Feds side with plaintiff in case challenging UM's speech code

Melissa Nann Burke
The Detroit News
In this April 25, 2018, file photo, Attorney General Jeff Sessions speaks on Capitol Hill in Washington.

Washington — The U.S. Department of Justice is supporting a plaintiff that sued the University of Michigan, with government lawyers calling the school's speech vague and overly broad on the same day that UM announced updates to its policies.

The Washington, D.C.-based civil liberties group Speech First sued UM in federal court last month, alleging the university's policies against harassment and bullying are overly broad and violate the First Amendment because students may preemptively restrict their speech to avoid discipline from the school's Bias Response Team

The Trump administration on Monday got involved as the Justice Department filed an official "statement of interest" in the case. It argued that the university — even if well-intentioned — "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," government lawyers wrote.

"Universities have a crucial legal obligation to protect students from harassment and harm, and wide latitude to promote tolerance and respectful dialogue on their campuses. But state-run institutions like the University also must uphold the bedrock guarantees enshrined in the First Amendment."

But the Department of Justice, like Speech First, has "seriously misstated" university policy and "painted a false portrait of speech on our campus," UM spokesman Rick Fitzgerald said Monday.

The Bias Response Team does not investigate claims of bias or discipline students, he said. 

"Contrary to the department’s statement, the university’s Bias Response Team does not “ha[ve] the authority to subject students to discipline and sanction.' Rather, it provides support to students on a voluntary basis," Fitzgerald said. 

"UM prohibits 'harassing' and 'bullying,' but the definitions of those terms have just been streamlined and are based on provisions of Michigan law that have been upheld by the courts."

Fitzgerald was referring to an update announced Monday by Vice President for Student Life E. Royster Harper that UM has clarified, standardized and posted online the definitions of bullying and harassing. 

The new language eliminates the dictionary definitions and pulls the definitions of “harassing” and “bullying” from Michigan state law, as well as adding safeguards for free speech, according to UM.

“The revised definitions more precisely and accurately reflect the commitment to freedom of expression that has always been expressed in the statement itself,” Harper said in the announcement.

The university said it was revealing the new definitions as it prepares to respond to the lawsuit from Speech First. The response is due Friday, according to the court docket.

UM said officials were already reviewing university websites and policies to ensure they were consistent with the First Amendment prior to the lawsuit and that the review was accelerated after the suit was filed.

"This work was complete by the time we heard about the DOJ action today," Fitzgerald added.

Before Monday's revisions, the Philadelphia-based group Foundation for Individual Rights in Education, which advocates for free speech on campus, had rated UM as a "red light university," meaning it has at least one policy that "both clearly and substantially restricts freedom of speech."

The other Michigan public universities with red light designations are UM's Flint and Dearborn affiliates, as well as Lake Superior State University.

The UM case is the fourth campus free speech suit that the Justice Department has gotten involved in under Sessions, according to the department. 

“Freedom of speech and expression on the American campus are under attack," Acting Associate Attorney General Jesse Panuccio said in a statement. 

"This Justice Department, under the leadership of Attorney General Jeff Sessions, is committed to promoting and defending Americans’ first freedom at public universities."

Speech First welcomed the support of the Trump administration.

“We’re gratified that DOJ believes our case has merit," Speech First President and Founder Nicole Neily said, "and we look forward to our day in court.”


Twitter: @nannburke