michigan's policy against student expression that others find to be biased like the university of michigan the university of illinois here has created an elaborate scheme that discourages students from engaging in expression that others believe is biased there is no question that a college student of ordinary firmness will have his speech chilled when a university official from the bias assessment and response team contacts him to tell him that he has been accused of engaging in biased expression and that they would like to speak with him about the district court's holding to the contrary was incorrect if affirmed it would create a circuit split with the six circuit and this court should reverse mr connelly other material differences between the michigan program and the illinois program not that i'm aware of they both defined bias motivated incident they both set up a bias assessment  response team michigan called it a biased response team they both collected reports of bias anonymously through a website they both will reach out to students to talk to them they both their their responses and the complaints online they both have the power to refer complaints to a c r which is something the th circuit found very important and so these two biased response teams are nearly identical and for the same reasons that the th circuit found that speech st had standing to challenge them is there any evidence in the record to pull support what i think you just said that the part reports are referred to the university police so there are there's a distinction that the university appears to be drawing about whether they refer reports to the police there's a day of the said they affirmatively dealt with after that to the police that's correct so my question to you is is there in did you put in any evidence to the contrary because this is a preliminary injunction hearing the court weighed the evidence before the court made factual findings that we review for clear air short you put in any evidence to support your allegation that the part reports are referred to the university police yes and there are two examples in the record  e mails that had received the police so these were both examples of bart and i believe a part working with the police and i believe the distinction that the university appears to be drawing is that bart may n it comes to the fear that again a student of ordinary firmness will fear from the bias response team so in this oscar office there is a law enforcement officer who's assigned as a correct on the on there is a law enforcement officer whose record reveal or have any indication with regard to whether that law enforcement officer was involved in for example either of the references you talk about or any other interaction with individuals making complaints it is not it is not clear from the record whether the police that were that were involved with the bar responding to these instances was that actual police officer  on one part that is not clear but it is clear that on the ten person team of part is a police officer and that the two people who are in charge of bart also on supports what you're saying you'd ought to look at it now but before you come back on rebuttal maybe you could specifically identify that and then my next question for you is did you identify either of these incidents that you just by going to the district court during the preliminary injunction hearing that's not my question was what evidence do you have that part could refer incidents to the police and you've identified page one hundred and ninety eight thousand two hundred and fifty eight my question is did you identify those bias motivated but as we know from cases like bantam books in this court's decision and back page whether or not that the government official has the explicit authority to punish it is not the dispositive inquiry well that page was really different  because back page involved the share of sending a letter on his official letterhead demanding action condemning the activities and reminding them of the liability that they may face alone there's no such evidence here that well as far as the way i mean if you think of this is an analogy to what happens at the university you know it's true it's not the sheriff but it's  a body from the university called the bias assessment or response team and on the team and it's literally housed in the same office that punishes for violations of the student code in the leaders of it that you have just admitted this is not a violation of the student action in reminding of the their own potential liability they may face is a little bit different than an e mail from an organization saying just want to talk to us i think even you what i would say in the but again also think about it the i think even you would concede that it's certainly there one was coming from a sheriff and the other was coming from bark but this was going from a sheriff to sophisticated credit card companies and they still this court still found that that was sufficiently threat because of the language that was in there in the context of what you sent that's true but it's also going to you know student nineteen year old students and so  i would say it would be my view that an e mail from the official from from the bias assessment response team talking to them about this and saying you've been accused of bias and we want to speak with you carries the same  connotation that happened in backpage what statements to the students intend to make here that would fall within parts purview what evidence do we have your very st we have the definition of a bias motivated and that includes expression that is motivated by prejudice or hostility based on a whole number of characteristics race gender nationality that sort and what we know from what the students want to do which the district court appears that