Speech First, Inc. v. SCHLISSEL et al

Filing 14

STATEMENT of Interest In Support of Plaintiff's Motion for Preliminary Injunction by United States (Caplan, Peter)

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SPEECH FIRST, INC.,
Plaintiff,
v.

MARK SCHLISSEL, et al.,
Defendants.

)
)
)
)
) Civil Action No.
) 2:18-cv-11451-LVP-EAS
)
)
)
)

UNITED STATES’ STATEMENT OF INTEREST IN SUPPORT OF
PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS
PAGE
INTEREST OF THE UNITED STATES…………………………………………. 4
BACKGROUND...………………….........................................................…….…. 6
ARGUMENT……………………………………………………………….……. 11
I.

BY THEIR TERMS, THE UNIVERSITY’S PROHIBITIONS ON
“HARASSING,” “BULLYING,” “BIAS-RELATED MISCONDUCT,”
AND “BIAS INCIDENTS” VIOLATE THE FIRST
AMENDMENT ........................................................................................... 13
A. The Statement’s Bans On “Harassing,” “Bullying,” And “BiasMotivated Misconduct” Are Overbroad And Void For Vagueness... 15
B. The Bias Response Policy Is Unconstitutionally Overbroad
And Void For Vagueness................................................................... 22

CONCLUSION...................................................................................................... 25

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TABLE OF AUTHORITIES
CASES:

PAGE

Baggett v. Bullitt, 377 U.S. 360 (1964) .............................................................. 3, 21
Broadrick v. Oklahoma, 413 U.S. 601 (1973) .............................................. 3, 14, 21
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) ..............................................12
Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) ..............................11
Dambrot v. Central Mich. Univ., 55 F.3d 1177 (6th Cir. 1995) ...................... passim
Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999) ................................ 12, 16
DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008)................. 16, 18, 19, 25
Doe v. Univ. of Mich., 721 F. Supp. 852 (E.D. Mich. 1989) ...................... 13, 18, 19
Forsyth Cty. v. Nationalist Movement, 505 U.S. 123 (1992) .......................... passim
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) ...............................................16
Keyishian v. Bd. of Regents of the Univ. of the State of N.Y.,
385 U.S. 589 (1967) ...............................................................................................5
Leonardson v. City of East Lansing, 896 F.2d 190 (6th Cir. 1990) ................ passim
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n,
No. 16-111, Slip Op. (U.S. June 4, 2018) ..............................................................4
McCauley v. Univ. of the Virgin Islands, 618 F.3d 232 (3d Cir. 2010) ........... 23, 24
NAACP v. Button, 371 U.S. 415 (1933)...................................................................14
Niemotko v. Maryland, 340 U.S. 268 (1951) ...................................................... 3, 21
R.A.V. v. City of St Paul, 505 U.S. 377 (1992) ................................................. 12, 20

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CASES (continued):

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PAGE

Saxe v. State College Area Sch. Dist., 240 F.3d 200 (3d Cir. 2001) .... 11, 12, 17, 20
Shelton v. Tucker, 364 U.S. 479 (1960) .....................................................................5
Street v. New York, 394 U.S. 576 (1969) .......................................................... 12, 20
Sweezy v. State of New Hampshire by Wyman, 354 U.S. 234 (1957) .......................2
Texas v. Johnson, 491 U.S. 397 (1989) ........................................................ 3, 11, 20
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) ........... 6, 12, 20
Virginia v. Black, 538 U.S. 343 (2003) ...................................................................12
Widmar v. Vincent, 454 U.S. 263 (1981) ...................................................................4
Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008) .........................................11
STATUTES:

PAGE

18 U.S.C. § 249 ........................................................................................................12
20 U.S.C. § 1011a(a)(2) .............................................................................................2
28 U.S.C. § 517 ..........................................................................................................1
42 U.S.C. § 1681(a) ...................................................................................................5
42 U.S.C. § 2000c-6 ...................................................................................................5
42 U.S.C. § 2000d ......................................................................................................5
42 U.S.C. § 2000h-2...................................................................................................5
42 U.S.C. §§ 12132-12133 ........................................................................................5
OTHER AUTHORITIES:

PAGE

Virginia Resolutions (Dec. 21, 1798), in 5 THE FOUNDERS’ CONSTITUTION, 135,
136 (Philip B. Kurland & Ralph Lerner, eds., 1987) .............................................4
iii

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The University of Michigan (“University”) proclaims on its website that
“[f]reedom of speech is a bedrock principle of [its] community and essential to [its]
core educational mission as a university.”1 Unfortunately, the University is failing
to live up to that laudable principle. Instead of protecting free speech, the University
imposes a system of arbitrary censorship of, and punishment for, constitutionally
protected speech. The University’s policies prohibit speech that any listener finds
“bothersome” or “hurtful”—an overbroad, vague, and subjective standard that is a
paradigmatic example of the chilling of free expression prohibited by the First
Amendment. Universities have a crucial legal obligation to protect students from
harassment and harm, and wide latitude to promote tolerance and respectful dialogue
on their campuses. But state-run institutions like the University also must uphold
the bedrock guarantees enshrined in the First Amendment.

