University of Michigan Can’t Duck Free Speech Suit, Sixth Circuit Rules

(CN) – Conservative students at the University of Michigan can continue their claim that the school’s anti-bullying team violates their right to free speech, the Sixth Circuit ruled Monday in a 2-1 decision.

Speech First Inc., which advocates college students’ rights, claimed that the Bias Response Team prevented students from talking freely about topics like illegal immigration and the Black Lives Matter movement.

The group asked the federal court in Eastern Michigan for an injunction that would stop the university or its Response Team from “taking any action to investigate, threaten or punish students” for bias-related incidents.

When such an incident occurs, the Response Team contacts the alleged offender, but it cannot force him or her to come in for a meeting.

The Response Team can refer the victim to police or counselors, but it cannot punish the offender.

The Potter Stewart U.S. Courthouse in Cincinnati, home of the Sixth Circuit Court of Appeals. (Carol M. Highsmith/Library of Congress)

For this reason, the district court ruled that the group lacked standing to sue. However, the Sixth Circuit reversed the decision, allowing Speech First to pursue its case on the merits.

“Speech First has standing to challenge the Response Team here because its members face an objective chill based on the functions of the Response Team,” Judge David McKeague wrote.

He added that “the Response Team acts by way of implicit threat of punishment and intimidation to quell speech.”

The judge noted that the team’s name itself carries a prejudicial tone.

“The name is not the ‘Alleged Bias Response Team’ or ‘Possible Bias Investigatory Team.’ It is the ‘Bias Response Team,’” McKeague wrote.

The judge also disagreed with the lower court’s opinion that the case was moot because the university had changed its definitions of “bullying” and “harassing” from dictionary definitions to those that align with state law.

“Significantly, the University continues to defend its use of the challenged definitions. Although not dispositive, the Supreme Court has found whether the government ‘vigorously defends the constitutionality of its … program’ important to the mootness inquiry,” McKeague wrote.

Judge Helene White dissented from McKeague and Judge Deborah Cook, stating that Speech First did not prove it was likely to succeed on the merits.

“Even if Response Team members did refer reported conduct to the (Office of Student Conflict Resolution) or police, any member of the University community was already able to do so,” she wrote.

White also asserted that the Response Team did not pose an implicit threat that declining a meeting would result in the case being referred.

“The record to date only reflects that one student has ever accepted the invitation to meet, strongly supporting an inference that students do not feel compelled to meet,” she wrote.

Nicole Neily, president of Speech First, said the group is “gratified that the court of appeals restored our case against the University of Michigan.”

“We continue to believe that the university’s policies, including the ones it tried to abandon after we filed suit, are blatant violations of the First Amendment. We look forward to vindicating our members’ rights as this litigation progresses,” Neily said in a statement.

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