National News

Justice Department Challenges University’s Rules on Bias

Posted June 11, 2018 10:11 p.m. EDT

The Trump administration challenged a state university’s long-standing rules against harassment, bullying and bias Monday, saying the rules discouraged students from expressing their views and left students open to the possibility of penalties for engaging in free speech.

The Justice Department made the claims against the University of Michigan, the state’s prestigious, historically liberal flagship campus in Ann Arbor, in a federal court brief that supported a student group, including students who said they were abused for wearing red “Make America Great Again” hats and for supporting President Donald Trump.

The student group, Speech First, which formed in February, sued the University of Michigan in May, accusing the school of violating its members’ constitutional right of free speech.

“Instead of protecting free speech, the university imposes a system of arbitrary censorship of, and punishment for, constitutionally protected speech,” John M. Gore, an acting assistant attorney general, wrote in the 25-page brief filed in Michigan’s Eastern District.

The Trump administration’s “statement of interest,” as its filing in the case is called, is being watched by other colleges and universities around the nation that have policies regarding speech on campus.

Rick Fitzgerald, a university spokesman, said Monday that the Department of Justice had “seriously misstated University of Michigan policy and painted a false portrait of speech on our campus.”

Free speech on campus is a delicate balancing act. On the one hand, universities like Michigan extol their commitment to freedom of expression, including unpopular views and dissent. On the other, they aim to maintain some expectations for student behavior, and to protect students from harmful speech or conduct.

Michigan defines harassment as conduct that “would cause a reasonable individual to suffer substantial emotional distress,” and it defines bullying as a written, verbal or physical act that “adversely affects the ability of another person to participate in or benefit from the university’s educational programs or activities.”

In the court filing, the Justice Department took particular aim at a university entity called a Bias Response Team, which fields complaints of bias associated with race, religion, sexual orientation, national origin, gender identity and other areas. Bias response teams have become standard on many campuses.

“It’s the chilling we’re primarily concerned with, students are afraid of being punished, so they just refrain from speaking altogether,” Nicole Neily, president of Speech First, said Monday.

The government faulted the University of Michigan for taking its definitions of bullying and harassment not just from state law but from sources like the dictionary, and for telling students, according to a university document, that “the most important indication of bias is your own feelings.”

Fitzgerald, the university spokesman, said the Justice Department had mischaracterized the role of its Bias Response Team, which, he said, “provides support to students on a voluntary basis; it does not investigate claims of bias or discipline students in any way.”

After the lawsuit was filed last month, the university clarified and standardized its definitions of bullying and harassment, deleting the dictionary definitions and relying on state law, Fitzgerald said.

The Speech First group’s suit describes a series of events at Michigan, including an incident in which Charles Murray, a conservative speaker invited to campus by Young Americans for Freedom, was “met with chants, music, intentionally annoying cellphone sounds, an overhead projector displaying an arrow pointing to him along with the words ‘white supremacist.'”

The suit also describes situations in which students say they were called racist or, in one case, shoved and spat on, for supporting Trump. It outlines the beliefs of three students, identified only as A, B and C, who say their unpopular views have made them afraid to speak out on campus. Among their views are that abortion after 12 weeks is murder; that the welfare system is being abused; that there should be a border wall; and that the wage gap between men and women is based on women’s choices, not discrimination.

None of the students are named, the lawsuit says, for fear they will be retaliated against.

The Michigan case is the fourth time the Trump administration has filed a statement of interest in a case related to free speech on campuses. The other cases involve challenges to free speech zones at Georgia Gwinnett College and Los Angeles Pierce College, and a challenge to the rules for speakers at the University of California, Berkeley.