Case: 4:18-cv-11451 As of: 11/17/2019 06:59 PM EST 1 of 12
U.S. District Court Eastern District of Michigan (Flint) CIVIL DOCKET FOR CASE #: 4:18−cv−11451−LVP−EAS

CLOSED

Speech First, Inc. v. SCHLISSEL et al

Date Filed: 05/08/2018

Assigned to: District Judge Linda V. Parker

Date Terminated: 10/29/2019

Referred to: Magistrate Judge Elizabeth A. Stafford

Jury Demand: None

Case in other court:

U.S. Court of Appeals − Sixth

Nature of Suit: 448 Civil Rights:

Circuit, 18−01917

Education

U.S. Court of Appeals − Sixth Circuit, Jurisdiction: Federal Question

18−01917

Cause: 42:1983 Civil Rights Act

Plaintiff

Speech First, Inc.

represented by Jeffrey M. Harris Consovoy McCarthy PLLC 1600 Wilson Blvd Suite 700 Arlington, VA 22209 703−243−9423 Fax: 703−243−8696 Email: jeff@consovoymccarthy.com ATTORNEY TO BE NOTICED

John A. Di Giacomo Revision Legal, PLLC 444 Cass Street Suite D Traverse City, MI 49684 231−714−0100 Fax: 231−714−0200 Email: john@revisionlegal.com ATTORNEY TO BE NOTICED

V.
Defendant
MARK SCHLISSEL in his official capacity as President of the University of Michigan

represented by Adam Michael Wenner Honigman LLP 660 Woodward Avenue Suite 2290 Detroit, MI 48226 313−465−7338 Fax: 313−465−7339 Email: awenner@honigman.com ATTORNEY TO BE NOTICED
Amy B. McKinlay Williams & Connolly LLP 725 Twelfth Street, N.W. Washington, DC 20005 202−434−5490 Email: amckinlay@wc.com ATTORNEY TO BE NOTICED
J. Michael Huget Honigman LLP 315 East Eisenhower Parkway Suite 100 Ann Arbor, MI 48108 734−418−4254

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Fax: 734−418−4255 Email: mhuget@honigman.com ATTORNEY TO BE NOTICED

Kathryn Hoover Williams & Co 725 Twelfth Street LLP Washington, DC 20005 202−434−5388 Fax: 202−434−5029 Email: khoover@wc.com ATTORNEY TO BE NOTICED

Kevin T. Baine Williams Connolly 725 Twelfth Street, NW Washington, DC 20005 202−434−5010 Email: kbaine@wc.com ATTORNEY TO BE NOTICED

Leonard M. Niehoff Honigman, LLP 315 East Eisenhower Parkway Suite 100 Ann Arbor, MI 48108 734−418−4246 Fax: 734−418−4247 Email: lniehoff@honigman.com ATTORNEY TO BE NOTICED

Rian Cierra Dawson Honigman LLP 660 Woodward Avenue Suite 2290 Detroit, MI 48226 313465−7730 Fax: 313−465−7731 Email: RDawson@honigman.com ATTORNEY TO BE NOTICED

Stephen J. Fuzesi Williams and Connolly LLP 725 Twelfth Street, N.W. Washington, DC 20005 202−434−5558 Email: sfuzesi@wc.com ATTORNEY TO BE NOTICED

Defendant
E. ROYSTER HARPER in her official capacity as Vice President for Student Life at the University of Michigan

represented by Adam Michael Wenner (See above for address) ATTORNEY TO BE NOTICED
Amy B. McKinlay (See above for address) ATTORNEY TO BE NOTICED

J. Michael Huget (See above for address) ATTORNEY TO BE NOTICED

Kathryn Hoover (See above for address)

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ATTORNEY TO BE NOTICED

Kevin T. Baine (See above for address) ATTORNEY TO BE NOTICED

Leonard M. Niehoff (See above for address) ATTORNEY TO BE NOTICED

Rian Cierra Dawson (See above for address) ATTORNEY TO BE NOTICED

Stephen J. Fuzesi (See above for address) ATTORNEY TO BE NOTICED

Defendant
ERIK WESSEL in his official capacity as Director of the Office of Student Conflict Resolution

represented by Adam Michael Wenner (See above for address) ATTORNEY TO BE NOTICED

Amy B. McKinlay (See above for address) ATTORNEY TO BE NOTICED

J. Michael Huget (See above for address) ATTORNEY TO BE NOTICED

Kathryn Hoover (See above for address) ATTORNEY TO BE NOTICED

Kevin T. Baine (See above for address) ATTORNEY TO BE NOTICED

Leonard M. Niehoff (See above for address) ATTORNEY TO BE NOTICED

Rian Cierra Dawson (See above for address) ATTORNEY TO BE NOTICED

Stephen J. Fuzesi (See above for address) ATTORNEY TO BE NOTICED

Defendant
JULIO CARDONA in his official capacity as Interim Assistant Dean of Students

represented by Adam Michael Wenner (See above for address) ATTORNEY TO BE NOTICED

Amy B. McKinlay (See above for address) ATTORNEY TO BE NOTICED

J. Michael Huget (See above for address) ATTORNEY TO BE NOTICED

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Kathryn Hoover (See above for address) ATTORNEY TO BE NOTICED

Kevin T. Baine (See above for address) ATTORNEY TO BE NOTICED

Leonard M. Niehoff (See above for address) ATTORNEY TO BE NOTICED

Rian Cierra Dawson (See above for address) ATTORNEY TO BE NOTICED

Stephen J. Fuzesi (See above for address) ATTORNEY TO BE NOTICED

Defendant
EDDIE L. WASHINGTON, JR. in his official capacity as Executive Director of the Division of Public Safety & Security

represented by Adam Michael Wenner (See above for address) ATTORNEY TO BE NOTICED
Amy B. McKinlay (See above for address) ATTORNEY TO BE NOTICED

J. Michael Huget (See above for address) ATTORNEY TO BE NOTICED

Kathryn Hoover (See above for address) ATTORNEY TO BE NOTICED

Kevin T. Baine (See above for address) ATTORNEY TO BE NOTICED

Leonard M. Niehoff (See above for address) ATTORNEY TO BE NOTICED

Rian Cierra Dawson (See above for address) ATTORNEY TO BE NOTICED

Stephen J. Fuzesi (See above for address) ATTORNEY TO BE NOTICED

Defendant
ROBERT SELLERS Vice Provost for Equity and Inclusion

represented by Adam Michael Wenner (See above for address) ATTORNEY TO BE NOTICED

Amy B. McKinlay (See above for address) ATTORNEY TO BE NOTICED

J. Michael Huget (See above for address)

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ATTORNEY TO BE NOTICED

Kathryn Hoover (See above for address) ATTORNEY TO BE NOTICED

Kevin T. Baine (See above for address) ATTORNEY TO BE NOTICED

Leonard M. Niehoff (See above for address) ATTORNEY TO BE NOTICED

Rian Cierra Dawson (See above for address) ATTORNEY TO BE NOTICED

Stephen J. Fuzesi (See above for address) ATTORNEY TO BE NOTICED

Defendant
MICHAEL J. BEHM in his or her official capacity as member of the University of Michigan Board of Regents

represented by Adam Michael Wenner (See above for address) ATTORNEY TO BE NOTICED
Amy B. McKinlay (See above for address) ATTORNEY TO BE NOTICED

J. Michael Huget (See above for address) ATTORNEY TO BE NOTICED

Kathryn Hoover (See above for address) ATTORNEY TO BE NOTICED

Kevin T. Baine (See above for address) ATTORNEY TO BE NOTICED

Leonard M. Niehoff (See above for address) ATTORNEY TO BE NOTICED

Rian Cierra Dawson (See above for address) ATTORNEY TO BE NOTICED

Stephen J. Fuzesi (See above for address) ATTORNEY TO BE NOTICED

Defendant
MARK J. BERNSTEIN in his or her official capacity as member of the University of Michigan Board of Regents

represented by Adam Michael Wenner (See above for address) ATTORNEY TO BE NOTICED
Amy B. McKinlay (See above for address) ATTORNEY TO BE NOTICED

