Federal Appeals Court Doesn’t Buy U-M’s Story On Speech-Chilling Bias Response Team

A federal appeals court recently held that a collection of officials at the University of Michigan called the “Bias Response Team,” may be stifling free speech. The team is comprised of administrators and law enforcement personnel employed by the school and "is tasked with investigating and punishing" students accused of “bias-related misconduct," according to the plaintiff in the case.

Speech First, a nonprofit, First Amendment watchdog group, sued U-M in May 2018, alleging that the university “created an elaborate investigatory and disciplinary apparatus to suppress and punish speech other students deem ‘demeaning,’ ‘bothersome,’ or ‘hurtful’.” Among other defects, the complaint noted, this caused the university to “capture staggering amounts of protected speech and expression.”

Speech First argues that the team is illegal because of the chilling effect it has on free speech when students fear violating highly subjective rules and standards of what words or actions another individual may regard as “offensive.” According to the complaint, “Under this regime, the most sensitive student on campus effectively dictates the terms under which others may speak.”

The university’s response was to claim that team members could ask offending students to meet with them to discuss “potentially offensive speech,” but they could not force them to do so, according to a report published by Inside Higher Ed.

Speech First argued that because team members are authorized to refer incidents to campus law enforcement, the university’s Office of Student Conflict Resolution, or its mental health counseling center, they do in fact act in a potentially disciplinary capacity.

After the suit was filed, the university changed the wording of its policy in what it called an effort to clarify and standardize the definitions of bullying and harassing, both of which were central to the lawsuit.

U.S. District Court Judge Linda V. Parker, in August 2018, refused to issue an injunction halting any university disciplinary actions under a bullying and harassment policy, according to an MLive report. Parker ruled that Speech First lacks standing to sue because the response team was purely supportive and educational, not a disciplinary body.

Additionally, the district court ruled that the university had since changed the language of its policy, making those aspects of the lawsuit moot.

Speech First appealed the ruling to the U.S. Court of Appeals for the Sixth Circuit, and on Sept. 23, this court held that the organization does, in fact, have standing to sue because its student members at the university “face an objective chill based on the functions of the Response Team.”

“By instituting a mechanism that provides for referrals, even where the reporting student does not wish the matter to be referred, the University can subject individuals to consequences that they otherwise would not face,” the appeals court wrote. “Additionally, the invitation from the Response Team to meet could carry an implicit threat of consequence should a student decline the invitation.”

“Although there is no indication that the invitation to meet contains overt threats, the referral power lurks in the background of the invitation. It is possible that, for example, a student who knows that reported conduct might be referred to police or OSCR could understand the invitation to carry the threat: ‘meet or we will refer your case,’” the appeals court said.

“Additionally, the very name ‘Bias Response Team’ suggests that the accused student’s actions have been prejudged to be biased,” the court continued. “The name is not the ‘Alleged Bias Response Team’ or ‘Possible Bias Investigatory Team.’”

The appellate court also disagreed with the lower court’s determination that Speech First’s claims were moot (no longer relevant). The “voluntary cessation of the alleged illegal conduct does not, as a general rule, moot a case,” it wrote. The appellate court also said that just because university had rushed through changes to its policy in the face of a lawsuit, there was no guarantee that the wrongful conduct would not recur.

“The University has not, however, pointed to any evidence suggesting that it would have to go through the same process or some other formal process to change the definitions again” the court wrote in its decision. Also, “The University has not affirmatively stated that it does not intend to reenact the challenged definitions.”

The appeals court’s opinion said that the timing of the university’s policy revision “raises suspicions” and actually “increases the university’s burden to prove” whether its stated intentions of protecting free speech are genuine.

The appeal court panel stopped short of ordering the district court to issue the injunction. Instead, it sent the case back to the lower court to reconsider its merits.

The University of Michigan said it would not comment due to pending litigation. Speech First did not respond to a Michigan Capitol Confidential invitation to comment.