Free speech policy stirs controversy at University of Michigan

University of Michigan student Sydney Whack remembers the frustration she and other African-American students felt a year ago when the name tag outside the dorm room of one of her friends was vandalized with the N-word.

At the time, UM officials said the resident adviser handled the incident properly in West Quad by reporting it to university housing and diversity staff. In addition, community meetings were held with residents.

UM's policy does not allow student housing staff to remove anything from a student's door — a rule that was emphasized earlier this year during training for resident advisers: students living on campus have a right to say what they want on their doors and inside their campus dwelling spaces. 

This is not a new policy, UM officials add, but it is being examined more closely as the university responds to a lawsuit challenging how it handles language that some might find offensive. At the same time, students across the country are grappling with the issue of free speech on college campuses.  

Whack, a UM senior from Southfield, said hate speech should not be tolerated at UM, or anywhere else, and an RA should be able to take down something that is going to offend others.

"Freedom of speech does not include hate speech of any type," said Whack, 21, who lived in the dorms for two years. "That argument is invalid. To say you can freely go around disrespecting people and making people feel uncomfortable because you have freedom of speech isn’t correct. That is not logical."

Dylan Gilbert, another student who lives in UM's all-female Martha Cook hall, agreed.

"There is a line between freedom of speech and hate speech," said Gilbert, 19.

But Amir Baghdadchi, a UM spokesman for University Housing, defended the policy, saying, "There is no way to define 'hate speech.'" He added that eliminating such speech does nothing to change the culture in which offensive language occurs.

That's why UM is committed to protecting the freedom of expression of the 9,500 students who live in 18 residence halls on its Ann Arbor campus, he said.

"When it comes to a student's personal expression, we protect that speech by fundamentally making it our policy that we do not suppress speech," said Baghdadchi. "If we come across speech that someone else finds offensive, or our staff finds egregious in some way, our choice is not between suppressing it, eliminating it or ignoring it. Instead, we choose to respond to that speech."

UM is the first university that's been sued by Speech First, a Washington, D.C.-based civil rights organization that was founded a year ago and is working to protect students' free speech rights across the country.

Speech First's lawsuit challenged UM's policies, including prohibitions on harassment, and bullying. It also questioned the constitutionality of UM's Bias Response Team, alleging that the university has adopted policies that prohibit and punish protected speech.

UM fired back, calling the group's claims “a false caricature” of the university’s free speech policies and practices.

Some of the most contentious campus speech in recent years has centered on race, ethnicity and religion. Incidents at UM have included a swastika found in a restroom, slurs directed at the Latino community that were painted on UM's iconic rock near campus and racist fliers posted on campus. 

But the issue of speech in the dorms at UM is unique since those are private, individual spaces and students have a right to say what they want, said Baghdadchi.

Offensive speech is on a continuum, and can range from rude or crude language to threatening statements, he said. The first responsibility of a student staff member, such as an RA, is to report the speech to the hall director or safety and security staff.

Then there is follow-up, Baghdadchi said, that can range from a knock on the door and a conversation to a meeting with hall residents for a discussion to understand the impact of written or oral speech.

"Eliminating speech …  doesn’t fundamentally address the fact that someone in the community may have expressed an opinion that may have caused harm," Baghdadchi said. "It doesn’t change anything in the culture of that hall. Only responding does."

Speech First filed its first lawsuit in May against UM and a similar lawsuit against the University of Texas in December.

The Trump administration waded into the lawsuit last June, when the Justice Department filed a statement of interest in the case saying that the school's speech policy was vague and overly broad.

The same day, UM announced changes to its definitions of "bullying" and "harassing" based on Michigan law upheld by the courts. 

A week later, UM asked a federal judge to dismiss the case.

Litigation is ongoing.

In an email to The Detroit News, Speech First founder Nicole Neily said the group chose UM as the first university to sue because the university's policies were the first ones brought to the organization's attention. 

Neily declined to speculate on whether the lawsuit impacted UM's housing policy or elaborate. 

"We will work with the courts to determine what more needs to be done to ensure all students’ First Amendment rights on campus," said Neily, 38.

Experts say regulating speech in dorm rooms can infringe on a student's First Amendment rights —  and won't change much.

"If a student engages in speech that appears to reveal racism or sexism on the student's part, it might be quite offensive to others, but it also provides some valuable information to others about the speaker's views," said Charles Calleros, a professor in the Sandra Day O'Connor College of Law at Arizona State University.

"Prohibiting that person from expressing himself likely won't change those views; indeed, it likely will just elevate him as a First Amendment martyr," Calleros said. "On the other hand, if an RA or mediator supplied by the administration invites the speaker and affected students to a meeting to discuss the speech, that can sometimes result in growth on all sides.

"Also, we should remember that the disputed speech is an example to others of the realities that we must all face in the 'real world' and thus a part of a robust higher education," he said.

There are times when speech can be regulated without violating the First Amendment, Calleros added.

"If it is obscene, or imminently threatening, or if it is discriminatorily directed to certain students for a harassing message based on their membership in groups, then the university can intercede," he said. "So the university can and should always make it clear in their policies and dorm contracts that speech of that sort can be regulated." 

Nadine Strossen, the John Marshall Harlan II Professor of Law at New York Law School, added that displays of speech that "conveys a hateful or discriminatory message — may and should be taken down and punished when ... they directly cause certain imminent, specific, serious harms."

For example, a hateful message that is directed at a particular person or small group of persons, and intends to instill a reasonable fear that they will be subject to harm, constitutes a punishable 'true threat,'" said Strossen, a American Civil Liberties Union past president who authored "HATE: Why We Should Resist it With Free Speech, Not Censorship."  

 "In contrast, speech may not be suppressed or punished solely because we find its message hateful and hated," Strossen said. "As Justice Oliver Wendell Holmes famously declared, we must respond to 'the thought that we hate' with education, persuasion, and other noncensorial measures. 

"Experience has shown that these alternative measures are more likely than censorship to be effective in countering discriminatory attitudes and action."

kkozlowski@detroitnews.com