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J. Michael Huget (See above for address) ATTORNEY TO BE NOTICED

Kathryn Hoover (See above for address) ATTORNEY TO BE NOTICED

Kevin T. Baine (See above for address) ATTORNEY TO BE NOTICED

Leonard M. Niehoff (See above for address) ATTORNEY TO BE NOTICED

Rian Cierra Dawson (See above for address) ATTORNEY TO BE NOTICED

Stephen J. Fuzesi (See above for address) ATTORNEY TO BE NOTICED

Defendant
SHAUNA RYDER DIGGS in his or her official capacity as member of the University of Michigan Board of Regents

represented by Adam Michael Wenner (See above for address) ATTORNEY TO BE NOTICED
Amy B. McKinlay (See above for address) ATTORNEY TO BE NOTICED

J. Michael Huget (See above for address) ATTORNEY TO BE NOTICED

Kathryn Hoover (See above for address) ATTORNEY TO BE NOTICED

Kevin T. Baine (See above for address) ATTORNEY TO BE NOTICED

Leonard M. Niehoff (See above for address) ATTORNEY TO BE NOTICED

Rian Cierra Dawson (See above for address) ATTORNEY TO BE NOTICED

Stephen J. Fuzesi (See above for address) ATTORNEY TO BE NOTICED

Defendant
DENISE ILITCH in his or her official capacity as member of the University of Michigan Board of Regents

represented by Adam Michael Wenner (See above for address) ATTORNEY TO BE NOTICED
Amy B. McKinlay (See above for address)

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ATTORNEY TO BE NOTICED

J. Michael Huget (See above for address) ATTORNEY TO BE NOTICED

Kathryn Hoover (See above for address) ATTORNEY TO BE NOTICED

Kevin T. Baine (See above for address) ATTORNEY TO BE NOTICED

Leonard M. Niehoff (See above for address) ATTORNEY TO BE NOTICED

Rian Cierra Dawson (See above for address) ATTORNEY TO BE NOTICED

Stephen J. Fuzesi (See above for address) ATTORNEY TO BE NOTICED

Defendant
ANDREA FISCHER NEWMAN in his or her official capacity as member of the University of Michigan Board of Regents

represented by Adam Michael Wenner (See above for address) ATTORNEY TO BE NOTICED
Amy B. McKinlay (See above for address) ATTORNEY TO BE NOTICED

J. Michael Huget (See above for address) ATTORNEY TO BE NOTICED

Kathryn Hoover (See above for address) ATTORNEY TO BE NOTICED

Kevin T. Baine (See above for address) ATTORNEY TO BE NOTICED

Leonard M. Niehoff (See above for address) ATTORNEY TO BE NOTICED

Rian Cierra Dawson (See above for address) ATTORNEY TO BE NOTICED

Stephen J. Fuzesi (See above for address) ATTORNEY TO BE NOTICED

Defendant
ANDREW C. RICHNER in his or her official capacity as member of the University of Michigan Board of Regents

represented by Adam Michael Wenner (See above for address) ATTORNEY TO BE NOTICED

Case: 4:18-cv-11451 As of: 11/17/2019 06:59 PM EST 8 of 12

Amy B. McKinlay (See above for address) ATTORNEY TO BE NOTICED

J. Michael Huget (See above for address) ATTORNEY TO BE NOTICED

Kathryn Hoover (See above for address) ATTORNEY TO BE NOTICED

Kevin T. Baine (See above for address) ATTORNEY TO BE NOTICED

Leonard M. Niehoff (See above for address) ATTORNEY TO BE NOTICED

Rian Cierra Dawson (See above for address) ATTORNEY TO BE NOTICED

Stephen J. Fuzesi (See above for address) ATTORNEY TO BE NOTICED

Defendant
RON WEISER in his or her official capacity as member of the University of Michigan Board of Regents

represented by Adam Michael Wenner (See above for address) ATTORNEY TO BE NOTICED
Amy B. McKinlay (See above for address) ATTORNEY TO BE NOTICED

J. Michael Huget (See above for address) ATTORNEY TO BE NOTICED

Kathryn Hoover (See above for address) ATTORNEY TO BE NOTICED

Kevin T. Baine (See above for address) ATTORNEY TO BE NOTICED

Leonard M. Niehoff (See above for address) ATTORNEY TO BE NOTICED

Rian Cierra Dawson (See above for address) ATTORNEY TO BE NOTICED

Stephen J. Fuzesi (See above for address) ATTORNEY TO BE NOTICED

Defendant
KATHERINE E. WHITE in his or her official capacity as member

represented by Adam Michael Wenner (See above for address)

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of the University of Michigan Board of Regents

ATTORNEY TO BE NOTICED
Amy B. McKinlay (See above for address) ATTORNEY TO BE NOTICED

J. Michael Huget (See above for address) ATTORNEY TO BE NOTICED

Kathryn Hoover (See above for address) ATTORNEY TO BE NOTICED

Kevin T. Baine (See above for address) ATTORNEY TO BE NOTICED

Leonard M. Niehoff (See above for address) ATTORNEY TO BE NOTICED

Rian Cierra Dawson (See above for address) ATTORNEY TO BE NOTICED

Stephen J. Fuzesi (See above for address) ATTORNEY TO BE NOTICED

Interested Party United States

Date Filed 05/08/2018
05/08/2018 05/08/2018 05/08/2018 05/11/2018

# Docket Text
1 COMPLAINT filed by Speech First, Inc. against MICHAEL J. BEHM, MARK J. BERNSTEIN, JULIO CARDONA, SHAUNA RYDER DIGGS, E. ROYSTER HARPER, DENISE ILITCH, ANDREA FISCHER NEWMAN, ANDREW C. RICHNER, MARK SCHLISSEL, ROBERT SELLERS, EDDIE L. WASHINGTON, JR., RON WEISER, ERIK WESSEL, KATHERINE E. WHITE. Plaintiff requests summons issued. Receipt No: 0645−6723254 − Fee: $ 400. County of 1st Plaintiff: Out of State − County Where Action Arose: Washtenaw − County of 1st Defendant: Washtenaw. [Previously dismissed case: No] [Possible companion case(s): None] (Attachments: # 1 Civil Cover Sheet) (Di Giacomo, John) (Entered: 05/08/2018)
2 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by All Plaintiffs (Di Giacomo, John) (Entered: 05/08/2018)
3 SUMMONS Issued for *MICHAEL J. BEHM, MARK J. BERNSTEIN, JULIO CARDONA, SHAUNA RYDER DIGGS, E. ROYSTER HARPER, DENISE ILITCH, ANDREA FISCHER NEWMAN, ANDREW C. RICHNER, MARK SCHLISSEL, ROBERT SELLERS, EDDIE L. WASHINGTON, JR., RON WEISER, ERIK WESSEL, KATHERINE E. WHITE* (SKra) (Entered: 05/08/2018)
A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (SKra) (Entered: 05/08/2018)
4 MOTION for Preliminary Injunction by Speech First, Inc.. (Attachments: # 1 Exhibit Declaration of Nicole Neily, # 2 Exhibit Declaration of Jeffrey Harris) (Di Giacomo, John) (Entered: 05/11/2018)

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05/15/2018 05/15/2018 05/15/2018 05/15/2018 05/16/2018 05/17/2018 05/17/2018 05/17/2018 05/18/2018
05/31/2018 06/11/2018 06/14/2018 06/15/2018 06/15/2018 06/15/2018
06/18/2018 06/19/2018
06/29/2018