The University’s

policies, even if well-intentioned, fail in this regard—they violate the Constitution’s
free speech guarantee and should be enjoined.
The United States respectfully submits this Statement of Interest under 28
U.S.C. § 517, which authorizes the Attorney General “to attend to the interests of
the United States in a suit pending in a court of the United States.” The United States
is resolutely committed to protecting First Amendment freedoms and to ensuring, as

1

Free Speech on Campus, available at
https://publicaffairs.vpcomm.umich.edu/free-speech-on-campus/ (last viewed June
8, 2018).
1

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Congress has directed, that public “institution[s] of higher education . . . facilitate
the free and open exchange of ideas.” 20 U.S.C. § 1011a(a)(2). In the United States’
view, Plaintiff Speech First, Inc., has established that it is likely to succeed on the
merits of its claim that the University of Michigan’s Statement of Student Rights and
Responsibilities

(“Statement”)

and

Bias

Response

Policy

are

facially

unconstitutional under the First and Fourteenth Amendments.
“The essentiality of freedom in the community of American universities is
almost self-evident.” Sweezy v. State of New Hampshire by Wyman, 354 U.S. 234,
250 (1957). “Teachers and students must always remain free to inquire, to study and
to evaluate, to gain new maturity and understanding; otherwise our civilization will
stagnate and die.” Id. Unfortunately, the University’s Statement and Bias Response
Policy are eroding that fundamental freedom and chilling the very free and open
exchange of ideas that should define American university life for faculty and
students alike.
In particular, the University’s policies authorize University officials to
dispense disciplinary consequences against a speaker who engages in
constitutionally protected speech based on nothing more than a listener’s “feelings”
that the speech was “hurtful” or “bothersome.” The University’s policies thus do
precisely what the First Amendment forbids: they ban a broad swath of core
protected speech based solely on “[l]isteners’ reaction,” Forsyth Cty. v. Nationalist
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Movement, 505 U.S. 123, 134 (1992), that the speech is somehow “offensive or
disagreeable,” Texas v. Johnson, 491 U.S. 397, 414 (1989).
The University’s violation of the First Amendment does not end there. The
University has also declined to bind itself to any definitions for key terms in the
Statement, let alone “narrowly drawn, reasonable, and definite standards for
[University] officials to follow” in enforcing it. Niemotko v. Maryland, 340 U.S.
268, 271 (1951). Instead, the University has identified only “example” definitions
that University officials may or may not adhere to in applying the Statement’s
proscriptions on and punishments of speech. Accordingly, individuals “of common
intelligence must necessarily guess at” the parameters of the Statement’s speech
prohibitions, Broadrick v. Oklahoma, 413 U.S. 601, 607 (1973), and are being forced
to limit their speech and “‘steer far wider of the unlawful zone,’ than if the
boundaries of the forbidden areas were clearly marked,” Baggett v. Bullitt, 377 U.S.
360, 372 (1964). And members of the University community engage in such speech
activities at the peril of potentially “arbitrary, discriminatory, and overzealous
enforcement” by University officials, who may apply any definition or no definition
at all to the Statement’s key terms—or even different definitions across cases based
on their own personal approval or disapproval of the challenged speech. Leonardson
v. City of East Lansing, 896 F.2d 190, 196 (6th Cir. 1990) (internal quotation marks
omitted). But as the Supreme Court reaffirmed just last week, “it is not, as the Court
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has repeatedly held, the role of the State or its officials to prescribe what shall be
offensive.” Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, No. 16111, Slip Op. at 16 (U.S. June 4, 2018).
The First Amendment demands more.

