CHICAGO (CN) – An attorney for a First Amendment group argued before a Seventh Circuit panel Thursday that the University of Illinois is stifling free speech on its campus through a set of restrictive policies and investigation procedures.
Speech First Inc., a Washington, D.C.-based organization fighting First Amendment roadblocks at colleges nationwide, sued the university last May in the Central District of Illinois over three policies it claims have a chilling effect on students at the Urbana-Champaign campus.
Speech First says all three policies limit what students can say or make them fear saying something that will be investigated by the university’s Bias Assessment Response Team, or BART, in violation of the First and 14th Amendments.
The group cites examples of the school targeting students wanting to organize a “build-the-wall” event, a group trying to reinstate the school’s Native American mascot and a student supporting Israel as being targets,
“The University of Illinois at Urbana-Champaign and its officials have created a series of rules and regulations—along with an elaborate investigative and enforcement regime—designed to restrain, deter, suppress, and punish speech concerning political and social issues of public concern,” the complaint states.
Speech First appealed Obama-appointed U.S. District Judge Colin S. Bruce’s denial of a preliminary injunction that would have prevented the university from enforcing its policies while the case was pending.
Arguments in front of the Seventh Circuit panel Thursday morning centered on whether being investigated by BART was chilling to students’ speech. The panel was comprised of U.S. Circuit Judges Michael Scudder Jr., Michael Brennan and Amy St. Eve, all three of whom were appointed by President Donald Trump.
“If a student receives an email from BART, is it more or less likely that student is going to make the same statements in the future?” asked attorney Michael Connolly of Consovoy & McCarthy, represented Speech First.
Connolly cited examples such as supporting a border wall and bringing up gender identity as a choice in class as speech that was reported to the investigative body.
“They know that this exact speech will be reported to BART and BART will respond,” he said of university officials.
Adding that the BART team includes a police officer, and that BART could report students to campus police, Connolly said the message the university is sending to students is “we are watching you and you better watch what you say.”
The University of Illinois’ attorney, Ishan Bhabha of Jenner & Block, disagreed. He said students are not required to meet with BART if they are contacted, and most either don’t respond to its email or decline the meeting instead of being coerced into a meeting or staying quiet.
“There isn’t a shred of evidence that anything like that has ever happened at U of I,” Bhabha said.
It its brief to the Chicago-based appeals court, the school said “expression is fully protected by the university, which has never punished, or in any way discouraged, students based on the expression of controversial or unpopular viewpoints. Indeed, in recent years, the university has been criticized for refusing to censor such viewpoints.”
Bhabha echoed that point in court Thursday.
“They have no proof at all that anyone has been told not to speak,” the attorney said. “They haven’t submitted any fact at all…nothing to suggest speech is chilled.”
Judge St. Eve seemed to agree with the argument.
“Here we have anonymous students not giving specifics,” she told Connolly. “You have to put forth evidence…what is your evidence from the students?”
Judge Scudder echoed the sentiment, saying Speech First had no declaration from students claiming that the picture of free speech on campus the university painted “emphatically does not reflect the reality on the ground. That lack of evidence from the members concerns me.”
“From our standpoint, all we need to say is we have students who are afraid of speaking,” Connolly responded.
It is unclear when the panel will issue a ruling either upholding the denial of an injunction or ordering a stop to the university policies while the case plays out in court.