5 NOTICE of Appearance by J. Michael Huget on behalf of All Defendants. (Huget, J.) (Entered: 05/15/2018)
6 NOTICE of Appearance by Leonard M. Niehoff on behalf of All Defendants. (Niehoff, Leonard) (Entered: 05/15/2018)
7 NOTICE of Appearance by Rian Cierra Dawson on behalf of All Defendants. (Dawson, Rian) (Entered: 05/15/2018)
8 NOTICE of Appearance by Adam Michael Wenner on behalf of All Defendants. (Wenner, Adam) (Entered: 05/15/2018)
9 MOTION for Extension of Time to File Response/Reply as to 4 MOTION for Preliminary Injunction by All Defendants. (Dawson, Rian) (Entered: 05/16/2018)
10 NOTICE of Appearance by Kevin T. Baine on behalf of All Defendants. (Baine, Kevin) (Entered: 05/17/2018)
11 RESPONSE to 9 MOTION for Extension of Time to File Response/Reply as to 4 MOTION for Preliminary Injunction filed by Speech First, Inc.. (Di Giacomo, John) (Entered: 05/17/2018)
12 REPLY to Response re 9 MOTION for Extension of Time to File Response/Reply as to 4 MOTION for Preliminary Injunction filed by All Defendants. (Dawson, Rian) (Entered: 05/17/2018)
TEXT−ONLY ORDER Granting In Part and Denying In Part the 9 Motion for Extension of Time to File Response/Reply. The Response to the 4 MOTION for Preliminary Injunction is due by 6/15/2018, The Reply is due by 6/29/2018. IT IS SO ORDERED. Issued by District Judge Linda V. Parker. (RLou) (Entered: 05/18/2018)
13 WAIVER OF SERVICE Returned Executed. All Defendants. (Di Giacomo, John) (Entered: 05/31/2018)
14 STATEMENT of Interest In Support of Plaintiff's Motion for Preliminary Injunction by United States (Caplan, Peter) (Entered: 06/11/2018)
15 NOTICE of Appearance by Stephen J. Fuzesi on behalf of All Defendants. (Fuzesi, Stephen) (Entered: 06/14/2018)
16 NOTICE of Appearance by Kathryn Hoover on behalf of All Defendants. (Hoover, Kathryn) (Entered: 06/15/2018)
17 NOTICE of Appearance by Amy B. McKinlay on behalf of All Defendants. (McKinlay, Amy) (Entered: 06/15/2018)
18 RESPONSE to 4 MOTION for Preliminary Injunction filed by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Declaration of Kevin Baine and Exhibits, # 3 Exhibit B − Declaration of Evelyn Galvan, # 4 Exhibit C − Declaration of E. Royster Harper and Exhibits, # 5 Exhibit D.1 − Declaration of Laura Blake Jones and Exhibits 1−27, # 6 Exhibit D.2 − Declaration of Laura Blake Jones Exhibits 28−51, # 7 Exhibit D.3 − Declaration of Laura Blake Jones Exhibits 52−88, # 8 Exhibit E − Declaration of Erik Wessel and Exhibit) (McKinlay, Amy) (Entered: 06/15/2018)
19 MOTION to Stay re 1 Complaint,,, Unopposed Motion to Stay Obligation to Answer or Otherwise Respond to Complaint by All Defendants. (McKinlay, Amy) (Entered: 06/18/2018)
20 ORDER Granting Defendants' Unopposed 19 Motion to Stay Obligation to Answer or Otherwise Respond to Complaint. (The Deadline for Filing a Responsive Pleading to the Complaint is Extended Until Twenty−One (21) Days From the Date That the Court Rules on the Motion For Preliminary Injunction). Signed by District Judge Linda V. Parker. (RLou) (Entered: 06/19/2018)
21 REPLY to Response re 4 MOTION for Preliminary Injunction filed by Speech First, Inc.. (Di Giacomo, John) (Entered: 06/29/2018)

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06/29/2018 07/05/2018 07/13/2018 07/31/2018
08/06/2018 08/13/2018 08/13/2018 08/20/2018 08/21/2018
10/02/2018
03/04/2019 09/23/2019 10/13/2019 10/15/2019 10/15/2019 10/16/2019 10/28/2019

22 NOTICE of Appearance by Jeffrey M. Harris on behalf of All Plaintiffs. (Harris, Jeffrey) (Entered: 06/29/2018)
23 NOTICE OF HEARING on 4 MOTION for Preliminary Injunction. Motion Hearing set for 7/31/2018 at 2:30 PM before District Judge Linda V. Parker (RLou) (Entered: 07/05/2018)
24 NOTICE OF HEARING on 4 MOTION for Preliminary Injunction. Motion Hearing RESET for 7/31/2018 at 2:30 PM before District Judge Linda V. Parker ***IN DETROIT − COURTROOM 602*** (RLou) (Entered: 07/13/2018)
Minute Entry for proceedings before District Judge Linda V. Parker: Motion Hearing held on 7/31/2018 re 4 MOTION for Preliminary Injunction. Disposition: Motion Taken Under Advisement (Court Reporter: Peg Goodrich) (RLou) (Entered: 07/31/2018)
25 OPINION and ORDER Denying Plaintiff's 4 Motion for Preliminary Injunction. Signed by District Judge Linda V. Parker. (RLou) (Entered: 08/06/2018)
26 NOTICE OF APPEAL by All Plaintiffs re 25 Order on Motion for Preliminary Injunction. Receipt No: 0645−6856933 − Fee: $ 505 − Fee Status: Fee Paid. (Di Giacomo, John) (Entered: 08/13/2018)
27 Certificate of Service re 26 Notice of Appeal. (DWor) (Entered: 08/13/2018)
28 MOTION for Extension of Time to File Answer re 1 Complaint,,, by All Defendants. (Hoover, Kathryn) (Entered: 08/20/2018)
TEXT−ONLY ORDER Granting the 28 MOTION for Extension of Time to File Answer re 1 Complaint. The Deadline for Filing a Responsive Pleading to the Complaint is Extended Until Twenty−One (21) Days After Plaintiff's Appeal is Decided by the U.S. Court of Appeals for the Sixth Circuit. IT IS SO ORDERED. Issued by District Judge Linda V. Parker. (RLou) (Entered: 08/21/2018)
29 TRANSCRIPT of MOTION FOR PRELIMINARY INJUNCTION held on July 31, 2018. (Court Reporter: Peg L. Goodrich) (Number of Pages: 48) (Appeal Purposes) The parties have 21 days to file with the court and Court Reporter a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 10/23/2018. Redacted Transcript Deadline set for 11/2/2018. Release of Transcript Restriction set for 12/31/2018. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Goodrich, P) (Entered: 10/02/2018)
30 ORDER from U.S. Court of Appeals − Sixth Circuit re 26 Notice of Appeal filed by Speech First, Inc. [Appeal Case Number 18−1917] (DWor) (Entered: 03/06/2019)
31 OPINION AND JUDGMENT from U.S. Court of Appeals − Sixth Circuit re 26 Notice of Appeal filed by Speech First, Inc. [Appeal Case Number 18−1917] (SKra) (Entered: 09/23/2019)
32 MOTION for Extension of Time to File Answer re 1 Complaint,,, by All Defendants. (Baine, Kevin) (Entered: 10/13/2019)
33 MANDATE from U.S. Court of Appeals − Sixth Circuit as to 31 Appeal Order/Opinion/Judgment [Appeal Case Number 18−1917] (SKra) (Entered: 10/15/2019)
34 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 10/17/2019 at 10:30 AM before District Judge Linda V. Parker (RLou) (Entered: 10/15/2019)
Reset Conference: TELEPHONIC Status Conference RESET for 10/31/2019 at 11:30 AM before District Judge Linda V. Parker (RLou) (Entered: 10/16/2019)
35 NOTICE of Voluntary Dismissal by Speech First, Inc. (Attachments: # 1 Settlement Agreement) (Harris, Jeffrey) (Entered: 10/28/2019)