The Court should apply the

Constitution’s guarantee of free and open discourse on public campuses and hold
that the challenged portions of the Statement and the Bias Response Policy are
unconstitutional.
INTEREST OF THE UNITED STATES
The United States has an interest in protecting the individual rights guaranteed
by the First Amendment. The right to free speech lies at the heart of a free society
and is an “effectual guardian of every other right.” Virginia Resolutions (Dec. 21,
1798), in 5 THE FOUNDERS’ CONSTITUTION, 135, 136 (Philip B. Kurland & Ralph
Lerner, eds., 1987). State-run colleges and universities are no exception from this
rule because “the campus of a public university, at least for its students, possesses
many of the characteristics of a public forum.” Widmar v. Vincent, 454 U.S. 263,
267 n.5 (1981). Thus, public universities have “an obligation to justify [their]
discriminations and exclusions under applicable constitutional norms.” Id. at 267.
The United States has a significant interest in the vigilant protection of
constitutional freedoms in institutions of higher learning. In recent years, many
institutions of higher education have failed to uphold these freedoms, and free
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speech has come under attack on campuses across the country. Such failure is of
grave concern because freedom of expression is “vital” on campuses, Shelton v.
Tucker, 364 U.S. 479, 487 (1960), which are “peculiarly the ‘marketplace of ideas,’”
Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 603
(1967).
The United States also has a significant interest in ensuring that colleges and
universities, including recipients of federal funds, do not discriminate in their
educational programs. The Attorney General is charged with enforcing laws to
address such discrimination—including a university’s failure to address actionable
harassment that creates a hostile environment based on race, color, national origin,
sex, religion, or disability. See, e.g., 42 U.S.C. § 2000d; 42 U.S.C. § 2000h-2; 42
U.S.C. § 2000c-6; 42 U.S.C. § 1681(a); 42 U.S.C. §§ 12132-12133. Universities
therefore are obligated to provide non-discriminatory educational environments to
their students while also protecting First Amendment freedoms that are the hallmark
of our public institutions of higher learning.
It is in the interest of the United States to lend its voice to enforce First
Amendment rights on campuses because “‘[t]he Nation’s future depends upon
leaders trained through wide exposure to that robust exchange of ideas which
discovers truth ‘out of a multitude of tongues, (rather) than through any kind of
authoritative selection.’” Keyishian, 385 U.S. at 603. “[O]ur history says that it is
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this sort of hazardous freedom—this kind of openness—that is the basis of our
national strength and of the independence and vigor of Americans who grow up and
live in this relatively permissive, often disputatious, society.” Tinker v. Des Moines
Indep. Cmty. Sch. Dist., 393 U.S. 503, 508-09 (1969).
BACKGROUND
The University’s Statement lays out “the rights and responsibilities of
membership in the University’s academic and social community.” Doc. 4-2, Ex. A,
at 1. The Statement “describes possible behaviors which are inconsistent with the
values of the University; it outlines procedures to respond to such behaviors; and it
suggests possible sanctions/interventions which are intended to educate and to
safeguard members of the University community.” Doc. 4-2, Ex. A, at 1. The
Statement directs that various “sanctions/interventions may be recommended” for
violations, including “Formal Reprimand,” “Disciplinary Probation,” “Restitution,”
“Restriction from Employment at the University,” “Class/Workshop Attendance,”
“University Housing Transfer or Removal,” “Suspension,” and “Expulsion.” Doc.
4-2, Ex. A, at 9-10.
Section IV of the Statement, titled “Violations,” identifies “behaviors” that
“contradict the values of the University community and are subject to action under
the Statement.” Doc. 4-2, Ex. A, at 3. One of those “behaviors” is “[h]arassing or

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bullying another person—physically, verbally, or through other means.” Doc. 4-2,
Ex. A, at 3.
The Statement does not define “[t]he terms associated with the Statement,”
including “harassing” or “bullying.” Doc. 4-2, Ex. B, at 1, 6-7. Instead, the
Statement links to a smattering of definitions—from such disparate sources as the
Merriam-Webster Dictionary, other University policies, and Michigan state law—
“as examples of various interpretations that exist for terms used in the Statement.”
Doc. 4-2, Ex. B, at 1.

Those definitions identify four “interpretations” of

“harassing,” including one two-part alternative definition. Doc. 4-2, Ex. B, at 6-7.
Those “example” definitions include:
 Merriam-Webster Dictionary: Harassing: (1) to annoy persistently (2) to
create an unpleasant or hostile situation for, especially by uninvited and
unwelcome verbal or physical conduct.
 University Policies (Expect Respect Initiative): Harassment: unwanted
negative attention perceived as intimidating, demanding, or bothersome to
an individual.
 University Policies: Discriminatory harassment: Verbal or physical
conduct by a member of the faculty or staff that is based upon race, color,
creed, religion, national origin, sex, sexual orientation, ancestry, age,
marital status, handicap or Vietnam-era veteran status.
 Michigan State Law: Harassment: means conduct directed toward a victim
that includes, but is not limited to, repeated or continuing unconsented
contact that would cause a reasonable individual to suffer emotional
distress and that actually causes the victim to suffer emotional distress.
Harassment does not include constitutionally protected activity or conduct
that serves a legitimate purpose.
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The Statement also links to two “example” definitions of “bullying.” Doc. 42, Ex. B, at 1. One of those example definitions is a four-part alternative definition
from Michigan state law. Doc. 4-2, Ex. B, at 6. The other is a five-part alternative
definition from the Merriam-Webster Dictionary that defines “bullying,” in part, as
(1) “to frighten, hurt, or threaten (a smaller or weaker person)” or (2) “to treat
abusively.” Doc. 4-2, Ex. B, at 6.
The University has announced new amendments to the Statement effective
July 1, 2018. Doc. 4-2, Ex. K, at 1. Those amendments add “bias-motivated
misconduct” as “a separate violation of the University community’s values.” Doc.
4-2, Ex. K, at 1. The “misconduct” referred to in “bias-motivated misconduct” is a
violation of the Statement, such as “harassing” or “bullying.” Doc. 4-2, Ex. K, at 2.
“Bias-motivated” encompasses “behavior motivated on the basis of any person’s
identity as protected by the University of Michigan’s Nondiscrimination Policy
(race, color, national origin, age, marital status, sex, sexual orientation, gender
identity, gender expression, disability, religion, weight, or veteran status).” Doc. 42, Ex. K, at 1-2. The amendments provide that “[s]anctions” for violations of the
Statement—including “harassing” and “bullying”—“may be enhanced in instances
of bias-motivated misconduct.” Doc. 4-2, Ex. K, at 2. Thus, under the amendments,
a student who engages in a single episode of constitutionally protected speech could

