UM asks judge to dismiss speech-code lawsuit as moot

Melissa Nann Burke
The Detroit News
UM President Mark Schlissel

The University of Michigan wants a federal judge to dismiss a lawsuit challenging its speech code, arguing that the core issue is moot because the school revised the policies under challenge. 

In a Friday court filing, the university also says the plaintiff has no right to make a legal claim because there's no threat that UM students have or could have faced disciplinary action for harassment or bullying by merely expressing controversial opinions on campus.

"Essentially, what’s happened is our climate around free speech and the activity of this Bias Response Team has been pretty grossly miscategorized in the lawsuit and then in the media," UM President Mark Schlissel said in a Friday interview, noting the team is made up of counselors with no investigatory or disciplinary authority.

"Free speech is alive and well at University of Michigan, including the kind of political speech that the plaintiffs in this lawsuit argue is being chilled." 

The university is facing a lawsuit by a Washington, D.C.-based civil liberties group called Speech First, which argues the school's "overly broad" policies violate the First Amendment. Speech First contends the school's policy has "chilled" the speech of conservative students who feel deterred from speaking openly for fear of facing discipline. 

The U.S. Department of Justice on Monday got involved in the suit, siding with Speech First and saying UM's policy, even if well-intentioned, "imposes a system of arbitrary censorship of, and punishment for, constitutionally protected speech."

The university says the Justice Department and the lawsuit misstated UM policy and the atmosphere around free speech on campus. 

Schlissel noted the "dozens" of student groups and outlets for expression of conservative views on campus, including Young Americans for Freedom and College Republicans and invitations for prominent conservatives to speak, including Milo Yiannopoulos, Dinesh D'Souza and Ben Shapiro in recent years. 

Schlissel said the Bias Response Team is part of UM's efforts to promote an inclusive campus environment, where students — no matter their background, politics or ethnicity — feel equally respected and "able to thrive" on campus. 

"These aren't inconsistent things. You can strongly uphold the First Amendment, while at the same time expressing a value system that says we're an inclusive campus where everyone deserves mutual respect, and interactions between people who disagree should be civil," Schlissel said. 

In Friday's court filing, attorneys for the university urged the court to reject Speech First's request for a preliminary injunction.

They denied claims that UM's policy is overly broad, noting the definitions that Speech First challenged "have since been removed, and those that remain are based on Michigan statutes that have been specifically upheld as constitutional." 

UM officials announced Monday they had reviewed and updated the school's policies against bullying and harassment by clarifying and tightening their definitions. 

Schlissel said UM's review of its policies and websites began "many months ago" but was accelerated after the lawsuit was filed a month ago.

The review was initially prompted by an ongoing national discussion around free speech on college campuses, he said. 

"My commitment to the students and the state that we serve is to try to be the very best research university that we can possibly be, and if there’s suggestions that people make that we can do better that are consistent with our mission and our values, I learn from them," Schlissel said. 

In a statement this week, the Justice Department appeared to take credit for UM's decision to revise its policies after the department intervened.

It specifically highlighted UM's elimination of language stating, "the most important indication of bias is your own feelings." 

Schlissel said UM's policy revisions were not issued in response to the Justice Department's concerns, Schlissel said. 

"I wish that I was as efficient as the Justice Department thinks I am. I don’t know of many instances where the Justice Department can issue a statement at 10 in the morning, and by noon the university has changed something," he said.

"This is something we've been working on for quite a while. To be honest, I’m happy the Justice Department is publicly embracing the First Amendment. It's enormously important."

Speech First President Nicole Neily said its lawyer is reviewing UM's filing and will file a reply by June 29. 

"We look forward to a prompt ruling on our motion for preliminary injunction," she said.