Appeals court says UM speech code could 'chill' speech

Melissa Nann Burke
The Detroit News

A federal appeals court has ruled against the University of Michigan in a lawsuit challenging its speech code as vague and overly broad, concluding the school's policy could potentially "chill" speech. 

UM President Mark Schlissel

While the university's Bias Response Team lacks the power to punish students, judges said Monday that it still acts "by a way of implicit threat of punishment and intimidation to quell speech" on campus.

A panel of the U.S. Court of Appeals for the 6th Circuit split 2-1 to vacate a lower court's ruling and sent the case back for reconsideration of the plaintiff's motion to block the school from investigating or punishing students for violating its policy.

"The Response Team’s ability to make referrals — i.e., to inform (the Office of Student Conflict Resolution) or the police about reported conduct — is a real consequence that objectively chills speech," Judge David W. McKeague wrote in an opinion joined by Judge Deborah L. Cook. Both judges were appointed by President George W. Bush.

"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.

"The referral initiates the formal investigative process, which itself is chilling even if it does not result in a finding of responsibility or criminality."

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

Read more: Free speech policy stirs controversy at University of Michigan

The Trump administration also weighed in on the case, with the Justice Department  arguing in a statement of interest that the university — even if well-intentioned — "imposes a system of arbitrary censorship of, and punishment for, constitutionally protected speech." 

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

UM has 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.

"We are gratified that the court of appeals restored our case against the University of Michigan and ordered it to proceed in the district court," Nicole Neily, president of Speech First, said in a statement.

"We continue to believe that the University's policies, including the ones it tried to abandon after we filed suit, are blatant violations of the First Amendment. We look forward to vindicating our members' rights as this litigation progresses."

UM had asked the courts to dismiss the case as moot because the school revised the free speech policies and practices under challenge. It has called Speech First's claims “a false caricature” of its policies.

"The panel’s decision did not address the merits of the university's existing policies, and we are confident the university will prevail," UM spokeswoman Kim Broekhuizen said Tuesday.  

"UM is deeply committed to the protection of free speech by students, faculty and outside speakers alike, regardless of their views."  

The lawsuit comes at a time when students across the country are grappling with the issue of free speech on college campuses.

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. 

UM had argued that Speech First had 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.

In court records, UM said the Response Team provides support for those on campus who feel they had been the targets of biased incidents, and may invite the student alleged to be responsible for the offensive speech to meet. However, team members cannot compel the student to meet with them.

UM President Mark Schlissel has 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. 

The 6th Circuit said that UM voluntarily ending the "alleged illegal conduct" does not render the plaintiff's case moot. 

"The University has not affirmatively stated that it does not intend to reenact the

challenged definitions. The University cites University Vice President for Student Affairs Royster Harper’s testimony that the new definitions 'and no others’ will govern the initiation and conduct of disciplinary proceedings,” McKeague wrote. 

"All this statement stands for, however, is that the new definitions are what the University intends to use presently. It does not indicate any future intentions." 

The panel declined Speech First's request that the appeals court instruct the district judge to issue the preliminary injunction it seeks against UM, saying the lower court should consider the request. 

Judge Helene N. White, who was nominated by Bush, dissented from the majority, saying she would have affirmed the district court’s denying Speech First's motion for a preliminary injunction.

"The majority’s reliance on the ability of Response Team members to make referrals is unavailing," White wrote. 

"Because there is no evidence that a Response Team member has or would refer a 'bias incident' to the OSCR or police without that incident constituting a violation of the (university's) Statement or a crime, the Response Team itself poses no threat of a concrete harm."