Liberties Reporting on First Amendment freedoms

Free speech fight returns to the University of Michigan

First Amendment | Student group sues over policy protecting ‘the most sensitive student on campus’
by Bonnie Pritchett
Posted 5/15/18, 04:00 pm

A new student organization stepping into the college campus free speech fight wasted no time firing its first salvo by suing the University of Michigan over its speech code. In a lawsuit filed May 8, Speech First alleges the University of Michigan’s “vaguely worded” speech code protects hearers’ sensibilities at the expense of speakers’ constitutional right to free speech.

The lawsuit marks the first in what could be a series of legal battles brought by the group against offending campuses, Speech First president Nicole Neily told me.

“After looking at [the University of Michigan’s] policies, we discovered that they have not only a very bad, vaguely worded speech code … but they also had an extremely aggressive bias response team,” she said. “We determined that that combination of policies was toxic, as it chilled student speech and expression.”

The federal lawsuit details the University of Michigan’s attempts to keep the peace by intimidating its students—intentionally or not. School policy prohibits “harassment” and “bullying” but fails to succinctly define the terms. “Harassment” can be “unwanted negative attention perceived as intimidating, demeaning, or bothersome to an individual.”

The school’s Bias Response Team compounds the problem by adding the scrutiny of intent to a person’s speech or actions. “Bias comes in many forms,” the team’s website warns. “It can be a hurtful action based on who someone is as a person. The most important indication of bias is your own feelings.” The site urges students who “feel” like they might have experienced bias to report the incident.

Speech First argues “the most sensitive student on campus effectively dictates the terms under which others may speak.” Subjective definitions can have a “chilling effect” on campus free speech and leave students and staff susceptible to code violations and penalties, Neily said.

The university defends its speech policy and Bias Response Team as necessary tools for promoting civil engagement on campus.

“The University of Michigan strives to foster a sense of community where our students, faculty, and staff can thrive,” Kim Broekhuizen, associate director of public affairs, told me. “The Bias Response Team is just one resource to help us achieve our goal of creating an inclusive, respectful, and welcoming environment, where all voices can be heard.”

Broekhuizen called freedom of speech a “bedrock principle.” Citing school guidelines, she noted opinions expressed by students cannot get them suspended.

But Neily argued that the school’s efforts to civilize what can be contentious exchanges stifles speech and puts students and staff on their guard, for fear someone might report a perceived offense to the Bias Incident Report Log.

This is not the first time the University of Michigan has faced a free speech lawsuit. In 1989, Doe v. University of Michigan became the seminal case in the ongoing battle over free speech rights on college campuses when a federal court struck down the school’s flawed attempt to resolve serious racial tensions on campus by prohibiting hate speech.

Associated Press/Photo by Sue Ogrocki Associated Press/Photo by Sue Ogrocki Oklahoma Gov. Mary Fallin

Fallin protects religious adoption agencies

Ignoring threats from gay rights advocates, Oklahoma Gov. Mary Fallin on Friday signed into law a bill giving religious adoption and foster care agencies protection from state penalties and litigation over their Biblical convictions about marriage.

Like similar measures in seven other states, Oklahoma’s law maintains the status quo between state and private agencies caring for children in the state’s foster care system. Contrary to deceptive propaganda from LGBT advocates and local newspapers, the law does not prohibit same-sex couples from adopting and fostering children and does not leave children languishing in state custody.

A diverse pool of child welfare agencies provides birth mothers and foster and adoptive parents with more options, Fallin noted. “Other states that have declined the protection to faith-based agencies have seen these agencies close their doors, leaving less options for successful placement of children who need loving parents,” the Republican governor said in a statement.

The law, which goes into effect Nov. 1, prohibits state agencies from penalizing or withholding licenses or contracts from the private child-placement agencies that do not place children with single or same-sex couples. It also provides a legal defense for discrimination lawsuits— which gay rights groups have promised to file.