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10/29/2019 10/29/2019

TEXT−ONLY NOTICE: Telephonic Status Conference on 10/31/2019 is Cancelled (RLou) (Entered: 10/29/2019)
36 ORDER of DISMISSAL. Signed by District Judge Linda V. Parker. (RLou) (Entered: 10/29/2019)

 
 4:18-cv-11451-LVP-EAS Doc # 1 Filed 05/08/18 Pg 1 of 50 Pg ID 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

SPEECH FIRST, INC.,
Plaintiff, v.
MARK SCHLISSEL, in his official capacity as President of the University of Michigan; E. ROYSTER HARPER, in her official capacity as Vice President for Student Life at the University of Michigan; ERIK WESSEL, in his official capacity as Director of the Office of Student Conflict Resolution; JULIO CARDONA, in his official capacity as Interim Assistant Dean of Students; EDDIE L. WASHINGTON, JR., in his official capacity as Executive Director of the Division of Public Safety & Security; ROBERT SELLERS, Vice Provost for Equity and Inclusion; and MICHAEL J. BEHM, MARK J. BERNSTEIN, SHAUNA RYDER DIGGS, DENISE ILITCH, ANDREA FISCHER NEWMAN, ANDREW C. RICHNER, RON WEISER, KATHERINE E. WHITE, all in their official capacities as members of the University of Michigan Board of Regents,
Defendants.