discredited in part because it's hearsay coming from somebody who claims they spoke with anonymous students did they identify specifically what statements they're claiming were chilled because of part i didn't see anything with those specific statements why yes so in the neeley declaration we identify this the specific statements that they want to make the one i just mentioned about the border wall the nd from student be saying she wants to advocate for policies that the radicalization of is long and the th was from the student student he says he wants to question what he's told g b t issues and from the record we know that bart regularly receives reports on these exact same issues the border wall whenever anyone is protesting about building the border wall they there was there was a point in the record where students said that he believed gender identity was a matter of choice and of course that's bias on the basis of sexual mores our sexual orientation and gender identity and someone from bart someone reported that to bart and someone from bar reached out to them same thing with the the radicalization of of islam that student being wants to talk there was an incident in the class where students said it was his opinion that most terrorists are terrorists this is what he said and he got a complaint about the bork and bart responded so and also categorizes every year based on the bias and if you if you look at these these reports there are numerous examples every year of incidents of bias that are deemed anti hispanic anti islamic  it's all the university puts out all the history and i would say there's a reason that the university did not make this argument below and they didn't make it below because they know that this exact speech will be reported to the bar and bar will respond so on that point i think i think the record is clear you have lumped bart a bit together that this is the housing aspect i didn't see anything in the dealey affidavit supporting your allegations on that so there is not as much evidence in the record about about bit i didn't see anything supporting allegations of chilling in connection with it i know you have have said that they're  similar but not none of the students for purposes of standing and injury and a preliminary injunction in your burden of proof i didn't see anything in the affidavit from many of the substandard and saying essentially reaction to it so as i went through this i thought you played it just fine your client played it just fine and i thought what nicole neily submitted was was fine to get this all kicked off and then what you confronted on the motion for a preliminary injunction is a very complete and thorough and and i mean pretty carefully done submission by the university right they came forward with a lot of different information and at that point in my mind i've got a bit of a lou harmon concern ok and my concern is that it that moment in the litigation the the members a b c d we don't see a declaration or an affidavit from them saying look this kind of rosy and idealistic picture that is painted in all these materials from the university in phatic lee does not reflect the reality on the ground the reality in champaign urbana they could have alleged so i think it's in you know hand in glove with your theory is very different than what we're seeing from the university submissions so just just bear with me a  i think you'll get what i mean the cases that were coming to mind when i was reading this are like you basically i think what the students are saying is it's happening different on the ground we feel differently and i started to think about cases like you and i know it's in a totally different area like lukumi bama lou ok santa fe independent school district versus doe hey look it may look fine but it is very different on the ground and it's it's that absence of evidence from the from the members that concerns me here what's your response to that so i would say that the evidence that we have in the record is from the university's own statements from public statements that they put on the record of how fart operates and their declarations which which laid out exactly how bart operates what we know don't we you'd agree you'd agree with this i think for certain we know from cases like lou hahn that that for him to be established there has to be concrete has to be particularized to has to be direct so if there was an affidavit here from the student that said look i've been i've read it all i'm going to school here i don't feel the way that there are the pictures i don't feel at all in keeping with the picture that they've painted maybe you get there you may be there but right now we have nicole neily it's flying at a little bit higher level of generality than that that's the concern that i have sure and the best response i can give is that the we are challenging the policies and from from from our standpoint i think all we need to say is we have students who are afraid of speaking here is what they want to say  and these are the policies and if you look at the policies there's i don't think that additional declarations necessarily what would have would have added much because for example with pork it's it's just it's it's obvious what's happening they they have basically i'm going to jump in here for just a minute because you only have a few minutes left you're absolutely right a twelve b sixty age in for a pleading stage that all you have to do is say that but this is the preliminary injunction stage where you have to put forth evidence supporting this and i think judge scudder's question of what i was trying to get up before is what is your evidence from the students not just saying there's a you're looking at the face at this because we know from the university they have put forth a detailed affidavit saying how you are construing