speech Code was thrown out, and 22 years after the Jake Baker decision. You’d think that they’d eventually get a clue….

    * Or commonwealth, i.e Kentucky

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