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be sanctioned once for “harassing” or “bullying” and again for “bias-motivated
misconduct.” Doc. 4-2, Ex. K, at 1-2.
The University also has created a mechanism (“Bias Response Policy”) to
address “bias incidents.” Doc. 4-2, Ex. F, at 1. The Bias Response Policy defines
“bias incident” to encompass “non-criminal activities that harm another” based on
their identity, Doc. 4-2, Ex. H, at 4, and “conduct that discriminates, stereotypes,
excludes, harasses, or harms anyone in our community based on their identity (such
as race, color, ethnicity, national origin, sex, gender identity or expression, sexual
orientation, disability, age or religion),” Doc. 4-2, Ex. F, at 1. According to the
University’s Expect Respect Initiative, “bias” is “a pre-formed negative opinion or
attitude toward a group of persons who possess common physical characteristics,
such as skin color; or cultural experiences, such as religion or national origin.” Doc.
4-2, Ex. E, at 1. The Bias Response Policy states that “[b]ias often stems from fear,
misunderstanding, hatred, and stereotypes that may be intentional or unintentional.”
Doc. 4-2, Ex. F, at 1. It emphasizes that “[b]ias comes in many forms” and “can be
hurtful action based on who someone is as a person,” and it tells students that “[t]he
most important indication of bias is your own feelings.” Doc. 4-2, Ex. F, at 3.
The University has created the “Bias Response Team” (“BRT”) to oversee
“the response and management of bias incidents.” Doc. 4-2, Ex. F, at 1. The BRT
is comprised of University administrators and law enforcement, and may also
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include students and “community representatives who serve the U-M community.”
Doc. 4-2, Ex. F, at 1. The BRT is authorized to impose “a range of remedies” for
“bias incidents,” including “disciplinary action,” Doc. 4-2, Ex. H, “individual
education,” Doc. 4-2, Ex. I, or “restorative justice,” Doc. 4-2, Ex. L. To date, the
BRT has investigated and responded to more than 150 reports of “expressions of
bias” in a wide array of forums and touching on a broad range of subjects, including
race, religion, sexual orientation, color, national origin, sex, disability, socioeconomic status, organizational affiliation, political status, “race/politics,” “cultural
appropriation,” and “gender expression.” Doc. 4-2, Ex. J.
The University has also promulgated a Freedom Of Speech And Artistic
Expression Policy. See University Of Michigan, Standard Practice Guide Policy
601.1:

Freedom

Of

Speech

And

Artistic

Expression,

available

at

http://spg.umich.edu/policy/601.01 (last visited June 8, 2018) (cited at Defs.’ Mot.
For Extension Of Time ¶ 2 (Doc. 9)). That policy, however, does “not cover . . .
verbal harassment directed at individuals where there is no intent to communicate
publicly or with a wider audience.” Id. That policy “do[es] not apply to the
classroom” or provide “general guidelines concerning freedom of expression among
individuals.” Id. Instead, that policy “concern[s]” only “how most fully to protect
rights of free expression for speakers, performers, and protesters alike” in “settings
in which an audience has been assembled for a talk or performance.” Id.
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ARGUMENT
A plaintiff seeking a preliminary injunction must show that “he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction
is in the public interest.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008).
“When a party seeks a preliminary injunction on the basis of the potential violation
of the First Amendment, the likelihood of success on the merits often will be the
determinative factor” because “it is well-settled that loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes irreparable
injury,” and “it is always in the public interest to prevent the violation of a party’s
constitutional rights.” Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.
1998) (internal quotation marks omitted). Plaintiff meets these standards here.
“[T]he Supreme Court has held time and again, both within and outside the
school context, that the mere fact that someone might take offense at the content of
speech is not sufficient justification for prohibiting it.” Saxe v. State College Area
Sch. Dist., 240 F.3d 200, 215 (3d Cir. 2001) (Alito, J.). After all, “[i]f there is a
bedrock principle underlying the First Amendment, it is that the government may
not prohibit the expression of an idea simply because society finds the idea offensive
or disagreeable.” Texas, 491 U.S. at 414. The government thus may not prohibit
speech based on the “mere desire to avoid the discomfort and unpleasantness that
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always accompany an unpopular viewpoint.” Tinker, 393 U.S. at 509; see also Street
v. New York, 394 U.S. 576, 592 (1969) (“[T]he public expression of ideas may not
be prohibited merely because the ideas are themselves offensive to some of their
hearers.”); R.A.V. v. City of St Paul, 505 U.S. 377, 414 (1992) (“The mere fact that
expressive activity causes hurt feelings, offense, or resentment does not render the
expression unprotected.”). Nor may the government ban speech “based solely on
the emotive impact that its offensive content may have on a listener.” Saxe, 240
F.3d at 209 (Alito, J.); Forsyth Cty, 505 U.S. at 134 (ordinarily “[l]isteners’ reaction
to speech is not a content-neutral basis for regulation”).
State entities, including State-run colleges and universities, can—and, in
certain circumstances, must—proscribe “harassment,” “bullying,” and “bias-related
misconduct,” but those efforts must comport with the First Amendment and the
Constitution.2 As this Court noted nearly 30 years ago when it struck down a prior