this doesn't happen and here are  people telling you how this process works what your kind of a candidate look how many it look at where the where the church in the kumi says don't buy it this is a bunch of nonsense that this is officially neutral sanitation code to have an anonymous student's not giving specifics to a general affidavit where the students aren't saying bart ended up getting this referred to the university police and somebody was pursued because of this and therefore i'm afraid to speak we don't have that type of evidence and it's one thing for you to say what you started out by when you were sponsored to judge the cutter's question well we have said x y and z again that gets you past the twelve b six stage but at the preliminary injunction stage that you're appealing you have to put forth the evidence so a few points firstly look if if you review  six circuits decision speech versus little we did the exact same thing we put forth the exact same declaration in the six circuit found that it was enough to get us at least for at least for standard purpose to get us past that and then the  nd i would say is again these policies are clear and for the most part we're really not disputing many of the facts that were put forth by by the university because they've admitted to them some policy there has to be a credible threat of in force it and that's what your evidence isn't establishing and again are my the best point i can say is that for standing purposes proved this point because there's no dispute about what our students want to say there's no dispute that their exact statements have been investigated or have been reported to bart and responded by far and so for standing purposes those two  speech st not from anyone in any way affiliated with the university but a three and a half page declaration from the president of its national advocacy organization including nd and in some cases rd hand hearsay about what she understood life on campus to be on dollars students vigorously and daily express their st amendment rights not merely on the subject speech for us members claim they want to express on but indeed with the very viewpoints they claim they are chilled by on that record and under the correct legal standard the district was writing finding that speech busters come nowhere close to meeting the burden for the extraordinary relief it seeks and there was certainly no clear abuse of discretion if i might i'd like to discuss the six circuits decision which speech class puts a lot of weight on for reasons i'll say in a a referral to a disciplinary authority as a means of coercing a student to come and meet with bob regardless of what the record was in the six there isn't a shred of evidence indeed there's not even an allegation by speech trust that anything like that has ever happened at the university of illinois indeed the record is to the contrary in the january boating declaration the one example she gives of where a bot report was referred to the office of student conduct is a situation in which a in that case a jewish student was being harassed based on views about israel and it led them to physical contact with the student harassment leading to physical contact that is an allegation of a student code violation and speech for us doesn't say that there's any problem in that circumstance w chill and you look at that by the text of the policies but equally importantly you look at it by what do the students at the university of illinois think and again i think not only is it their response to bob but it's the reality of that speech on campus in almost every category that my friend identifies we have put evidence in the record that that exact speech occurs on campus they say for example they want to discuss pro life issues there was a major and we have it in the record here a major display of pro life support in the central university quarter the university of illinois no chill they say they want to advocate strong border policies we've put in the record there was a whole exhibition field of war only a campus a group at the university of illinois invited an ice public relations individual to come and speak on campus and the university provided free security to make sure that event could go off without interruption time and time again they have thirty four dollars anonymous students in a three page declaration and we put evidence in the record that that simply comes nowhere close to what life is like on campus and that case lawyer on up doesn't show it either jackson i think you're exactly right of course there are situations when an authority without actual coercive power could nonetheless put so much pressure to suppress speech of course there are back have this committee on morality sending letters to public to a booksellers saying you should stop selling these books then they say we will refer cases who don't to the attorney general and police show up at the bookseller's days off to make sure what follow up here say in that case reference to the fact that a student lives in student housing when we have the affidavit from the dean of student life at the student housing at the university of illinois explaining how bit walks and evidence of all of the expression that takes place within the student housing i think  n comes nowhere close and here they have to show us this court is set on a preliminary injunction basis enough facts to survive summary judgment they need to show a genuine issue of fact i would respectfully submit they haven't submitted any facts at all about the reality of life on campus so i think that for these reasons they've come nowhere close in the district it was absolutely right kathleen reviewing the record to make the determination they show nothing nothing to suggest that speeches this is chilled neither by the text of the policies they challenge or by the