The Department of Justice joined Speech First Monday in challenging free speech at the University of Michigan. In a 25-page statement of interest, the DOJ concludes the lawsuit is likely to succeed on the merits of the Bias Response Policy violating the First and 14th Amendments.
The DOJ’s statement of interest follows a May 8 lawsuit filed by Speech First, a national organization of students, citizens and alumni advocating free speech on college campuses. Speech First claims a bias response team that can mete out discipline and a vague speech code create a hazardous environment for free speech.
In an interview with Speech First President Nicole Neily in May, she said the organization is filing the injunction against the University based on three main factors.
“We have multiple members of the organization at the University,” Neily said. “The University of Michigan also has a combination of a very bad speech code that is very vague, a very active Bias Response Team that is very proud of its achievements because it keeps a log and we have numbers there, though not all were listed in the complaint. These were the three things we needed.”
“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,’” the statement reads. “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.”
Similarly, in the official statement from Speech First, Neilly argued the speech code has stifled the free speech of several members of her organization who attend the University.
“Speech First has brought this suit to ensure that its members and other students at the University will not face investigations or discipline for engaging in the open and vigorous exchange of ideas that is at the core of the First Amendment merely because a University official or another student finds their views ‘demeaning,’ ‘bothersome,’ ‘exclusionary,’ or ‘hurtful,’” Neilly writes.
Students claim in the suit as result of U-M practices they have been forced to refrain from speaking on topics like gun control, immigration, identity politics and abortion out of fear of being reported to the Bias Response Team. Of the students referenced in the lawsuit, none were named for fear of retaliation.
Grant Strobl, the national chairman of Young Americans for Freedom and U-M alum, says initiatives like the Bias Response Team restrict free speech at the University.
“University policies on free speech are pretty good," Strobl said. "However, a lot of initiatives like Expect Respect and the bias incident log are inconsistent with those values.”
Strobl has run into issues with initiatives like Expect Respect and the Bias Response Team. When the University chapter of Young Americans for Freedom symbolically built and tore down a Berlin Wall on Nov. 9, it was met with vandalism. According to Strobl, references to free speech were crossed off the wall and "Black Lives Matter" as well as "F*** white supremacy" was spray painted on the wall. Strobl said even after filing a bias report, the University did nothing to find the perpetrators.
“The system seems to be more for students on the left than the right," Strobl said.
Similarly, Dylan Berger, the president of the University’s chapter of College Republicans, explained the Bias Response Team makes many students feel unable to express themselves.
"The bias response team employed by the university has had a chilling effect on free speech," Berger wrote in an email interview. "Many conservatives on campus are apprehensive to give their opinion in fear of having the ‘bias response team’ sicked (sic) on them. This is plain wrong. We cannot live up to our title as the leaders and the best if all members of our community cannot freely express themselves. I’m grateful that the Justice Department is fighting to restore open discourse to this campus.”
Both the Speech First’s and the DOJ’s statement of interest focuses on the University’s ability to discipline individuals based on another student’s “feelings” or subjective understanding of a bias incident. The statement goes on to attack the University’s speech code as overbroad and vague.
“A University community undoubtedly has an interest in combatting harm to members of its community, in instilling respect for all persons, and in eradicating prejudice from its campus,” the DOJ statement reads. “The rub here, however, is that the Bias Response Policy is wholly subjective: it authorizes disciplinary consequences based on the ‘most important indication’ of the listener’s ‘own feelings,’ and thus can sweep in all manner of constitutionally protected speech.”
However, the University argues the lawsuit has mischaracterized not only its programs like the bias response team, but also the U-M atmosphere of free speech.
In a statement released on behalf of the University in The University Record, University spokesman Rick Fitzgerald states U-M policies have been misrepresented.
“In Wednesday's court filing, the University argues that the lawsuit has mischaracterized university policies and programs and ‘how they have been applied and has painted a picture of the university that does not reflect the true vibrancy of debate and discussion on campus,’” the U-M statement reads.
The University also has a policy on Freedom of Speech and Artistic Expression which highlights the importance of diverse ideas at U-M.
"Expression of diverse points is of the highest importance, not only for those who espouse a cause or position and then defend it, but also for those who hear and pass judgment on that defense," the policy reads. "The belief that an opinion is pernicious, false, or in any other way detestable cannot be grounds for its suppression.”
When reached for comment, University spokeswoman Kim Broekhuizen referenced a statement released Monday in which the University attempted to clarify the definitions of harassment and bullying presented in the speech code. The statement was sent to colleagues in the Division of Student Life and to student leaders as well as posted on The University Record website.
“The revised definitions more precisely and accurately reflect the commitment to freedom of expression that has always been expressed in the statement itself,” E. Royster Harper, vice president of student life, writes.
Ultimately, the University attempted to make the definitions clearer by eliminating the dictionary definitions of harassment and bullying and using only the definitions from Michigan state law.
However, on the Bias Response Team website, the terminology that has been constantly referenced in attacks against the speech code has not changed. The website states one can report a bias incident based on “feelings.”
“Bias comes in many forms. It can be a hurtful action based on who someone is as a person,” the website states. “The most important indication of bias is your own feelings.”
This is not the first time the University’s speech policies and attitude toward freedom of speech has been called into question. In 2017, hundreds of students flooded into the Michigan League to voice displeasure with the Michigan Political Union’s decision to debate the Black Lives Matter movement as harmful to racial relations, causing many people outside of the University to question whether unpopular voices or perspectives can be heard at the University. Similarly, when Charles Murray, author of "The Bell Curve,” a book that argues for the concept of racial differences in intelligence, spoke at the University, several students attempted to shut down the event.
The University has experienced controversy regarding free speech on campus as far back as 1989. A 1989 case, Doe v. University of Michigan, determined the University's 1988 hate speech law violated the constitutional right to free speech.
Neily says the DOJ's support is only the beginning.
"I was surprised when they showed interest," Neily said. "We had no idea it was coming. It’s gratifying that they have shown interest in it but the case is far from over. It’s not over by any stretch."
This is the fourth campus free speech case for which the DOJ has expressed interest. In the case of Speech First, Inc., v. Schlissel, the University is expected to respond by June 15.