Michigan’s Bias-Response Team Uses Indirect Threats to Chill Free Speech, Appeals Court Finds

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A team at the University of Michigan at Ann Arbor that helps students who feel they’ve been harassed or bullied uses “implicit threat of punishment and intimidation to quell speech,” a federal appeals court ruled this week.

The court vacated a federal district court’s ruling that had supported Michigan’s right to refer students to its bias-response team. It bounced the case back to the U.S. District Court that had earlier agreed with the university that the team is not a disciplinary body and that its role is to support and educate students who agree to participate.

Speech First, a membership association in Washington, D.C., that advocates for free speech on college campuses, sued the university last year, seeking to force it to discontinue its bias-response team. It also challenged the university’s student-disciplinary code, which prohibits harassment and bullying in ways the group finds overly broad and potentially discriminatory.

“As used, these concepts capture staggering amounts of protected speech and expression, given that Michigan defines harassment as ‘unwanted negative attention perceived as intimidating, demeaning, or bothersome to an individual,’” Speech First wrote in announcing the lawsuit.

Shortly after the lawsuit was filed, Michigan changed the definitions of the terms “bullying” and “harassment” to match Michigan law, which Speech First does not object to. The new definition for “harassment,” for instance, is “conduct directed toward a person that includes repeated or continuing unconsented contact that would cause a reasonable individual to suffer substantial emotional distress and that actually causes the person to suffer substantial emotional distress. Harassing does not include constitutionally protected activity or conduct that serves a legitimate purpose.”

The lawsuit accelerated a review of the university’s speech policies that was already underway to ensure they were consistent with the First Amendment, the university said.

The appeals-court decision said that there is no guarantee that the university won’t revert to its previous definitions of bias and harassment. It also said the timing of the definition changes — after the lawsuit was filed — “raises suspicions that its cessation is not genuine.”

Nicole Neily, president of Speech First, issued a written statement saying she was gratified by the appeals court’s decision to send the case back for another review. “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,” she wrote.

A university spokeswoman, Kim Broekhuizen, wrote in an email that this week’s decision did not address the merits of the university’s existing policies, and that the university is confident it will prevail.

Michigan “is deeply committed to the protection of free speech by students, faculty, and outside speakers alike, regardless of their views,” she added.

The university has decried what it calls Speech First’s “false caricature” of its free-speech policies and practices. And it criticized the Trump administration for mischaracterizing its bias-response team as a disciplinary body in a statement of interest the administration filed in the case.

But in its majority opinion, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit said that the possibility of punishment “lurks in the background” when someone is invited to meet with the response team.

“Even if an official lacks actual power to punish, the threat of punishment from a public official who appears to have punitive authority can be enough to produce an objective chill,” the ruling states.

Speech First said that the university’s bias-response team had investigated more than 150 reports of alleged “expressions of bias” through posters, fliers, social media, whiteboards, verbal comments, and classroom behavior since April 2017. It argued that the university’s standards for speech and bias reporting are unclear and risk being applied in an arbitrary or discriminatory manner.

“A student whose speech is seen by another student as hurtful to his or her feelings may receive a knock on the door from a team of school officials threatening to refer the student for discipline unless he or she submits to ‘restorative justice,’ ‘individualized education,’ or ‘unconscious bias training,’” the group argued.

Speech First members enrolled at Michigan steer clear of discussing topics including immigration, identity politics, and abortion for fear they might be anonymously reported to the bias team for “offensive, biased, and/or hateful” speech, the group wrote.

A lawyer for the Foundation for Individual Rights in Education, an advocacy group that defends free speech on college campuses, said colleges in the Sixth Circuit — Kentucky, Michigan, Ohio, and Tennessee — “will have to give very careful thought to how they use bias-response teams going forward; having any punitive or coercive elements to the program — or the appearance of them — may open a school up to a lawsuit,” Marieke Tuthill Beck-Coon, director of litigation, wrote in an email.

“The majority also refused to throw Speech First’s claims out as moot where the school dropped its overbroad policies and promised to behave in the future but still defended the old policies in court,” she added.

Ryan A. Miller, an assistant professor of higher education at the University of North Carolina at Charlotte who has studied and written about bias-response teams, said such teams take on multiple roles on campus, helping assess the campus climate, referring students to support programs, and educating the campus about free-speech issues.

“Some incidents rise to the level of criminal acts and need to be referred to the appropriate authorities, but for those that don’t, team members might refer students to support resources they weren’t aware were available,” he said. They are acutely aware, he said, of the need to protect free speech. If a student reports an incident of bias, “these teams help students who are offended use their voices to speak out in response,” perhaps by writing a letter to the campus newspaper, joining an organization, or organizing a campus rally.

Hundreds of campuses have bias-response teams, and those numbers appear to be growing, Miller said. A few, though, have changed their policies or disbanded in response to criticism that they inhibit free speech. In 2016 a complaint to a bias-response team at the University of Northern Colorado resulted in an instructor’s being asked not to discuss sensitive issues like transgender rights in his classroom. The university disbanded the team amid the ensuing controversy.

“Unfortunately, bias-response teams have come to represent lots of pre-existing stereotypes about higher education,” Miller said, as bastions of liberal indoctrination where conservative views are squelched.

As a result of the increased scrutiny, he said, “they have become incredibly sensitive to and aware of the needs of accommodating free speech.”

Katherine Mangan writes about community colleges, completion efforts, and job training, as well as other topics in daily news. Follow her on Twitter @KatherineMangan, or email her at katherine.mangan@chronicle.com.