DOJ supports free speech group suing University of Michigan

Last month I wrote about a lawsuit filed against the University of Michigan by a group called Speech First. The University encouraged people to anonymously report incidents of bias, telling them “The most important indication of bias is your own feelings.” Speech First filed the lawsuit on behalf of current U of M students who feel speech on campus is chilled by the possibility that anything they say on a controversial topic could result in them being reported and disciplined. Today the Department of Justice filed a Statement of Interest in the case, supporting the lawsuit brought by Speech First.


The University of Michigan (“University”) proclaims on its website that “[f]reedom of speech is a bedrock principle of [its] community and essential to [its] core educational mission as a university.” Unfortunately, the University is failing to live up to that laudable principle. Instead of protecting free speech, the University imposes a system of arbitrary censorship of, and punishment for, constitutionally protected speech. The University’s policies prohibit speech that any listener finds “bothersome” or “hurtful”—an overbroad, vague, and subjective standard that is a paradigmatic example of the chilling of free expression prohibited by the First Amendment…

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. Accordingly, individuals “of common intelligence must necessarily guess at” the parameters of the Statement’s speech prohibitions, Broadrick v. Oklahoma, 413 U.S. 601, 607 (1973), and are being forced to limit their speech and “‘steer far wider of the unlawful zone,’ than if the boundaries of the forbidden areas were clearly marked,” Baggett v. Bullitt, 377 U.S. 360, 372 (1964). And members of the University community engage in such speech activities at the peril of potentially “arbitrary, discriminatory, and overzealous enforcement” by University officials, who may apply any definition or no definition at all to the Statement’s key terms—or even different definitions across cases based on their own personal approval or disapproval of the challenged speech.


For its part, the University denies that its Bias Response Team has any ability to investigate or hand out punishment. From Michigan Live:

UM Spokesman Rick Fitzgerald said the Department of Justice, like Speech First, has “seriously misstated University of Michigan policy and painted a false portrait of speech on our campus.”

Contrary to the department’s statement, the university’s Bias Response Team does not have the authority to “subject students to discipline and sanction,'” Fitzgerald said. “Rather, it provides support to students on a voluntary basis; it does not investigate claims of bias or discipline students in any way…

On Monday, UM provided clarity and standardized the definitions of bullying and harassing, both of which are prohibited under the Statement of Student Rights and Responsibilities.

The Bias Response Team page on the University’s website seems to back that up but does note that the BRT may “may discuss with a student how to file a complaint with OSCR or may itself refer a matter to OSCR if it appears that a violation of University’s Statement of Student Rights and Responsibilities has been alleged.” In other words, they won’t investigate themselves but they may help connect the person complaining with someone who will. It’s not clear if hurt feelings constitute grounds for elevating a claim of bias to the people who can discipline students.


As for the definitions of bullying and harassment, this post on the University’s internal news source points out the clarification is part of university’s response to the lawsuit:

The definitions are being clarified as U-M prepares to respond to a lawsuit from Speech First Inc. challenging the university’s policy against harassment and bullying, and the university’s Bias Response Team as infringing on the constitutional free speech rights of students…the university revised the statutory language to narrow the potential scope of what is prohibited, and to add additional safeguards for free speech.

So there you have it. The university claims it was never doing anything wrong, but now they’re changing the definitions of harassment and bullying to make that more clear in light of the lawsuit.

Last October, students at U of M heckled and disrupted a speech by Charles Murray. Clearly, there’s room for improvement when it comes to respect for the First Amendment:

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