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