reality of life on campus and again that's a reality not only about the way students actually respond to bottom bit which is many of them say i don't want to meet at all or i'm not even gonna bother to respond to the e mail and in the instances when they do they have no proof at all that anybody has ever been told they can't speak in fact it's quite to the contrary they're told you're not in trouble you can keep expressing these views if you want to and many do and they have no evidence that anyone's ever said i'm too scared to express something because of the existence of bottom bit so again these allegations alone  only i think flatly disproved by the record but under the case law they cite back page all quality levon bantam books they simply come nowhere close now the other thing i'll say about the six up at the reason for the reasons i've given i think this case is distinguishable because even if you accept this rule from the th circuit is it possible that somebody has been threatened with really an illegal referral because on the university policy you can't refine this speech the speech is fully protected by the student code it's fully protected by the closed amendment but could you commit this sort of illegal referral and say yes you said something it's fully protected but i'm going to refer you anyway unless you come in and meet with me for this administratively burdensome meeting speech process if that's the standard we win because it's never happened but i would also suggest that that isn't the way somebody misread this statute apply a misreading and does that stand and indeed and schama the police had not only misread the statute they don't arrest it somebody under the statute and this court said no clearly that was a patent misreading of the statute so there isn't an objective reason to think in the future the police are going to do that and i don't want an agreement that we have is everyone agreed and mr conley can speak for himself on this that we haven't and this is all as applied i'm sorry facial i think it is a facial they put a talks about three or four students and what they want to talk about that's absolutely right want to she certainly talks about it but i think particularly the preliminary injunction stage you know this has a double hearsay and i'm not suggesting it's actually technically inadmissible but certainly the district court was right to look at the respond to give their side of the story that doesn't violate the st amendment what if that doesn't violate the us and here we have a voluntary meeting that most students don't even respond to or say i don't want to attend at the meeting there's not even a suggestion of a full blown investigation that's the word from abbott it's simply a discussion that certainly doesn't violate the fast amendment and it's not only because of the text of the policies again it's the reality of life on campus it's the hundreds of pages we put in the record showing how young students some of whom there are incidents that upset them i think the university it's a responsible for the university provide some form of all of support when i say that the campus life is wonderful it's not because students of muzzled it's because that's vigorous debate lots of things that being said you know pro life display pro choice display anti wall pro wolf some you know an eighteen year olds who might be up something i want to get some support i want to talk about something that upset me that doesn't mean that anyone's st amendment rights of being a being in any way impinged upon and i mean for that reason your i i think the st amendment exactly the opposite the idea is you have a reason to debate you have one view and another view and you debate and that's what happens only you know we've cited the chancellor of the university saying that the bodies the university's principles but don't only believe the chancellor statements i mean that's what happens on campus and they have zero response to that it's over these reasons i think that bart is in no way in control on a st amendment right obviously it doesn't tell anyone not to speak of this he doesn't put any penalty at all every single statement they want is not merely not a violation of the student code it's protected by the student code and they don't dispute that and in fact on page twelve of the record the bart website says most of what is reported to us doesn't violate the student code so but saying that as well and you know the fact that they can claim chil from anonymous students without even specifying what they want to say when we have evidence of exactly those things happening on campus i think the district court was right now even though it wasn't discussed by my friend if i could just briefly say sexual assaults violent incidents between students you know in a campus with almost fifty thousand students it's important to secure student safety no contact directives are very important for that and that's what i found confusing in page seventeen of judge bruce's decision he says no contact directives do not prevent cards from being present the same public space and website if you're there and see these are coming down to protect from sexual assault but it doesn't prevent people from getting sick from so your name is an excellent question i think the way these and of course this has nothing to do with just a moment expression but to clarify that very point i think the idea is if you're in a large gathering you know for example a can graduation or that may be a very large public speech with a lot of people you're allowed to sort of stay separate from each other circumstance it's you don't need to directly approach somebody else but of course what you are allowed to do with a no contact or active and even the one minute example they cite even missed a minute recognize this girl out to write and say