Just To Show That Some Judges Get It Right…A Campus Speech Decision From The Sixth Circuit

Judges have been taking an ethics  bashing here recently, so I feel it’s only fair to report that the three-member U.S. Court of Appeals for the Sixth Circuit, in a 2-to-1 decision, determined that the University of Michigan’ speech police, known there as its Bias Response Team, chilled free speech on campus and thus violates the First Amendment.  The Team’s function is to investigate incidents reported by students that are deemed racist, sexist, hostile to LGBTQ students or otherwise “offensive” to the right groups of people. For example, if I were a student there, the creation of such an entity would be profoundly offensive to me.  That presumably wouldn’t matter.

Speech First, a Washington, D.C.-based civil liberties watchdog, sued Michigan last year, seeking an injunction to halt the activities of the BRT. The lawsuit argued that the Bias Response Team is illegal because it could potentially deter students from making statements or engaging in conduct that some on campus might find offensive but are still protected under the First Amendment. The university’s definitions of “harassment” and “bullying” were ominously broad, though Michigan did refine them after the suit was filed. The looming presence of a speech and conduct response team that could be focused on a non-conforming student by a single complaint could reasonably be expected to make students hesitate to express themselves.

Ya think? Nonetheless, a U.S. District Court judge initially denied the injunction last year. [Note: Here I have deleted a series of comments about the agenda and political affiliation of this judge and those who reason like him. I am trying to practice more self-restraint, today anyway.]

Michigan lawyers had successfully defended the response team, in the lower court, because it could not discipline students. No, the group merely provided support for those on campus who felt wounded by what they felt were biased acts, the university argued in court filings. All the team would do is  reach out to an affected student to discuss a troubling incident and explore if the student wanted to file a formal complaint with the university or maybe even the campus police. That’s all! Completely harmless!

Oh, team members might ask a student who engaged in the potentially offensive speech to voluntarily meet with them, but they couldn’t force the student to do so. The university would just have a record that student hadn’t been cooperative. Who knows? It might make note of that somewhere. Files.

The team could also refer incidents, in addition to campus law enforcement, to the Office of Student Conflict Resolution or the mental health counseling center. “You’re not thinking right thoughts, Student X. It would be best if you were counseled regarding these unacceptable thoughts, to help purge them from your consciousnesses before someone gets hurt. Someone.”

Writing for the majority, Judge David McKeague said,

“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.”

Judge McKeague added that while the invitation to meet with team members contains no overt threats of punishment, “the referral power lurks in the background.” I’d say that’s obvious, but then, I am not a nascent Leftist totalitarian, like so many university officials. University spokeswoman Kim Broekhuizen insisted that Michigan will eventually prevail in court, and said, “U-M is deeply committed to the protection of free speech by students, faculty, and outside speakers alike, regardless of their views.”

This is deceit. The University of Michigan’s free speech policy is narrowly drawn to include only artistic expression, formal speeches, protests and demonstrations. Protections for informal speech and personal interactions on campus are notably absent. An official group charged with confronting students accused of engaging in “offensive” speech or conduct is res ipsa loquitur, a per se rejection of the principles of free speech, regardless of the lip service a policy document might employ.

I’m reminded of an anti-trust lawsuit where a group of competitors began a meeting with a statement on the record that they supported the anti-trust laws, and then proceeded to a discussion of plans to collaborate on wiping out the one competitor who wasn’t invited to the meeting. The court pointed out, with some amusement,that an official statement  you strongly opposed something didn’t matter if you proceeded to engage in that which you claimed to deplore.

The case will now be returned to the lower court, which will once again consider Speech First’s injunction request.


Source: Inside Higher Ed


6 thoughts on “Just To Show That Some Judges Get It Right…A Campus Speech Decision From The Sixth Circuit

  1. A bias response team is a group of paid witch hunters. That’s all it is, and that’s exactly what it’s intended to be.

    The BRT’s purpose is to root out and identify wrongthink and wrongspeak. Once identified, the unfortunate student’s name goes into the “system.” Nah, no witch hunting here.