The Kansas legislature has passed a similar bill, and Gov. Jeff Coyler, a Republican, vowed to sign it. That would bring to eight the number of states with the courage to protect all adoption agencies and the children they serve. —B.P.

Associated Press/Photo by Sue Ogrocki (file) Associated Press/Photo by Sue Ogrocki (file) The Ten Commandments monument that once stood on the Oklahoma Capitol grounds.

Permission to stand

In an end run around a 2015 Oklahoma Supreme Court decision removing a Ten Commandments display from the state Capitol grounds, Gov. Mary Fallin on Friday approved a law allowing such displays to return to public property.

The law recognizes that certain historical documents—like the Ten Commandments, the Magna Carta, the U.S. Constitution, and the Oklahoma Constitution—“commemorate freedom” and can be displayed “proudly and resolutely” on public property. The state attorney general is authorized to defend the measure if—or when—it is challenged.

Critics contend the law still conflicts with the state constitution, which bars the use of public money or property, directly or indirectly, to benefit or support any sectarian institution or individual.

Fallin, a Republican, resisted the 2015 ruling against the Ten Commandments display but finally submitted after the state’s high court rejected an appeal from then–State Attorney General Scott Pruitt. The court declared the monument violated the state constitution. —B.P.

Florida synagogue wins again

For a third time, a court has ruled in favor of an East Boca Raton, Fla., Jewish congregation in an ongoing lawsuit by two persistent residents challenging the synagogue’s construction. The 11th U.S. Circuit Court of Appeals rejected the residents’ attempt to prevent any future development on the site and upheld a lower court’s dismissal of the case.

In 2016, a state court invalidated the Chabad of East Boca Raton’s building plans due to zoning conflicts, sending the congregation back to the drawing board for a suitable design. Although the congregation had no building plans or city approval at the time, the plaintiffs had the hutzpah to ask the 11th Circuit to block any future development of a synagogue on the site.

The congregation must still develop plans that meet city codes, and the residents could sue again to halt construction. —B.P.

Bonnie Pritchett

Bonnie reports on First Amendment freedoms for WORLD Digital.

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  • Janet B
    Posted: Wed, 05/16/2018 05:17 am

    Twice today in WORLD I have seen the word "hutzpah." 

    I thought it was spelled "chutzpah."

    Mr. Olasky?

  • MamaC
    Posted: Wed, 05/16/2018 12:22 pm

    I realize that I'm no Marvin Olasky, particulary when it comes to words, and especially words with a Jewish connection, so forgive me for replying to a question asked of him, but identifies "hutzpah, chutzpa, and hutzpa" as variant spellings of "chutzpah." I hope that helps.

  • Xion's picture
    Posted: Wed, 05/16/2018 12:32 pm

    Both spellings of chutzpah are valid, since it is a Hebrew transliteration spelled:  Chet, Tsaddi, Pe, He.  The letters 'ch' are meant to be pronounced like a gutteral H.

  • Xion's picture
    Posted: Wed, 05/16/2018 12:50 pm

    Why is it that those who claim to protect speech and religion, do so by shutting it down?  We see this trend worldwide.  In the name of peace and safety, the rioters always seem to get their way.  In Jerusalem, peaceful Jews were asked to leave to end the confrontation.  Peaceful conservatives are prevented from speaking on campuses as liberals burn cars and break windows.  Peaceful Christ is slandered, while the violent Muhammad is praised.  Good is punished to appease evil.  It promises peace, but there is no peace. 

  • SuperAndy's picture
    Posted: Fri, 05/18/2018 08:46 pm

    Well said. Sad, but true.

  • Laura W
    Posted: Sat, 05/19/2018 01:13 am

    If bias is really determined by whoever feels insulted, I could probably get someone drug in for "sensitivity training" or something if they call "man on" in a frisbee game. The only way to be safe from that kind of thing is to stop talking. So much for free speech.