2

For example, State entities can prohibit fighting words, harassing speech that
creates a hostile environment, and “true threats”—all of which are particularly
salient in the context of college campuses—in accordance with the First
Amendment. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (defining
fighting words as those which “by their very utterance inflict injury or tend to incite
an immediate breach of the peace”); Davis v. Monroe Cty. Bd. of Educ., 526 U.S.
629, 651 (1999) (establishing liability standards for damages under Title IX based
on school district’s failure to respond to hostile environment created by student-onstudent sexual harassment); Virginia v. Black, 538 U.S. 343, 359 (2003) (defining
true threats as speech that intends “to communicate a serious expression of an intent
to commit an act of unlawful violence to a particular individual or group of
individuals.”). So, too, can States enact hate-crime statutes that comport with the
First Amendment. See 18 U.S.C. § 249.
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speech policy of the University of Michigan, “[h]owever laudable or appropriate”
the University’s efforts to promote civility and inclusiveness on campus, a policy
that “swe[eps] within its scope a significant amount of verbal conduct or verbal
behavior which is unquestionably protected under the First Amendment” cannot pass
constitutional muster. Doe v. Univ. of Mich., 721 F. Supp. 852, 853 (E.D. Mich.
1989).

Unfortunately, the portions of the Statement and the Bias Response Policy

that Plaintiff challenges stretch far beyond the objective, well-established legal
definitions of “harassment” or “bias,” and prohibit broad swaths of speech protected
by the First Amendment. In particular, the Statement and the Bias Response Policy
proscribe and punish core protected speech based upon nothing more than the
listener’s subjective “reaction,” Forsyth Cty., 505 U.S. at 134, fail to “provide fair
notice of the standard of conduct to which the citizen is held accountable,” and
impermissibly expose faculty, students, and visitors to “arbitrary, discriminatory,
and overzealous enforcement” by University officials, Leonardson, 896 F.2d at 19596. The challenged portions of the Statement and the Bias Response Policy violate
the First Amendment.
I.

BY THEIR TERMS, THE UNIVERSITY’S PROHIBITIONS ON
“HARASSING,” “BULLYING,” “BIAS-RELATED MISCONDUCT,”
AND “BIAS INCIDENTS” VIOLATE THE FIRST AMENDMENT
The Supreme Court has warned against “the possibility that protected speech

of others may be muted . . . because of the possible inhibitory effects of overly broad
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statutes.” Broadrick, 413 U.S. at 612. The First Amendment overbreadth doctrine
thus “ensure[s] that an overbroad statute does not act to ‘chill’ the exercise of rights
guaranteed protection.” Leonardson, 896 F.2d at 195; see also NAACP v. Button,
371 U.S. 415, 433 (1933) (“Because First Amendment freedoms need breathing
space to survive, government may regulate in the area only with narrow
specificity.”).
In this Circuit, a court’s first step in applying the overbreadth doctrine is to
consider whether the challenged policy “reaches a substantial amount of
constitutionally protected speech.” Dambrot v. Central Mich. Univ., 55 F.3d 1177,
1182 (6th Cir. 1995) (quoting Members of City Council v. Taxpayers for Vincent,
466 U.S. 789, 801 (1984)); Leonardson, 896 F.2d at 195. The court then examines
whether the policy is “substantially overbroad and constitutionally invalid under the
void for vagueness doctrine.” Dambrot, 55 F.3d at 1183; Leonardson, 896 F.2d at
195-96. Unconstitutional vagueness can arise in “two forms, both of which result in
a denial of due process.” Leonardson, 896 F.2d at 195-96. A policy is void for
vagueness whenever it either fails to “provide fair notice of the standard of conduct
to which the citizen is held accountable” or “leaves the definition of its term to law
enforcement officers, and thereby invites arbitrary, discriminatory, and overzealous
enforcement.” Id.

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Here, Plaintiff is likely to succeed on the merits because the challenged
portions of the University’s Statement and the Bias Response Policy reach a
substantial amount of constitutionally protected speech and are void for vagueness.
A.

The Statement’s Bans On “Harassing,” “Bullying,” And “BiasMotivated Misconduct” Are Overbroad And Void For Vagueness
The portions of the Statement that the Plaintiff challenges are a paradigmatic

example of overbreadth and vagueness. The University has declined to bind itself
to a definition of either “harassing” or “bullying,” Doc. 4-2, Ex. B, at 1, 6-7, both of
which are incorporated in “bias-motivated misconduct,” Doc. 4-2, Ex. K, at 2.
Instead, the University has identified only “example” definitions of those terms.
Doc. 4-2, Ex. B, at 1, 6-7. The University has identified four such “example”
definitions of “harassment,” including one two-part definition, from such disparate
sources as the Merriam-Webster Dictionary, other University policies, and Michigan
state law. Doc. 4-2, Ex. B, at 1, 6-7. The University has also identified two
“example” definitions of “bullying,” one of which is a five-part alternative definition
and the other of which is a four-part alternative definition. Doc. 4-2, Ex. B, at 1, 67. Neither the Statement, the Definitions, nor any other University pronouncement
identifies which of those definitions, if any or all, governs the University’s
application of the Statement, its ban on “harassing,” “bullying,” and “bias-motivated
misconduct,” and its imposition of sanctions up to and including suspension or

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expulsion. Doc. 4-2, Ex. B, at 6-7. These portions of the Statement contravene the
First Amendment.
1.