COMPLAINT Civil Action No. _________________

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Plaintiff Speech First, Inc. brings this action under the First and Fourteenth Amendments to the United States Constitution against Defendants for declaratory and injunctive relief and alleges as follows.
INTRODUCTION 1. “The mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’” Papish v. Bd. of Curators of Univ. of Mo., 410 U.S. 667, 670 (1973). After all, “[t]he college campus is peculiarly suited to serve as a marketplace of ideas and a forum for the robust exchange of different viewpoints.” Solid Rock Found. v. Ohio State Univ., 478 F. Supp. 96, 102 (S.D. Ohio 1979). 2. Yet the University of Michigan (“the University”) and its officials have created an elaborate investigatory and disciplinary apparatus to suppress and punish speech other students deem “demeaning,” “bothersome,” or “hurtful.” This Court found the University’s previous iteration of a speech code to violate the First and Fourteenth Amendments. See Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989). The University’s latest attempts at censorship should fare no better. 3. First, the University’s disciplinary code prohibits “harassment” and “bullying,” and further increases the potential penalties if such actions were motivated by “bias.” All of those concepts, as the University interprets and applies them, can capture staggering amounts of protected speech and expression. For example, the University defines “harassment” as “unwanted negative attention perceived as
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intimidating, demeaning, or bothersome to an individual.” A student can thus be subject to significant penalties (up to and including expulsion) if another student perceives his or her speech as “demeaning” or “bothersome.” Under this regime, the most sensitive student on campus effectively dictates the terms under which others may speak. The University’s expansive and amorphous prohibitions on “harassment,” “bullying,” and “bias-related misconduct” are having—and will continue to have—a profound chilling effect on protected expression, and are void for vagueness due to the utter lack of clear notice about the line between permissible and prohibited conduct.
4. Second, the University has created a “Bias Response Team” (BRT) that receives complaints of “bias” and “bias incidents” from offended students and is tasked with investigating and punishing those who commit such offenses. According to the University, “[b]ias comes in many forms,” can be intentional or unintentional, and “can be a hurtful action based on who someone is as a person.” In determining whether a bias incident has occurred, “[t]he most important indication of bias is your own feelings.” As a result, a student whose speech is seen by another student as “hurtful” to his or her “feelings” may receive a knock on the door from a team of University officials threatening to refer the student to formal disciplinary authorities unless he or she submits to “restorative justice,” “individual education,” or “unconscious bias training.” The BRT and its highly subjective definitions of “bias” and “bias incident” pose a grave threat to free expression at the University, and are unconstitutional under the doctrines of overbreadth, vagueness, and prior restraints.
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JURISDICTION AND VENUE 5. This action arises under the First and Fourteenth Amendments to the United States Constitution and is brought pursuant to 42 U.S.C. §§ 1983 and 1988. 6. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343. 7. Venue is proper in the Eastern District of Michigan under 28 U.S.C. § 1391 because the events giving rise to the claims detailed herein occurred in the Eastern District of Michigan.
PARTIES 8. Plaintiff Speech First, Inc. (“Speech First”) is a nationwide membership organization of students, alumni, and others that is dedicated to preserving civil rights secured by law, including the freedom of speech guaranteed by the First Amendment to the U.S. Constitution. In particular, Speech First seeks to protect the rights of students and others at colleges and universities, through litigation and other lawful means. 9. Speech First has members who attend the University, which is a public university organized and existing under the laws of the State of Michigan. 10. Defendant Mark Schlissel is the President of the University. Schlissel is responsible for the enactment and enforcement of University policies, including the policies and procedures challenged herein. Schlissel is sued in his official capacity.
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11. Defendant E. Royster Harper is the Vice President for Student Life at the University. Harper is responsible for administration and policymaking at the University, including the policies and procedures challenged herein. She is sued in her official capacity.
12. Defendant Erik Wessel is the Director of the Office of Student Conflict Resolution at the University. He is responsible for the investigation, enforcement, and punishment of students for violations of the student code, including the speech codes and prohibitions on “bias incidents” challenged herein. Wessel is sued in his official capacity.
13. Defendant Julio Cardona is the Interim Assistant Dean of Students at the University of Michigan. He is responsible for the operation of the Bias Response Team and the investigation, enforcement, and punishment of students for “bias incidents.” Cardona is sued in his official capacity.
14. Defendant Eddie L. Washington, Jr., is the Executive Director of the Division of Public Safety & Security, which is a component of the Bias Response Team and is involved in investigating alleged bias incidents. Washington is sued in his official capacity.
15. Defendant Robert Sellers is the Vice Provost for Equity and Inclusion and Chief Diversity Officer at the University. Sellers oversees the Office of Diversity, Equity & Inclusion, which is a component of the Bias Response Team and is involved in investigating alleged bias incidents. Sellers is sued in his official capacity.
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4:18-cv-11451-LVP-EAS Doc # 1 Filed 05/08/18 Pg 6 of 50 Pg ID 6
16. Defendants Michael J. Behm, Mark J. Bernstein, Shauna Ryder Diggs, Denise Ilitch, Andrea Fischer Newman, Andrew C. Richner, Ron Weiser, Katherine E. White, and Mark S. Schlissel are members of the University of Michigan Board of Regents (herein collectively, “Regent Defendants”). The Regent Defendants are responsible for the adoption and authorization of policies that govern students at the University, including the policies and procedures challenged herein. The Regent Defendants are sued in their official capacity.
STATEMENT OF FACTS I. The First Amendment Rights of Students
17. “The First Amendment reflects ‘a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’” Snyder v. Phelps, 562 U.S. 443, 452 (2011) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 339 (2010).
18. The First Amendment’s importance is at its apex at our nation’s colleges and universities. “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools [of higher education]. The college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas.’” Healy v. James, 408 U.S. 169, 180 (1972) (quoting Shelton v. Tucker, 364 U.S. 476 (1960)).
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4:18-cv-11451-LVP-EAS Doc # 1 Filed 05/08/18 Pg 7 of 50 Pg ID 7
19. The core principles of the First Amendment “acquire a special significance in the university setting, where the free and unfettered interplay of competing views is essential to the institution’s educational mission.” Doe, 721 F. Supp. at 863 (citing Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967)). “Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” Sweezy v. State of N.H. by Wyman, 354 U.S. 234, 250 (1957). The First Amendment’s protections, moreover, are “not confined to the supervised and ordained discussion which takes place in the classroom” but extend throughout a university’s campus. Solid Rock Found., 478 F. Supp. at 102.
20. Put simply, “First Amendment protections [do not] apply with less force on college campuses than in the community at large.” Healy, 408 U.S. at 180. “The mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’” Papish, 410 U.S. at 670. Indeed, “the point of all speech protection ... is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 574 (1995). II. The University’s Statement of Student Rights and Responsibilities Chills
Speech. 21. The University is a public institution whose policies must comply with the First and Fourteenth Amendments to the Constitution. Yet the University and its
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officials have a long record of seeking to limit some students’ speech and expression in order to prevent other students from taking offense.
22. This Court previously enjoined University officials from implementing an earlier iteration of a speech code. See Doe, 721 F. Supp. at 864-67 (holding that speech code prohibiting “verbal conduct” that “victimizes” or “stigmatizes” certain groups was unconstitutionally overbroad in violation of the First Amendment and void for vagueness under the Fourteenth Amendment). Despite that holding, the University and its officials have continued to maintain policies and take actions that have the purpose and effect of limiting speech that certain students might find offensive.
23. The University’s Statement of Student Rights and Responsibilities (“Statement”) “describes possible behaviors which are inconsistent with the values of the University community.” The Statement “outlines procedures to respond to such behaviors” and “suggests possible sanctions/interventions which are intended to educate and to safeguard members of the University Community.” In short, the Statement prohibits certain actions and sets forth procedures and remedies for alleged violations. The University claims authority to punish misconduct that “occurs in the city of Ann Arbor, on University controlled property, or at University sponsored events/programs.”
24. Unsurprisingly, the Statement provides that students may be disciplined for conduct such as physically harming another person, illegally possessing drugs or alcohol, falsifying documents or records, theft, and vandalism.
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4:18-cv-11451-LVP-EAS Doc # 1 Filed 05/08/18 Pg 9 of 50 Pg ID 9
25. The Statement also prohibits “[h]arassing or bullying another person— physically, verbally, or through other means.”
26. Although the Statement does not define “harassment,” it does cite a definition of that term from the University’s “Expect Respect” initiative, which is a program designed to create a “[c]ampus social climate” that is “safe and inclusive.” That program defines “harassment” as “unwanted negative attention perceived as intimidating, demeaning, or bothersome to an individual.” The Statement also cross-references Merriam-Webster’s Dictionary, which defines “harassing” as “(1) to annoy persistently; (2) to create an unpleasant or hostile situation, especially by uninvited or unwelcome verbal or physical conduct.” In other words, a student may violate the University’s prohibition on so-called “harassment” if he or she engages in “verbal[]” conduct (i.e., speech) that another student perceives as being “demeaning,” “bothersome,” or “annoying.”
27. The only definition of “bullying” the University has provided is a link to Merriam-Webster’s Dictionary, which defines that term as: “(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.” A student could thus be reported, investigated, and punished for “bullying” if she “verbally” or through “other means” (e.g., the Internet) engages in conduct that another student finds “frightening,” “abusive,” or “hurtful.”
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4:18-cv-11451-LVP-EAS Doc # 1 Filed 05/08/18 Pg 10 of 50 Pg ID 10
28. Any student, faculty member, or staff member may submit a complaint to the Office of Student Conflict Resolution (“OSCR”) alleging a violation of the Statement. The OSCR will then investigate and decide whether to bring charges against the student.
29. A student who violates the Statement can suffer a wide range of punishments. The OSCR can, among other things, formally reprimand the student; put the student on probation; prohibit the student from working at the University; order the student to attend a class, complete an “educational project,” or perform “community tasks” that will teach the student “why certain behavior is inappropriate”; place the student in another dorm room or remove him or her from University housing; suspend the student for a specific time; or permanently expel the student from the University.
30. In April 2018, the University announced amendments to the Statement that will take effect on July 1, 2018. Under those amendments, there will be a separate, additional prohibition on “bias-related misconduct,” which is defined as a violation of any of the other enumerated offenses in the Statement (including “bullying” or “harassment”) that is “motivated by bias or prejudice,” including “behavior motivated on the basis of any person’s identity as protected by the University of Michigan’s Nondiscrimination Policy (race, color, national origin, age, marital status, sex, sexual orientation, gender identity, gender expression, disability, religion, height, weight, or veteran status).” Under this amendment, an action that violates the Statement that is
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4:18-cv-11451-LVP-EAS Doc # 1 Filed 05/08/18 Pg 11 of 50 Pg ID 11
“motivated on the basis” of alleged “bias” can be subject to two sanctions—one for the underlying offense and one for the “bias.” As explained in greater detail below, the University’s definitions of “bias” are every bit as vague and amorphous as its prohibitions on “bullying” or “harassment.”
31. The effect of these amorphous prohibitions on “bullying,” “harassment,” and “bias-motivated misconduct” is to profoundly chill free speech and open discourse at the University.
32. A student who voices a controversial or unpopular opinion—or who seeks to use humor, parody, or satire when discussing sensitive topics—could face severe punishment up to and including expulsion if even one other student perceives that speech to be “demeaning” or “bothersome.” Put differently, students must be certain before speaking that their words will not be perceived as offensive by even the most sensitive student on campus.
33. Many students will inevitably choose not to speak—or to speak less forcefully about controversial topics—rather than face the risk of disciplinary proceedings and punishment if another student takes offense at their words and files a complaint alleging violations of the Statement’s ban on “bullying,” “harassment,” and “bias-motivated misconduct.” III. Chilling of Speech by the “Bias Response Team”
34. The University has further supplemented the bullying/harassment provisions of the Statement with a “Bias Response Team” (BRT).
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35. The BRT is comprised of University administrators and law enforcement. It also may include students and “community representatives who serve the U-M community.” The BRT is tasked with managing “the response and management of bias incidents.”
36. Like the definitions of harassment and bullying in the Statement, the University has adopted an extremely vague, open-ended, and subjective definition of bias that can encompass a wide array of conduct, including speech and expression protected by the First Amendment.
37. The University defines “bias” as “a pre-formed negative opinion or attitude toward a group of persons who possess common physical characteristics, such as skin color; or cultural experiences, such as religion or national origin.” Such “bias,” according to the University, “often stems from fear, misunderstanding, hatred, and stereotypes, and may be intentional or unintentional.”
38. The University’s definitions of “bias” encompass countless instances of protected speech and expression on all manner of topics. Under the plain text of these definitions, a student may be deemed to have acted with “bias” if, for example, she gives a speech sharply criticizing the Catholic Church and its adherents for not allowing women to become priests; this student has expressed a “negative opinion” or “attitude” about a certain group of people based on their “cultural experience” of religion.
39. The University further defines “bias incident” as “non-criminal activity committed against a person or property that is motivated, in whole or in part, by the
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4:18-cv-11451-LVP-EAS Doc # 1 Filed 05/08/18 Pg 13 of 50 Pg ID 13
offender’s bias against a race, color, ethnicity, national origin, sex, gender identity or expression, sexual orientation, disability, age or religion.” The BRT’s website similarly defines “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).”
40. The University has emphasized that “[b]ias comes in many forms,” and “can be a hurtful action based on who someone is as a person.” That standard is completely subjective: according to the University, after all, “[t]he most important indication of bias is your own feelings.” And the University has emphasized that “[b]ias-related incidents … do not always result in unfair treatment that violates nondiscrimination laws.”
41. Returning to the example discussed above, the student who holds a negative opinion of the Catholic Church and its adherents could be deemed to engage in a “bias incident” if she gives a speech in the Diag or passes out fliers articulating her strongly held views that the Church is wrong to prohibit women from becoming priests. The speech or fliers would be an “activity” based on this student’s “negative opinion” of the Catholic Church that could be seen as “hurtful” to the “feelings” of students who share the “cultural experience” of belonging to the Catholic faith.
42. The University has adopted an elaborate system through which “bias incidents” are reported, investigated, and potentially punished by the BRT.
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4:18-cv-11451-LVP-EAS Doc # 1 Filed 05/08/18 Pg 14 of 50 Pg ID 14

43. Students can file reports of “bias, intolerance, or discrimination” with the

BRT anonymously or on the record. The University allows students to submit such

information online, by phone, or in person at multiple locations. The University widely

promotes the BRT system and strongly encourages students to report other students’

“expression of bias.”

