Ken Blackwell is Senior Fellow for Human Rights and Constitutional Governance at Family Research Council. This article appeared on Townhall.com on November 7, 2019.
In a victory for free speech on college campuses, Speech First, a nonprofit focused on defending the exercise of First Amendment rights, has agreed to a settlement with the University of Michigan that protects students’ free-speech rights and resolves the issues prompting the lawsuit.
This landmark victory for free expression means the University of Michigan can no longer intentionally chill student speech while ignoring the guaranteed protections of the First Amendment. The settlement paves the way for college students who may have been too fearful or too intimidated to express their opinions to finally embrace their free-speech rights and engage in true academic inquiry and discussion.
The case began in May of last year when Speech First sued the University of Michigan in an effort to protect their members’ First Amendment rights. Speech First objected to campus-disciplinary code definitions of “harassment” and “bullying” because the definitions blatantly violated students’ free-speech rights.
Harassment was defined as “unwanted negative attention perceived as intimidating, demeaning, or bothersome to an individual." This definition does not include objective standards but relies on people’s subjective perceptions of others. It changes the right of free speech to the right of non-bothersome speech.
Speech First also opposed the administrators' decision to form a so-called “Bias Response Team.” The group was designed to investigate instances of bias and lead disciplinary proceedings against supposedly biased students. The group used nebulous definitions of “bias” and other terms, requested meetings with students accused of bias and even disciplined some students.
This process seemed intended to suppress speech classified as “objectionable” by the administration—more than 150 cases since April 2017—at the expense of students’ constitutionally guaranteed right to free speech.
Not long after Speech First sued, the university unilaterally abandoned its unconstitutional definitions and—while the case was pending—the university disbanded its so-called “Bias Response Team,” instead replacing it with a seemingly benign “Campus Climate Support” program.
Given these reforms, which should make it easier for students to voice their opinions in the classroom without fear of punishment, Speech First negotiated a settlement in which the university agrees to never return to the unconstitutional definitions of "bullying" and "harassing," and to never again implement its now-defunct “Bias Response Team.”
The landmark settlement with the university lays the groundwork for challenges to potential abuses down the road and gives protectors of the First Amendment a leg up when it comes to defending and preserving students’ right to free expression on college and university campuses nationwide. Schools around the country are now on notice that simply changing a policy during the course of litigation to try and moot their lawsuits will be viewed critically moving forward.
If a student is ever punished or threatened with expulsion for exercising his or her free-speech rights, this case can be used as the foundation for future lawsuits, all thanks to the Sept. 23 decision by the 6th U.S. Circuit Court of Appeals.
Administrators at Michigan are trying to spin the settlement to argue that nothing has changed. But based on how quickly the university accepted Speech First’s conditions, it hopefully has received the message that it cannot violate students’ free-speech rights.
During the settlement process, Amir Baghdadchi, a university spokesperson, said, "When it comes to a student's personal expression, we protect that speech.” I hope that is true from now on.
Free speech watchdogs, like Speech First, will monitor Michigan’s “Campus Climate Support” program and take action if it morphs into just another odious bias response team run amok. Rather than finding refuge in a “Campus Climate Support” group when you’re offended, Michigan students should engage with speech they find offensive.
This sentiment echoes that of former Supreme Court Justice Louis Brandeis who argues that the proper way to respond to bad ideas isn’t by chilling speech, but in rebutting the controversial idea with more speech—not less. “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by processes of education, the remedy to be applied is more speech, not enforced silence,” he writes in Whitney v. California.
Officials at the University of Michigan never should have adopted speech codes that enforced students’ silence. That the university so quickly surrendered their unconstitutional speech codes is an encouraging sign for students across the country. It’s a victory that paves the way for college students who may have been too fearful of expressing their opinions to finally embrace their free-speech rights and open themselves up to true and rigorous academic discourse.