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Speech First, Inc. v. Schlissel

United States Court of Appeals, Sixth Circuit

September 23, 2019

Speech First, Inc., Plaintiff-Appellant,
v.
Mark Schlissel, in his official capacity as President of the University of Michigan, et al., Defendants-Appellees.

          Argued: May 2, 2019

          Appeal from the United States District Court for the Eastern District of Michigan at Flint. No. 4:18-cv-11451- Linda V. Parker, District Judge.

         ARGUED:

          William S. Consovoy, CONSOVOY MCCARTHY PARK PLLC, Arlington, Virginia, for Appellant.

          Kevin T. Baine, WILLIAMS & CONNOLLY LLP, Washington, D.C., for Appellees.

         ON BRIEF:

          William S. Consovoy, Jeffrey M. Harris, CONSOVOY MCCARTHY PARK PLLC, Arlington, Virginia, for Appellant.

          Kevin T. Baine, Stephen J. Fuzesi, Kathryn "Kylie" Hoover, Amy B. McKinlay, WILLIAMS & CONNOLLY LLP, Washington, DC, Leonard M. Niehoff, HONIGMAN MILLER SCHWARTZ AND COHN LLP, Ann Arbor, Michigan, for Appellees.

          Thomas W. Kidd, Jr., KIDD & URLING LLC, West Chester, Ohio, Lawrence J. Joseph, Washington, D.C., for Amici Curiae.

          Before: COOK, McKEAGUE, and WHITE, Circuit Judges.

          OPINION

          MCKEAGUE, CIRCUIT JUDGE

         Universities have historically been fierce guardians of intellectual debate and free speech, providing an environment where students can voice ideas and opinions without fear of repercussion. According to Speech First, the University of Michigan has not lived up to this historic ideal. Instead, Speech First contends that the University of Michigan has stifled student speech through its policy prohibiting bullying and harassing behavior and its Bias Response Team initiative. Speech First claims that the policy and initiative violate the First Amendment, sweeping in protected speech through overbroad and vague prohibitions.

         Shortly after filing its complaint, Speech First moved for a preliminary injunction enjoining enforcement of the policy and use of the initiative. The district court declined to issue the preliminary injunction, based in part on its findings that Speech First lacked standing to challenge the Bias Response Team initiative and that the claims challenging the policy were moot. We disagree. Accordingly, for the reasons set forth below, we vacate the district court's denial of injunctive relief and remand the case for the district court to consider the merits of Speech First's motion for a preliminary injunction.

         I.

         Speech First first challenges the University of Michigan's policy prohibiting harassing and bullying behavior. The Statement of Student Rights and Responsibilities (the Statement) contains the University's policies. The Statement prohibits, among other things, "[h]arassing or bullying another person-physically, verbally, or through other means." Punishments for violating the Statement-called "interventions" and "sanctions"-range from a formal reprimand to expulsion. Speech First does not challenge the prohibition of harassing or bullying behavior itself. Rather, Speech First argues that one set of the University's definitions of "bullying" and "harassing" behavior is overbroad and vague, sweeping in protected speech.

         Although "harassing" and "bullying" are not defined in the Statement, the Office of Student Conflict Resolution (OSCR)-which investigates alleged violations of the Statement-defines both terms on its website. The definitions page was changed shortly after Speech First filed its complaint. Prior to this litigation, however, the website page included definitions from three sources: the Merriam-Webster Dictionary, University policies, and Michigan state law. Speech First challenges only the Merriam-Webster Dictionary definitions. The dictionary definitions were:

Harassing (http://www.merriam-webster.com/dictionary/harassing): (1) to annoy persistently (2) to create an unpleasant or hostile situation for, especially by uninvited and unwelcome verbal and physical conduct[.]
Bullying (http://www.merriam-webster.com/dictionary/bully): (1) to frighten, hurt, or threaten (a smaller weaker person), (2) to act like a bully toward (someone), (3) to cause (someone) to do something by making threats or insults or by using force, (4) to treat abusively, (5) to affect by means of force or coercion[.]

         After this lawsuit was filed, the University removed these definitions and the definitions taken from University policies, leaving only the definitions derived from Michigan state law, which Speech First does not contend are unconstitutional.

         Speech First also challenges the University's Bias Response Team (Response Team) initiative, which responds to student-reported "bias incidents." The Response Team's page on the University's website defines a "bias incident" as "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)." Causing a bias incident is not punishable under the Statement, unless the conduct that caused the bias incident violated some policy in the Statement. Speech First contends, however, that the term "bias incident" is overbroad and that the Response Team's practices in responding to bias incidents intimidate students, quashing their speech.

         The Response Team acts as an "informal resource to support students who feel they have experienced bias in the University community, to refer them to other campus resources as appropriate, and to educate the University community with respect to issues related to bias." The Response Team acts when someone files a report indicating that he or she has experienced a bias incident. It does not make determinations about whether reported conduct is a bias incident and follows a similar procedure following each report. After a report is filed, a Response Team member contacts the individual who filed the report to "discuss what happened and offer support and assistance." If the reporting individual wishes, "the person alleged to be responsible for the incident may be contacted and invited to voluntarily meet with a member of the [Response Team]. Such a meeting cannot be compelled, however." Additionally, the Response Team maintains a log of reported bias incidents containing "general information on the type of conduct that is being reported, where the conduct is occurring, and what actions have been taken to address the reported incidents." The log is posted on a publicly available website page and the events are anonymized. The Response Team has no direct punitive authority-it cannot, for example, suspend a student or impose academic sanctions. It can, however, make referrals to police, OSCR, or other school resources such as counselling services.

         Speech First is a freedom-of-speech advocacy organization with members who attend the University. After filing its complaint, Speech First moved for a preliminary injunction enjoining the University from:

(1) taking any actions to investigate, threaten, or punish students for violations of the prohibitions on "harassment, " "bullying, " and "bias-related misconduct" set forth in the University's Statement of Student Rights and Responsibilities . . . and
(2) using the Bias Response Team to investigate, threaten, or punish students (including informal punishments such as "restorative justice" or "individual education") for "bias incidents."

         The district court denied Speech First's motion.

         II.

         Courts consider four factors when ruling on a motion seeking a ...


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