44. After receiving a report of “bias,” the BRT opens an investigation. The

BRT is comprised of representatives from various units within the University, many of

whom wield significant power over students. For example, the BRT includes

representatives from the Dean of Students Office, the OSCR (which is responsible for

handling disciplinary issues), the University Housing Office, and the Division of Public

Safety and Security (which is a law-enforcement unit that “conduct[s] all police and

security operations” on campus).

45. The BRT also includes a full-time “Bias Incident Prevention and

Response Coordinator,” whose duties include reviewing reported incidents for

“investigation and response,” “[p]artner[ing] with other campus and divisional social

justice initiatives,” “enact[ing] cultural appropriation prevention initiatives,” and

maintaining “strong working relationships with identity-based student organizations.”

46. When it receives a report of “bias,” the BRT conducts a full investigation

into the incident. The BRT will speak with the student who provided the information

(if the student’s identity is available) and will confront the student or students whose

speech was deemed to be “biased.”

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4:18-cv-11451-LVP-EAS Doc # 1 Filed 05/08/18 Pg 15 of 50 Pg ID 15
47. If the identity of the individual who expressed “bias” is unknown, the BRT will investigate the incident in an attempt to learn the individual’s identity.
48. The University has stated in no uncertain terms that students who engage in so-called “bias incidents” may be found to have “violated University policies or community standards.” And the University has further emphasized that “bias incidents” will be addressed through “a range of remedies that may include disciplinary action as well as community education and dialogue.” Bias incidents may also “result in individual education.” Thus, even if a student accused of “bias” is not referred to the OSCR for formal discipline, the student may be subjected to so-called “individual education” about his or her purported bias.
49. The BRT publishes online a “Bias Incident Report Log” in which it documents (at a high level of generality) its investigations and responses to incidents of “bias.”
50. This log identifies: (1) the date of the bias incident; (2) the “method of expression of bias”; (3) the nature of the bias expressed; (4) the location of the bias incident; (5) and the BRT’s response.
51. Since April 2017, the BRT has investigated and responded to more than 150 reports of “written,” “verbal,” “electronic,” and “other” “expressions of bias.”
52. The alleged “expressions of bias” have occurred through numerous modes of expression, both on and off campus, including (1) posters, (2) social media, (3) whiteboards, (4) email, (5) online posts, (6) pictures on dorm-room doors, (7) fliers,
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4:18-cv-11451-LVP-EAS Doc # 1 Filed 05/08/18 Pg 16 of 50 Pg ID 16
(8) verbal comments, (9) “statements and drawings,” (10) group chat, (11) group text that was posted online, (12) Twitter, (13) articles published online, (14) Facebook invitations and Facebook posts, and (15) “classroom behavior.”
53. The alleged “expressions of bias” have concerned a wide array of subjects, including issues of race, religion, sexual orientation, color, national origin, sex, disability, gender identity, socio-economic status, organizational affiliation, political status, “race/politics,” “cultural appropriation,” “gender expression,” and “other” topics. For reasons that are unclear, the BRT also was called to investigate when a group of students made a phallic-shaped sculpture out of snow.
54. In connection with these investigations, the BRT has acted aggressively to censor what it considers “expression of bias.” For example, the BRT has taken down signs, removed flyers, confronted faculty members, erased speech on whiteboards, and interrogated students accused of expressions of bias (whom the University calls “offenders”).
55. The BRT has also imposed various forms of punishment on students whose speech purportedly expressed bias, including requiring students to perform “ongoing educational work,” requiring students to attend “unconscious bias training,” and imposing “restorative justice” on offenders. Such disciplinary measures unquestionably constitute punishment for disfavored expression: regardless of whether the University and the BRT consider these measures to be formal disciplinary actions,
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4:18-cv-11451-LVP-EAS Doc # 1 Filed 05/08/18 Pg 17 of 50 Pg ID 17
they stigmatize students as wrongdoers, impose unwanted burdens on students’ time, and distract them from their studies and other activities.
56. Senior University officials also have repeatedly threatened to punish under the Statement those who engage in speech that exhibits “bias” (which, again, includes any speech that may be “hurtful” to someone’s “feelings”).
57. For example, Defendant Harper has made clear that students who commit “bias incidents” are subject to punishment under the Statement. According to Harper, the BRT includes officials from the OSCR—who are charged with enforcing the Statement and overseeing disciplinary proceedings—because, although an act of “bias” may “not [be] a crime in the criminal kind, it is a violation of our own values and standards.”
58. Defendant Schlissel also has made clear in interviews with the student newspaper that certain “expressions of bias” will be treated as a violation of the Statement and will be handled in conjunction with the OSCR. Schlissel has stated that students whose speech “exhibit[s] bias” will face discipline ranging from “restorative justice” to official punishment, such as suspensions, under the Statement.
59. According to Schlissel, “[m]y job is to make sure that we have structures established and the right set of rules to make sure when bad events do happen, we can investigate them, attempt to figure out who’s responsible and then, once we’ve done that, find the appropriate punishment, be it restorative justice or, on the other extreme, sanctions against the people who are responsible.” Schlissel described “restorative
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justice” as a process in which the students in question “learn from” the incident and are “remediated.”
60. Defendant Erik Wessel, Director of the OSCR, has acknowledged that, as of October 2017, the OSCR—which is tasked with enforcing the student code—already had handled multiple cases of “bias” that school year.
61. As noted above, the University amended the Statement in April 2018 to add “bias-motivated misconduct” as a separate and independent offense that can enhance the penalties for other violations of the Statement (such as “bullying” or “harassment”). This amendment to the Statement makes crystal clear that the University intends to use its formal disciplinary apparatus to punish students deemed to have engaged in “bias.”
62. Representatives of several student groups at the University, including the Central Student Government, also recently created a “Bias Incident Rapid Response Group.” The purpose of the group is “to inform one another about hateful flyers, posters, chalking, vandalism, misconduct, or upcoming potentially controversial campus events and take shared responsibility to respond with positive messaging; this can occur in various forms, including empowering flyers/posters/chalking, hosting a different event on the same night as the controversial one, and reporting bias incidents, which are reported to the Dean of Students office in the event that an act of University misconduct … occurs.”
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4:18-cv-11451-LVP-EAS Doc # 1 Filed 05/08/18 Pg 19 of 50 Pg ID 19
63. The University also created the “Response, Education and Awareness Community Taskforce” (“REACT”), which is a “student taskforce” that works with the BRT. Students on REACT are “trained in one of two areas: preventative planning or bias incident training,” and they “learn how to handle issues involving identity, bias, and social and restorative justice ideas.” This new group will also “share resources about reporting a bias incident” to the BRT.
64. The BRT has a profound chilling effect on speech and expression at the University.
65. Based on a vague and highly subjective definition of “bias,” any student who offers an opinion that may be deemed by another student to be “hurtful” to his or her “feelings” risks an investigation from the University’s disciplinary apparatus and the potential for punishment ranging from “restorative justice” and “individual education” to formal disciplinary action. The inevitable result is that many students will be deterred from speaking at all, especially on controversial topics that another student may find “hurtful” or “offensive.”
66. The mere existence of the BRT mechanism chills protected expression even apart from any punishments that may result at the end of the process. The University has created and promoted a system in which students can file anonymous reports of “bias” under an amorphous definition based on anything that harms their “feelings,” which will then lead a team of University officials to spring into action to investigate. Students voicing controversial or unpopular opinions, or seeking to engage
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4:18-cv-11451-LVP-EAS Doc # 1 Filed 05/08/18 Pg 20 of 50 Pg ID 20
in humor, satire, or parody, may credibly fear that the BRT will be summoned in response to their speech and that they will be forced to defend themselves against accusations of “bias.” The prospect of facing such an investigation will inevitably lead many students to refrain from speaking altogether, to articulate their views less forcefully, or to steer clear of controversial topics. This chilling of protected speech and expression will exist regardless of whether a student is ultimately exonerated at the end of the BRT process.
67. As Professors Jeffrey Snyder and Amna Khalid recently explained, “the proliferation of [bias response teams] is a grave mistake. They degrade education by encouraging silence instead of dialogue, the fragmentation of campuses into groups of like-minded people, and the deliberate avoidance of many of the most important—and controversial—topics across all academic disciplines. They are inherently antiintellectual enterprises, fundamentally at odds with the mission of higher education. And ultimately they will undermine a bedrock principle of the modern university: that more diversity leads to better learning.” Jeffrey Aaron Snyder & Amna Khalid, The Rise of “Bias Response Teams” on Campus, The New Republic (Mar. 30, 2016), available at https://newrepublic.com/article/132195/rise-bias-response-teams-campus. “[W]ithout the space to debate and argue, students won’t ever be forced to confront the underlying assumptions framing their worldviews.” Id. In short, bias response teams “result in a troubling silence: Students, staff, and faculty [are] afraid to speak their minds, and individuals or groups [are] able to leverage bias reporting policies to shut down
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4:18-cv-11451-LVP-EAS Doc # 1 Filed 05/08/18 Pg 21 of 50 Pg ID 21

