University of Michigan Agrees to Roll Back Restrictions on Speech

University of Michigan Central Campus, Ann Arbor, MI. (public domain, Creative Commons Attribution-ShareAlike License via Wikimedia Commons)

To settle a civil rights lawsuit that was backed by the Trump administration, the University of Michigan has agreed to change politically correct policies that were alleged to have chilled students’ free speech on campus.

The settlement comes as conservatives in the United States are growing increasingly concerned about ideological intolerance in the nation’s institutions. They say universities, which used to be bastions of free speech, are now hotbeds of far-left orthodoxy that drown out opposing voices and stifle independent thought.

Even worse, when students come up against restrictive campus speech codes, they are forced to endure Kafkaesque tribunals that critics say deny even basic due process to accused individuals.

The university, which is based in Ann Arbor, was sued by Speech First, a Washington-based nonprofit that “through advocacy, litigation, and education” vows to “put colleges and universities on notice that shutting down unwanted speech will no longer be tolerated,” according to its website.

The case, cited as Speech First Inc. v. Schlissel, goes back to May 8, 2018, when the nonprofit filed a legal complaint in the U.S. District Court for the Eastern District of Michigan, citing the “elaborate investigatory and disciplinary apparatus” the university created “to suppress and punish speech other students deem ‘demeaning,’ ‘bothersome,’ or ‘hurtful,’” which it claimed violated students’ constitutional rights.

The court that first heard the case ruled that Speech First, which had sought an injunction against the school, had no standing to bring the action, but a panel of the 6th Circuit Court of Appeals reversed that ruling Sept. 23, returning the case to the lower court for further proceedings.

Instead of another hearing, both sides agreed to dismiss the case and cover their own legal costs. The university didn’t admit wrongdoing and no money changed hands. The settlement document was filed Oct. 28 with the lower court.

Speech First President Nicole Neily said she was pleased with the settlement, according to a report by MLive.

“This victory paves the way for college students who may have been too fearful or intimidated to express their opinions to finally embrace their free speech rights and engage in true academic discourse,” she said.

Long before that, to deal with alleged infractions of the university’s Statement of Student Rights and Responsibilities, the school set up something it called Bias Response Teams to investigate complaints.

The BRTs are “the equivalent of SWAT teams standing by to enforce campus speech and conduct codes,” according to William A. Jacobson of Legal Insurrection. Jacobson is a clinical professor of law at Cornell Law School.

“All of the problems we have documented with campus sexual assault kangaroo courts apply equally to BRTs—the teams enforce often vague standards highly dependent on how a complainant feels, there is an opaque process with little due process, and the results often track accepted campus political correctness rather than a search for the truth.”

The lawsuit stated that upwards of 150 reports of “expressions of bias” in posters, fliers, social media, whiteboards, and verbal comments had been probed by Bias Response Teams since April 2017.

University of Michigan students claimed that the disciplinary code and its enforcement apparatus chilled their speech, making them hesitant to speak openly about legitimate topics for debate such as gun rights, immigration policy, welfare systems, affirmative action, gender identity, and Title IX, a federal civil rights law that bans sex-based discrimination.

The university’s disciplinary code, according to the legal complaint, was overbroad and prohibited “harassment” and “bullying,” and provided for enhanced penalties when those actions were motivated by “bias,” which, as the school interprets those concepts, “can capture staggering amounts of protected speech and expression.”

Because the university defines “harassment” as “unwanted negative attention perceived as intimidating, demeaning, or bothersome to an individual,” students face tough penalties based on highly subjective standards, Speech First stated in the complaint.

“Under this regime, the most sensitive student on campus effectively dictates the terms under which others may speak,” according to the document.

The U.S. Department of Justice filed a statement of interest in the case last year, arguing the disciplinary code was “unconstitutional because it offers no clear, objective definitions of the violations,” and threatened to subject students to “individual education” or “restorative justice.” Campus policy encouraged students to report suspected instances of bias, advising them: “the most important indication of bias is your own feelings.”

As a result of the lawsuit, the Bias Response Teams have been replaced with something called Campus Climate Support, which the university says “is committed to providing support for those who may have been targets of or affected by campus climate concerns.” Such concerns “can include actions that discriminate, stereotype, exclude, harasses, or harm anyone in our community based on their identity (such as race, color, ethnicity, national origin, sex, gender identity or expression, sexual orientation, disability, age, or religion).”

Campus Climate Support wouldn’t contact students suspected of misconduct and isn’t a disciplinary body that can compel individuals to cooperate with it.

“The focus of this work is providing support, which ... could take different forms, including directing members of our community to existing resources or organizations,” MLive reported.