  2. “This is deceit. The University of Michigan’s free speech policy is narrowly drawn to include only artistic expression, formal speeches, protests and demonstrations. Protections for informal speech and personal interactions on campus are notably absent. ”

    Isn’t that…. like… an order of magnitude worse? I mean, being able to wrongthink publicly is necessary too, but not being allowed to wrongthink privately? That’s some Big Brother level garbage.

    Worse, it’s almost certainly an obvious lie. I mean, what they’re saying is that you could, in theory, go out and proclaim publicly that anime cosplay isn’t blackface (which is making the rounds in Twitter because of Trudeau and the recent i-conflux of weebus and politics that I am finding amusing), and if that offends someone, well, UoM will go balls to the wall to bat for your first amendment rights, but if you happen to say that in a dorm room, and your cellmate is triggered; Well, it’s a referral to a mental health facility for you! That’s the plan? Forgive me, but I have my doubts.

  3. Well rendered Jack…..important topic that needs to be kept in the forefront of your blog. The comments were also interesting and skilful additions.

  4. Before you praise the judges, ask what the punishment was. The answer is that there wasn’t one. Would you praise a jury who convicted someone of murder yet again for a serial murder spree (after several convictions), but again gave them no jail time, no fine, no probation, and voided the conviction so they wouldn’t be a convicted felon and could still vote?

    Let’s look at the University of Michigan’s record on the subject of the 1st Amendment.

    •The University of Michigan’s speech code was ruled unconstitutional in the 1980’s.

    •Then, they instituted a ‘Provisional’ Speech Code. Each time that was brought to court, they argued that the lawsuit was invalid because the ‘Provisional’ Code is modified every few months, so the code at the time of the lawsuit (whichever lawsuit) was no longer in effect. This worked to get lawsuits dropped for several years.

    •Then, when the ‘Provisional’ thing no longer worked, they had a ‘Code of Nonacademic Conduct’. This was really genius, because the code was secret. No one was allowed to know what it was! If you were charged under it, you were brought to a hearing and told you had been charged. They would not tell you what you had done to be charged. They would not tell the presiding officer what you had done, they would just insist that you wouldn’t be charged if you weren’t guilty. Then you were punished, but not told what you were being punished for. It is hard to sue over something when you can’t get access to what it actually says. This was eventually struck down by the courts as well.

    •Then, they had more speech codes. Then, they were struck down and they wrote more speech codes…

    Lots of wrongdoing. Lots of court losses. No penalties.

    When I was a student, two people were publicly thrown out of school. Their RA had noticed that they had closed their door. She wondered why they would close it, so she went to the door and put her ear up to it so she could hear what they were discussing. They happened to be disagreeing with the school’s Affirmative Action policies! She reported this to the authorities and they were dismissed. This whole thing was reported approvingly by the student newspaper. The lawsuit went nowhere because ‘Provisional’. This is a state institution. What do you think I learned about ‘free speech’, my rights, and benevolent leftist governments?

    Read that history. In 30+ years, the students at the University of Michigan have had MAYBE 6 days of 1st Amendment Rights because of the courts’ actions. Do you think this gives me any confidence in these judges? You call that ‘Getting it Right’? If the court fined them $100 million for repeatedly infringing upon students 1st amendment rights, I might agree that they had gotten it right. As it is, all they did is tell the University “Go think up yet another way to deny students their 1st Amendment rights and we will see you in 5 years…again”.

    The courts have never wanted to fine an educational institution for (even blatantly and intentionally) stripping students of their 1st Amendment rights and that is why 20% or so of major state schools have instituted ‘free speech zones’ even thought they have been ruled unconstitutional repeatedly by federal courts. “Just do what you want to do and if we catch you, well…nothing will happen. nudge nudge wink wink” is the message the courts have repeatedly sent. What good are rights if they cannot be upheld, cannot be exercised, and there is no penalty for denying them?

      • I am just frustrated that it appears that courts can do nothing if a tyrannical government entity squashed your rights. It has been 30 years and this University continues to violate the courts orders on this. You would think there would be some legal recourse. It isn’t just this university, either.

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