The Department of Justice filed a statement of interest and, in a press release, they said:
The United States’ Statement of Interest argues that the University of Michigan’s Statement of Student Rights and Responsibilities, which prohibits “harassment,” “bullying,” and “bias,” is unconstitutional because it offers no clear, objective definitions of the violations. Instead, the Statement refers students to a wide array of “examples of various interpretations that exist for the terms,” many of which depend on a listener’s subjective reaction to speech.
The United States also argues that the University’s Bias Response Policy chills protected speech through its Bias Response Team. The Bias Response Team, which consists of University administrators and law enforcement officers, has the authority to subject students to discipline and sanction. It encourages students to report any suspected instances of bias, advising them: “[t]he most important indication of bias is your own feelings.” According to the plaintiff, the Bias Response Team has responded to more than 150 alleged incidents of bias in the last year.
In filing the Statement of Interest, Acting Associate Attorney General Jesse Panuccio provided the following statement:
Freedom of speech and expression on the American campus are under attack. This Justice Department, under the leadership of Attorney General Jeff Sessions, is committed to promoting and defending Americans’ first freedom at public universities.
Nicole Neily, president of Speech First told Campus Reform:
We’re delighted that the U.S. Department of Justice has filed a statement of interest in our case against the University of Michigan Over the past year, DOJ has shown that they place a high priority on the First Amendment rights of students across the country, and we look forward to the court ruling on the merits of Speech First v. Schlissel.
Originally, the University of Michigan said that Speech First and the DOJ misunderstood the speech code. U of M spokesman Rick Fitzgerald told Michigan Radio:
Contrary to the department’s statement, the university’s Bias Response Team does not ‘have the authority to subject students to discipline and sanction.’ It provides support to students on a voluntary basis; it does not investigate claims of bias or discipline students in any way.
However, the same day Fitzgerald made that statement, he posted an announcement online saying that definitions were being clarified. He says that Vice President for Student Life E. Royster Harper has sent a message to colleagues in the Division of Student Life and to student leaders in which he says:
The revised definitions more precisely and accurately reflect the commitment to freedom of expression that has always been expressed in the statement itself.
He claims that “prior to the filing of the lawsuit, the university already was reviewing its websites and policies to ensure they were consistent with First Amendment principles. After the lawsuit was filed May 8, that review was accelerated,” which seems to be at odds with the earlier statement that U of M’s speech codes were misunderstood.