First, the University’s use of the terms “harassing,” “bullying,” and

“bias-motivated misconduct” reaches “a substantial amount of constitutionally
protected speech.” Dambrot, 55 F.3d at 1182. The hallmarks of the well-established
definition of actionable harassment are severity, pervasiveness, and objective
offensiveness. See, e.g., Davis, 526 U.S. at 651 (Title IX: “so severe, pervasive, and
objectively offensive, and that so undermines and detracts from the victims’
educational experience, that the victim-students are effectively denied equal access
to an institution’s resources and opportunities”); Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993) (Title VII: “discriminatory intimidation, ridicule, and insult that
is sufficiently severe or pervasive to alter the conditions of the victim’s employment
and create an abusive working environment”).

But in the absence of “any

requirement akin to a showing of severity or pervasiveness—that is, that the conduct
objectively and subjectively creates a hostile environment or substantially interferes
with an individual’s work”—a university’s “harassment” policy violates the First
Amendment when it “provide[s] no shelter for core protected speech.” DeJohn v.
Temple University, 537 F.3d 301, 317-18 (3d Cir. 2008). Indeed, “[l]oosely worded
anti-harassment laws may pose some of the same problems as the St. Paul hate
speech ordnance [in R.A.V.]: they may regulate deeply offensive and potentially
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disruptive categories of speech based, at least in part, on subject matter and
viewpoint.” Saxe, 240 F.3d at 208 (Alito, J.).
Three cases illustrate how an anti-harassment policy can overreach into areas
of protected speech. In Dambrot, the Sixth Circuit invalidated a public university’s
“discriminatory harassment” policy on First Amendment grounds. See 55 F.3d at
1182-84. The policy challenged there stated that “discriminatory harassment will
not be condoned” and defined “[r]acial and ethnic harassment” as “any intentional,
unintentional, physical, verbal, or nonverbal behavior that subjects an individual to
an intimidating, hostile or offensive educational, employment, or living
environment.” Id. at 1182. Such “harassment” could be shown through use of
“symbols, [epithets], or slogans that infer negative connotations about the
individual’s racial or ethnic affiliation.” Id. The Sixth Circuit held that “[o]n its
face, the policy reaches a substantial amount of constitutionally protected speech”
because “[i]t is clear from the text of the policy that language or writing, intentional
or unintentional, regardless of political value, can be prohibited upon the initiative
of the university.” Id. at 1182-83. The policy was “sweeping and seemingly drafted
to include as much and as many types of conduct as possible.” Id.at 1182.
The Third Circuit reached a similar conclusion in DeJohn. The university’s
sexual harassment policy prohibited “all forms of sexual harassment, including . . .
expressive, visual, or physical conduct of a sexual or gender-motivated nature” when
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such conduct “has the purpose or effect of creating an intimidating, hostile, or
offensive environment.” 537 F.3d at 305. The Third Circuit concluded that the
policy’s “use of ‘hostile,’ ‘offensive,’ and ‘gender-motivated’ is, on its face,
sufficiently broad and subjective that they ‘could conceivably be applied to cover
any speech’ of a ‘gender-motivated’ nature ‘the content of which offends someone.’”
Id at 318. (quoting Saxe, 240 F.3d at 217 (Alito, J.)). The policy thus could prohibit
“‘core’ political and religious speech, such as gender politics and sexual morality”
or “opinions in class concerning women in combat and women in the military.” Id.
at 317 & n.18.

The Third Circuit therefore held that the policy, absent “a

requirement that the conduct objectively and subjectively creates a hostile
environment or substantially interferes with an individual’s work,” was overbroad
in violation of the First Amendment. See id. at 317-19.
This Court’s decision in Doe is also especially instructive. At issue was a
previous University of Michigan policy that included in its definition of harassment
“[a]ny behavior, verbal or physical, that stigmatizes or victimizes an individual on
the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin,
ancestry, age, marital status, handicap or Vietnam-era veteran status.” 721 F. Supp.
at 856. The Court explained that “[a] law regulating speech will be deemed
overbroad if it sweeps within its ambit a substantial amount of protected speech
along with that which it may legitimately regulate.” Id. at 864. The challenged
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policy was overbroad for precisely that reason: the Court pointed to occasions on
which “the University considered serious comments made in the context of
classroom discussion to be sanctionable under the Policy.” Id. at 866. What
mattered principally was the listener’s sense of being victimized or stigmatized. See
id.
Thus, in Dambrot, DeJohn, and Doe, the universities failed to include the
hallmarks of the well-established legal standard for harassment in their policies—
including the requirement of objective offensiveness—but instead allowed the
subjective reaction of the listener to dictate whether the speech was permissible.
Therefore, the policies were facially unconstitutional. See Dambrot, 55 F.3d at
1182-84; DeJohn, 537 F.3d at 317-19; Doe, 721 F. Supp. at 856, 864-66. Such is
the case here as well: the Statement’s ban on “harassing,” “bullying,” and “biasmotivated misconduct” turn on the listener’s reaction to speech. For example, one
of the University’s myriad “example” definitions of “harassing” comes from the
Merriam-Webster Dictionary and defines that term as “unwanted negative attention
perceived as intimidating, demeaning, or bothersome to an individual.” Doc. 4-2,
Ex. B, at 6 (emphasis added).