unpopular or minority viewpoints.” Id. Bias response teams “substitute diktats for

debate when what we need most is constant, frank conversation.” Id.

68. A recent report from the Foundation for Individual Rights in Education

similarly found that bias response teams lead to “a surveillance state on campus where

students and faculty must guard their every utterance for fear of being reported to and

investigated by the administration.” FIRE, Bias Response Team Report 2017 at 28 (Feb.

2017),

available

at

https://d28htnjz2elwuj.cloudfront.net/wp-

content/uploads/2017/03/01012623/2017-brt-report-corrected.pdf.

“While

universities should certainly be listening to their students and offering resources to

those who encounter meaningful difficulties in their life on campus, the posture taken

by many Bias Response Teams is all too likely to create profound risks to freedom of

expression, freedom of association, and academic freedom on campus.” Id. at 5.

IV. University Policies Are Fostering a Campus Environment That Chills Protected Expression and Fails to Protect Students’ First Amendment Rights.
69. The University’s policies and actions are irreparably harming countless

students who seek to express themselves and voice their opinions without fear of

investigation or punishment. The University’s actions are especially likely to chill or

deter speech on controversial or politically charged topics, as well as humor, satire, and

parody. The result is that all University students lose the opportunity to challenge,

debate, and learn from the views and experiences of their classmates.