whatever you want online express whatever use you want would be dissolved so if there's the evidence found by the university that's likely to students have had a long running conflict and it's going to a cop you know that's the situation when it's imposed and i think i can discuss it the court would like the one minute example but the fact of the matter is if that's the only thing they can possibly suggest when the no contact erected suppresses speech i just think it shows how weak their evidence is on the and then finally i will say your honour's on the move next question to the extent the court has any issues about that here the university followed its formal procedure the committee on conduct governance followed by the signature of the chance of this is a policy they don't even allege was ever in force to before and so i say that because when the court determines is the university genuine in its desire to get rid of this policy the absence of any prior enforcement whatsoever the use of formal policies the fact that we've said it we have no no reason to think this will ever come back we don't want to put this back it was never in force in the past i think all of that goes to show that they're trying to inch is moot and i think  about the two dash for seven for all three no that's correct short of the two dash for seven i think they lose on standing on the other two but on the two dots for seven it's clearly mood with their plans to rescind to dash for seven prior to the last so you're on i want to be careful about not revealing some of attorney client privilege in this admittedly somewhat public space i think that to dash for seven was never in force i think that as i will say this i think there are certain elements in voluminous codes that may have gotten in years ago and people aren't always aware that they even exist and i think the test is whether that was planned before the test is is it genuine and how do you know it's genuine you know it's genuine because you go through formal procedures the fact that there was no prior enforcement i think only shows that you're not in a situation where the university is trying to hide the ball here you know all the cases they cite i think for example the aladdin case great example let the in that situation they had a policy they got rid of it during litigation and then they put it back again so when the thing happens again they say well this is exactly what you did the last time you got rid of it during litigation you put it back there's no reason to even suggest university would you that you have no history of prior enforcement absolutely no suggestion and again a statement from a state employee the acting dean of students of the university no intention to reach reinstate this combined with the fact of the of formal procedures gone through i think that is clearly the record of the school repeatedly and the fabulous and city of chicago case i think is instructive or again in the midst of litigation the so that in that case the city got rid of a of a procedure i think that's very instructive on moving us so you want to get in some i think when you look at the facts and you look at the lord's speech for us just trying to do here is an extraordinary expansion of st amendment standing on a total paucity lack of any record whatsoever here is a situation where you have a normal mess for anonymous alleged anonymous students in a three page declaration from the president of an advocacy organization in washington d c containing nd hand hearsay about life on campus and on the basis of that in the face of voluminous evidence not only about the operation of bought that policies that the university has the text of those policies and also the way students respond to evolved in response of that i think what speech was introduced is nowhere close and again i think what it goes to is a complete misconception of what the st amendment means about the importance of lively vigorous debate between viewpoints and not this notion that the only thing that you can have is everyone screaming at the top of that longs with it with nothing else i just nd just running you're asked about you know why is the bart needed and to the point the council gives is that part is needed for counseling and we have no intention or of trying to prevent the university from helping people who are affected by hurtful speech and counseling right now we're not trying to get council we're not trying to stop them from engaging in council and i think you know that the bar is actually about targeting the speaker because they anonymous reports in fact most of these most of these reports come in anonymously and if that's the case it's certainly not helping the listener who's affected by the speech the rd thing i would say is again what the standing purpose the standing point i think it's i think it's a whether or not we went on the merits is a separate issue but whether we have standing we've alleged our students want to engage in this speech there is evidence that the bar regularly receives these exact types of speech and responds to them and i think the question just the simple question at a to ask yourself is if a student received an e mail from the bias assessment and response team saying you've been accused of bias and we'd like to speak to you about for example something you said in class is it more or less likely that a student of ordinary firmness is going to make that same statement in the future and if that's the point this whole point of this is to make student is to tell students we are watching you and you better watch what you say and that's a perfect point to remember i think and finally with the section two dash for a seven it's not quite accurate that the university never enforce this they have the declaration said for miss kurtz said she had never seen or heard of it being forced from one