Moreover, one of the University’s multi-part

alternative “example” definitions of “bullying” defines that term in part as (1) “to
frighten, hurt, or threaten (a smaller or weaker person)” or (2) “to treat abusively.”
Doc. 4-2, Ex. B, at 6.
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Accordingly, a member of the University community may be found to have
engaged in “harassing,” “bullying,” or “bias-motivated misconduct” in violation of
the Statement based on nothing more than the listener’s reaction that the speech is
“demeaning,” “bothersome,” “hurt[ful],” or “abusive[].” Doc. 4-2, Ex. B, at 6. The
Statement thus does precisely what the First Amendment forbids—it punishes
speech merely because of “[l]isteners’ reaction.” Forsyth Cty., 505 U.S. at 134-35;
see also Texas, 491 U.S. at 414; Tinker, 393 U.S. at 509; Street, 394 U.S. at 592;
R.A.V., 505 U.S. at 414; Saxe, 240 F.3d at 209-15 (Alito, J.). Indeed, it is not difficult
to imagine how speech regarding the “wide array of controversial topics on which
Plaintiff’s members wish to engage in open, vigorous, or provocative debate and
discussion”—such as “politics, immigration, race, sex, gender identity, religion,
abortion, gun rights, and cultural issues,” Pl.’s Br. at 11 (Doc. 4)—would be
“perceived as” “demeaning,” “bothersome,” or “hurt[ful]” by some individual in the
University community, Doc. 4-2, Ex. B, at 6 (emphasis added); see also Pl.’s Br. at
15 (Doc. 4). The facial overbreadth of the Statement is clear.
2.

Second, the Statement’s bans on “harassing,” “bullying,” and “bias-

motivated misconduct” present “both problems” implicated by the void for
vagueness doctrine: “fair notice and unrestricted delegation.” Dambrot, 55 F.3d at
1184. In fact, the University’s listing of “examples” and failure to bind itself to a
definition of those terms alone establish that they are void for vagueness. Indeed,
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because the University has not bound itself to controlling definitions, members of
the University community “of common intelligence must necessarily guess at [the]
meaning” of the Statement’s proscriptions, Broadrick, 413 U.S. at 607, and may
“‘steer far wider of the unlawful zone,’ than if the boundaries of the forbidden areas
were clearly marked,” Baggett, 377 U.S. at 372.
Moreover, the University’s failure to bind itself to controlling definitions
effects “an unrestricted delegation of power” to University officials. Leonardson,
896 F.2d at 196. Policies that confer discretionary power on government officials
to regulate speech must contain “narrowly drawn, reasonable, and definite standards
for the officials to follow.” Niemotko, 340 U.S. at 271; see also Forsyth Cty., 505
U.S. at 131 (holding that speech policies “must contain narrow, objective, and
definite standards” to guide officials (internal quotation marks and citation
omitted)). But the University provides no single definition of the challenged terms
in the Statement, let alone a “narrowly drawn” one. Niemotko, 340 U.S. at 271. The
University’s failure to prescribe such a standard “in practice leaves the definition”
to University officials because it leaves University officials free to choose any, all,
or none of the “example” definitions of those terms. Id. In fact, this failure even
allows University officials to apply different definitions across cases—including
because of their own approval or disapproval of the content or viewpoint expressed
by the speech challenged in any individual case. See id. Such a scenario opens up
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precisely the risk of “arbitrary, discriminatory, and overzealous enforcement” that
the First Amendment forbids. Id.
Finally, the subjective “example” dictionary definitions of “harassing” and
“bullying” (and, by incorporation, “bias-motivated misconduct”) are void for
vagueness because they turn on what the listener subjectively “perceive[s].” Doc.
4-2, Ex. B, at 6. As the Sixth Circuit reasoned in striking down the anti-harassment
policy Dambrot, “[i]n order to determine what conduct will be considered
[demeaning, bothersome, or hurtful] to the university, one must make a subjective
reference” based upon the listener’s perception. 55 F.3d at 1184. Because “different
people find different things” intimidating, demeaning, or bothersome, the definition
“does not provide fair notice of what speech will violate the policy” but instead
improperly leaves those definitions “wholly delegated to university officials.” Id.
For these reasons, the challenged portions of the Statement are overbroad and
void for vagueness in violation of the First Amendment.
B.

