While the University of Illinois is in federal court trying to fight off a lawsuit alleging that its “Bias Response Teams” violate student free-speech rights, a federal appeals court ruling involving the University of Michigan suggests the teams “act by way of implicit threat of punishment and intimidation to quell speech.”
In doing so, the 6th Circuit Court of Appeals reversed the decision by a trial court judge to dismiss the Michigan case and sent it back for further review. The lawsuit alleging widespread abridgment of free speech on campus was filed by Speech First, an organization that protects student rights.
Speech First filed a similar lawsuit against the UI last summer at the federal courthouse in Urbana.
The lawsuit against the UI is being heard in the 7th Circuit, which is headquartered in Chicago, while the lawsuit against Michigan is located in the 6th Circuit, headquartered in Cincinnati.
U.S. District Judge Linda Parker dismissed the Speech First lawsuit against Michigan because she concluded that the organization had no standing to sue and that the speech issue was moot because Michigan modified important definitions of “stalking” and “bullying” in its anti-harassment rules.
By a 2-1 margin, the appeals court said Speech First does have standing to sue because it has “associational” standing through its members on the Michigan campus.
Regarding the issue of mootness, the appeals court said Michigan’s decision to modify definitions of “harassment” and “bullying” after the lawsuit was filed are insufficient to ensure that dispute over the language “could not reasonably be expected to recur.”
Most of the court’s opinion, however, focused on the role of bias-response teams made up of university representatives, who investigate complaints received from students about other students’ conduct. The teams can “invite” students whose words or actions have drawn criticism to meet and file formal complaints that, if sustained, can result in punishments ranging from reprimand to expulsion.
The appeals court said the process reeks of intimidation, which could prompt students not to speak at all for fear of being targeted for punishment.
“... the very name ‘Bias Response Team’ suggests that the accused students’ actions have been prejudged to be biased," wrote Justice David McKeague. "The name is not ‘Alleged Bias Response Team’ or ‘Possible Bias Response Team.’ It is the ‘Bias Response Team.’ And as such, the name intimates that failure to meet could result in far-reaching consequences, including reputational harm or administrative action. Nobody would choose to be considered biased, and an individual could be forgiven for thinking that inquiries from and dealings with the Bias Response Team could have dramatic effects."
Michigan’s effort to identify and punish acts of bias on campus has drawn national attention because its written policy is so elastic.
Indeed, Michigan simplified it for students by stating that however they feel about whatever they hear can be grounds for filing a complaint because “the most important indication of bias is your own feelings.”
Speech First’s lawsuit complained that that standard — or lack of a standard — allows “the most sensitive student on campus (to dictate) the terms under which others may speak.”
The U.S. Justice Department has joined in the litigation, supporting Speech First’s request that the court block the Michigan policy.
Before the university modified its definitions of “stalking” and “bullying,” they included expansive language at odds with Michigan law. The university revised the definitions to meet statutory requirements and stated that neither cover “constitutionally protected activity.”
Speech First President Nicole Neily, a 2002 UI graduate, said she was “gratified” the lawsuit was reinstated, expressed continued objections to Michigan’s ”blatant violations of the First Amendment” and looks “forward to vindicating our members’ rights as this litigation progresses.”
Speech First’s lawsuit against the UI alleged that it wrongly allows “bias response teams” to punish students who express opinions other students do not share. Those opinions include expressions of support for former UI symbol Chief Illiniwek or the country of Israel and objections to benefits given to one group of students at the expense of another group of students.
For example, a student who complained on Facebook that “women are automatically admitted into engineering programs” was targeted.
Regarding the UI case, the opposing parties have been skirmishing over preliminary matters.
In mid-September, U.S. Judge Colin Bruce denied Speech First’s request for a preliminary injunction blocking the UI anti-bias policy. That decision is being appealed.
Jim Dey is a staff writer for The News-Gazette. His email is email@example.com.