333 F. Supp. 3d 700
E.D. Mich.2018Background
- Speech First, on behalf of three unnamed University of Michigan students, sought a preliminary injunction challenging the university’s disciplinary prohibitions on “harassment,” “bullying,” and “bias-related misconduct,” and its Bias Response Team (BRT).
- The Statement of Student Rights and Responsibilities listed harassment/bullying as violations and prescribed sanctions ranging from education to suspension or expulsion; initial online definitions quoted general-dictionary and university materials.
- After filing, the University revised the OSCR definitions to adopt statutory-language definitions based on Michigan law and announced amendments treating bias-motivated misconduct as a separate evaluable violation.
- The BRT is an informal, non-disciplinary body that logs bias reports, provides support/referrals, and (rarely) contacts alleged subjects on a voluntary basis; it cannot impose sanctions according to university declarations and website statements.
- Speech First alleged a chilling effect on student speech; the University argued lack of standing, mootness (due to revised definitions), and that the BRT poses no credible threat of sanction.
- The court held a hearing and denied the preliminary injunction: it found Speech First had associational standing to challenge the harassment/bullying policy facially but the challenged dictionary-based definitions were moot; it found no Article III standing as to the BRT and weighed the other preliminary-injunction factors against relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to bring facial First Amendment challenge to harassment/bullying rules | Policy overbroad and chills student speech; organization has associational standing | No credible threat of enforcement; university promotes free expression | Speech First has standing to challenge the rules facially due to overbreadth but must still show concrete harm; standing met for policy challenge overall |
| Standing re: Bias Response Team (BRT) | BRT investigates and coerces students into remedial measures; fear of being contacted chills speech | BRT is non-disciplinary, cannot impose sanctions, contacts are voluntary and rare | No concrete or imminent injury shown; Speech First lacks Article III standing to challenge the BRT |
| Mootness of challenged dictionary-based definitions | Unilateral revisions do not moot case; concerns remain about bias definitions elsewhere | University removed the challenged definitions and adopted statutory definitions; changes are deliberate and announced | Definitions challenge is moot: voluntary cessation was credible and there is no reasonable expectation of recurrence |
| Preliminary-injunction balance of harms and public interest | Loss of First Amendment rights causes irreparable harm | Removal of challenged definitions eliminates threatened injury; injunction would harm others by impairing response to harassment | Equitable factors weigh against injunction; motion denied |
Key Cases Cited
- Bailey v. Callaghan, 715 F.3d 956 (6th Cir. 2013) (preliminary injunction standard and constitutional-injunction guidance)
- Hunter v. Hamilton Cty. Bd. of Elections, 635 F.3d 219 (6th Cir. 2011) (preliminary injunction factors)
- Forsyth Cty. v. Nationalist Movement, 505 U.S. 123 (1992) (overbreadth exception to standing rules in free-speech context)
- Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620 (1980) (overbreadth allows facial challenge to speech-restrictive laws)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing requirements)
- Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990) (standing burden at preliminary-injunction/summary judgment stages)
- Doe v. Univ. of Mich., 721 F. Supp. 852 (E.D. Mich. 1989) (university informal-resolution mechanisms could chill speech when tied to formal sanctions)
- Okwedy v. Molinari, 333 F.3d 339 (2d Cir. 2003) (governmental communications may create implicit coercion leading to standing)
- Bantam Books v. Sullivan, 372 U.S. 58 (1963) (governmental threats or implied sanctions can chill speech and establish standing)
- Penthouse Int'l, Ltd. v. Meese, 939 F.2d 1011 (D.C. Cir. 1991) (government criticism absent threat of sanction does not implicate the First Amendment)
- Elrod v. Burns, 427 U.S. 347 (1976) (loss of First Amendment freedoms constitutes irreparable injury)
- Bonnell v. Lorenzo, 241 F.3d 800 (6th Cir. 2001) (enjoining harassment policies can harm victims and the public interest)