The Bias Response Policy Is Unconstitutionally Overbroad And Void
For Vagueness
The University’s overbroad proscription on and punishment of core protected

speech in violation of the First Amendment does not end with the Statement. The
University’s Bias Response Policy addresses “bias incidents,” which may arise from
“non-criminal activit[y],” Doc. 4-2, Ex. H, at 4, that “excludes, harasses, or harms
anyone . . . based on their identity,” Doc. 4-2, Ex. F, at 1. Like the challenged
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portions of the Statement, the Bias Response Policy incorporates a wholly subjective
definition of “bias.” The Bias Response Policy emphasizes that “[b]ias comes in
many forms” and “can be hurtful action based on who someone is as a person,” and
it tells students that “[t]he most important indication of bias is your own feelings.”
Doc. 4-2, Ex. F, at 3 (emphasis added). It also states that “[b]ias often stems from
fear, misunderstanding, hatred, and stereotypes that may be intentional or
unintentional.” Doc. 4-2, Ex. F, at 1 (emphasis added). To date, the BRT has
responded to more than 150 “bias incidents.” Doc. 4-2, Ex. J.
A university community undoubtedly has an interest in combatting harm to
members of its community, in instilling respect for all persons, and in eradicating
prejudice from its campus. The rub here, however, is that the Bias Response Policy
is wholly subjective: it authorizes disciplinary consequences based on the “most
important indication” of the listener’s “own feelings,” Doc. 4-2, Ex. F, at 3; Ex. H;
Ex. I; Ex. L, and thus can sweep in all manner of constitutionally protected speech.
The Third Circuit already has held that a university policy prohibiting “conduct
which causes emotional distress” is unconstitutionally overbroad. McCauley v.
Univ. of the Virgin Islands, 618 F.3d 232, 250-53 (3d Cir. 2010). The Third Circuit
reasoned that “‘[e]motional distress’ is a very loose concept” that requires nothing
more than a “state of feeling” involving “an exceedingly minimal threshold of
harm.” Id. at 250. Even on a “narrow understanding” of that term, the Third Circuit
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concluded that it was “clear that the term is driven by the subjective preference of
the individual,” “without regard for whether the speech is objectively problematic.”
Id. at 250-51.
Thus, “[t]he scenarios in which this [policy] may be implicated are endless”:
[A] religious student organization inviting an atheist to
attend a group prayer meeting on campus could prompt
him to seek assistance in dealing with the distress of being
invited to the event; minority students may feel emotional
distress when other students protest against affirmative
action; a pro-life student may feel emotional distress when
a pro-choice student distributes Planned Parenthood
pamphlets on campus; even simple name-calling could be
so punished.
Id. at 251. “The reason all of these scenarios are plausible . . . is that the [policy] is
not based on speech at all. It is based on a listener’s reaction to speech.” Id.
The University’s reduction of “bias incidents” to the listener’s “own feelings,”
Doc. 4-2, Ex. F, at 3, likewise violates the First Amendment because it is not “based
on speech at all” but on “a listener’s reaction to speech,” McCauley, 618 F.3d at 251.
The Bias Response Policy does not prescribe any “minimal threshold of harm” to
the listener’s “feelings.” Id. at 250. Thus, the scenarios implicated by the Bias
Response Policy are even more numerous, and no less “endless,” than the scenarios
that established the constitutional violation in McCauley. Id. at 251. Moreover, the
Bias Response Policy focuses on the speaker’s “motivat[ion]” and the subjective
“hurtful[ness]” of the speech. Doc. 4-2, Ex. F, at 1-3; see also Dambrot, 55 F.3d at
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1184. Accordingly, as with the Statement, the Bias Response policy captures “a
substantial amount of constitutionally protected speech,” Dambrot, 55 F.3d at 1182,
defeats any “fair notice of the standard of conduct to which the citizen is held
accountable,” and improperly “leaves the definition of its term to law enforcement
officers,

and

thereby

invites

arbitrary,

discriminatory,

and

overzealous

enforcement,” Leonardson, 896 F.2d at 195-96. The Bias Response Policy “is
rightly criticized” because it prohibits “‘core’ political and religious speech” in
violation of the First Amendment. DeJohn, 537 F.3d at 317.
CONCLUSION
For the foregoing reasons, Plaintiff is likely to succeed on the merits of its
claim that the challenged portions of the Statement and the Bias Response Policy
violate the First and Fourteenth Amendments.

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Dated: June 11, 2018
Respectfully submitted:
/s/ John M. Gore
x
JOHN M. GORE
Acting Assistant Attorney General
DONALD R. LIVINGSTON
Deputy Assistant Attorney General
TARA HELFMAN
Special Counsel to the Assistant Attorney General
THOMAS CHANDLER
Acting Chief, Appellate Section
Civil Rights Division
United States Department of
Justice 950 Pennsylvania Avenue,
NW Washington, D.C. 20530
Telephone: [phone]
Facsimile: [phone]
MATTHEW SCHNEIDER
United States Attorney
s/Peter A. Caplan
PETER A. CAPLAN
Assistant U.S. Attorney
211 W. Fort St., Ste. 2001
Detroit, MI 48226
[phone]
Email: [e-mail]
P30643

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CERTIFICATE OF SERVICE
I hereby certify that I have this day filed the foregoing document with the
Clerk of Court using the CM/ECF system, which automatically sent counsel of
record e-mail notification of such filing.
This 11th day of June, 2018
s/Peter A. Caplan
PETER A. CAPLAN
Assistant U. S. Attorney