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4:18-cv-11451-LVP-EAS Doc # 1 Filed 05/08/18 Pg 22 of 50 Pg ID 22
70. Students at the University have a credible fear that mere expression of certain viewpoints will be treated as “bias,” “hate,” or “bullying,” thereby subjecting them to investigation or discipline by the OSCR or BRT. In a speech attended by more than 1,000 students the night of the 2016 election, Defendant Schlissel stated that “[y]our voices worked out to be a 90/10 decision in favor of the unsuccessful candidate yesterday,” and thus “[n]inety percent of you rejected the kind of hate and the fractiousness and the longing for some kind of idealized version of a non-existent yesterday that was expressed during the campaign.” Schlissel thus appears to have equated support for the winning candidate in the 2016 presidential election with “hate”—which tracks almost verbatim the University’s definitions of the types of action that could subject students to OSCR discipline or an investigation by the BRT.
71. The University has also repeatedly condoned conduct by students that has resulted in the suppression of speech offering disfavored viewpoints or opinions.
72. In October 2017, the University’s chapter of Young Americans for Freedom invited author Charles Murray to an event. Murray’s speech was “met with chants, music, intentionally annoying cell phone sounds, an overhead projector displaying an arrow pointing to him along with the words ‘white supremacist,’ and hostile questions from students.” Despite pleas from the students hosting the event, University officials did nothing to stop this suppression of speech. No student was ever punished for these disruptions.
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73. The Charles Murray event was not an isolated incident. In the fall of 2016, a debate club at the University hosted a discussion of whether “Black Lives Matter is harmful to racial relations in the United States.” Rather than engaging in a frank and candid discussion of this important topic, approximately 400 students “stormed the debate hall chanting, holding signs, and stomping their feet – effectively ending the debate.” No student was ever punished for these disruptions. Indeed, the Central Student Government apparently supported those who disrupted the event, stating that the topic itself was “bigoted” and that holding this debate would “devalue the #BlackLivesMatter movement.”
74. Groups offering views that are disfavored on campus, such as Young Americans for Freedom, College Republicans, and the Michigan Review also routinely have their signs and posters (which are expensive and time-consuming to produce) torn down or defaced. These groups have also faced the theft or vandalism of written materials such as booklets, stickers, and email signup sheets. Ironically, the perpetrators of these acts will often then declare that they have been victims of “hate” or “violence.”
75. As one student from the Class of 2020 explains: “There is a portion of the student body that feels as though the University goes to great lengths to blow their candle out to make others’ brighter…. This is not the campus I thought I was going to be a part of when I came here in the fall. I thought I was coming to a place open to all people from all walks of life with all ideas. It turns out that statement is true, but only if your ideals align with those the University imposed upon us. In other words, people
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have their right to freedom of speech and expression, but only until their beliefs no longer align with the so-called ‘correct’ beliefs, then people are not allowed to freely express those opinions. In one word, this oppression of the diverse thoughts Michigan pushes so greatly is disheartening. I thought I was coming into a place where diversity and debate was encouraged for the intellectual enlightenment of all. I was wrong.”
76. According to another student from the Class of 2019, “[b]orn to immigrant parents and from one of the most liberal cities on the West Coast, I understand how we can disagree politically but be friends, neighbors, family, and part of a welcoming community. That community is not here. It is unacceptable to our peers, students and professors to have a different viewpoint.”
77. Another student expressed similar concerns: “As many signs as there are plastered around campus promoting open discourse, the free spreading of ideas, and embracing diversity, I am taken aback that the university community that I am a part of utterly fails to live up to a single one of those arbitrary claims. I have, until this week, hidden my political views and opinions from nearly everyone I have encountered here at the university. Meanwhile, I have chosen to be tolerant of others as they freely voice opinions diametrically opposed to my own. In my residence hall, I have been relegated to a small private group chat of like-minded individuals, too scared to discuss in public our commonly held beliefs.”
78. According to another student, “Coming from a Hispanic family in Miami, I was completely unaware of how the people in Michigan would act towards Hispanics
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4:18-cv-11451-LVP-EAS Doc # 1 Filed 05/08/18 Pg 25 of 50 Pg ID 25
and I was reassured by a family friend that Michigan was one of the most diverse and inclusive schools in the country. However, once I got on campus, I realized that this could not be further from the truth. I have received more hate in my entire life at this university for my political and religious beliefs than I have for being a Latino in my entire life.”
79. According to another student, “Posters and advertising for conservative student organizations are frequently vandalized and torn down, yet the university only seems to be concerned with the extremely infrequent and isolated instances of racism that are completely uncharacteristic of this campus…. I should be able to openly discuss my political viewpoints in the classroom setting without fear of being academically penalized. I should be able to wear a “Make America Great Again” hat around campus without fear of being attacked (this has happened at a presidential debate watch party)…. I love this university. I love the students here. But I can’t say with any certainty that they love me back. We look just like everyone else, we come from many backgrounds, but our thoughts and opinions are not accepted here.”
80. According to another student, “As an incoming freshman to the University of Michigan, … I eagerly anticipated being part of a community that would challenge my views and allow me to do the same, knowing that I would learn more about others and myself in doing so. This perhaps naive aspiration for my college education was crushed within my first week of classes. My fellow students were intolerant to conservative views and some of my professors condoned and voiced their
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agreement for this intolerance. Since the election of Mr. Donald J. Trump, this attitude has spread and augmented throughout campus. Not only has the University and its president endorsed this intolerance, but it has also been so hypocritical as to preach diversity, equity, and inclusion while doing so.”
81. According to a student in the Class of 2020, “It bothers me that I am willing to accept other people for their political views but do not feel that reciprocated in many instances. In those instances, it usually leads into accusations of me being a racist, deplorable, and ignorant, among other things…. I was talking to a friend in the hallway today, whom also supported Donald Trump, and someone was listening into our conversation. After about thirty seconds of my friend and I having a private discussion, we were both called racists, which is simply not true.”
82. A former student shared similar concerns: “The University has only made it a safe place for those who have the same democratic views that the University promotes. I spent three years of my life at this school scared of speaking out about my political views because I like many republicans would get labeled as a racist, sexist, homophobic person which I am very far from.”
83. As another student explained, “I wear my hat with Trump’s slogan on it, ‘Make America Great Again’, around campus and I might as well be in full KKK ensemble judging by how I am treated. … I will be walking around in the light of day, proudly supporting the next president of the United States, minding my own business, and I have been called every name in the book. I have been shoved, had my hat thrown
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off my head, drinks dumped on me, things knocked out of my hand, been spit on, been told to kill myself, get the f**k off this campus, and much, much more. These actions were performed by fellow students, in the presence of fellow students, and not even once has anyone stepped in to defend me, ask the aggressor to step down, or offer me any sort of support. More often than not, once someone has begun ridiculing me or knocking my hat off, or whatever form of aggression that is taken, people will join in.”
84. Says another Michigan student: “I am disappointed to be a student on a campus where diversity is embraced, unless you are a conservative. If you are a conservative, you are labeled as homophobic, Islamophobic, racist and sexist. I am none of these things. I am simply a student who cannot speak transparently about their views even though I embrace diversity.” V. The University’s Unconstitutional Policies Are Causing Concrete and
Direct Injuries to Speech First’s Members 85. Speech First’s members who attend the University are incurring concrete injuries as a direct result of the University’s unconstitutional policies and actions. 86. One Speech First member (“Student A”) is a rising sophomore at the University. Student A enrolled in the University because he wanted to learn in an intellectually challenging environment in which students and faculty are free to engage in lively, fearless debate and deliberation. 87. Student A has views that are unpopular and in the minority on campus. He has especially strong view about gun rights, illegal immigration, and abortion.
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88. Student A supports President Trump and believes the United States has a moral obligation to build the border wall and deport illegal immigrants. He believes that many illegal immigrants take advantage of government services that are paid for by U.S. taxpayers.
89. Student A believes that #Blacklivesmatter might have once been a good idea, but has devolved into a hateful group that promotes racial division. He believes that #Blacklivesmatter groups on campus have sowed division through intimidation by, for example, disrupting speakers and events and vandalizing student displays.
90. Student A believes that abortion should be illegal. 91. Student A believes that the welfare system is being abused, and that the government should impose work requirements and drug testing on welfare recipients. 92. Student A believes in a race-neutral society in which people receive neither preferences nor penalties based on the color of their skin. He believes that affirmative action undermines a merit-based education system. 93. Student A believes that the “gender identity” movement is seeking to coerce and intimidate others. He does not believe that he should be coerced into referring to a man as a woman simply because the student declares that his gender has now changed. 94. Student A believes that there is no “wage gap” between men and women and that any differences in salary are based on men’s and women’s choices about the
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number of hours they work, the amount of time they spend away from work caring for family, and the types of jobs they choose to do.
95. Student A strongly supports gun rights, and believes anyone who is not found to be dangerous should be able to store and carry semi-automatic weapons, handguns, shotguns, pistols, and rifles.
96. Student A disagrees with students who advocate for views opposing his own. In particular, Student A disagrees with students who believe that women should be permitted to have abortions, who do not support the President, and who advocate for open borders and the protection of illegal immigrants.
97. Student A wants to engage in open and robust intellectual debate with his fellow students about these topics in the classroom, online, in University housing, in other areas of the campus, and in the city of Ann Arbor.
98. Because Student A has strong views on these issues, he wants to speak passionately and repeatedly about these matters. Student A wants to point out the flaws in his fellow students’ arguments and encourage his fellow students to change their minds or, at a minimum, understand his point of view.
99. Student A wants to use humor, satire, and parody to highlight what he believes to be the absurdities in his fellow students’ arguments.
100. Despite these desires, Student A has been chilled and deterred from speaking openly about issues that are important to him.
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101. Student A credibly fears expression of his views may be considered “harassment” or “bullying” under the Statement. He credibly fears that another student will find his views “unwanted,” “demeaning,” or “bothersome,” and will report him to the OSCR. Student A credibly fears that he would be investigated and/or face punishment from the OSCR for articulating his views.
102. Student A also credibly fears that expression of his views may result in other students calling the BRT, thereby subjecting Student A to investigations and potential sanctions such as “restorative justice,” “individual education,” or referral for formal discipline.
103. Under the vague and amorphous definitions the BRT employs, Student A credibly fears that his speech would be deemed a “bias incident.” Countless members of the University community, including faculty, staff, other students—and even the President of the University—have repeatedly stated that views and opinions such as those held by Student A are hateful, racist, bigoted, and misogynistic. Student A thus has a credible fear that forceful expression of his views would lead another student or staff member to report him to the BRT for an “expression of bias” or “bias incident.”
104. The only ways for Student A to avoid these risks of investigation and/or punishment are to refrain from expressing his sincerely held views; to articulate his views less forcefully; or to articulate his opinions only in the company of students who already share his views.
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105. Because of his credible fears that his speech will be deemed “harassment,” “bullying,” or “bias,” Student A voices his opinions only in small groups when he is confident the students listening to his speech will not report him to the BRT or OSCR. When speaking to students he does not know well, Student A tries to avoid controversial topics.
106. Student A also wants to have the opportunity to listen to vigorous debates involving students with opposing views on all sides of controversial issues, and to be exposed to humor, satire, and parody. Yet due to the pervasive speech-chilling effects of the University’s policies and actions, Student A is being deprived of his right to listen, read, and receive speech that might be seen by some as “offensive” or “hurtful.”
107. Another Speech First member (“Student B”) is a rising sophomore at the University. Student B holds views that are unpopular and in the minority on campus.
108. Student B strongly supports the border wall and believes that immigration laws, like all laws, should be strictly and vigorously enforced. He further believes that English should be the official language of the United States for all official documents and communications.
109. Student B believes strongly in welfare reform and work requirements for welfare benefits. He believes that there are significant abuses of welfare programs that need to be reined in.
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110. Student B believes that it is irresponsible for people to have children out of wedlock, and that people who have children out of wedlock contribute to a number of major social problems.
111. Student B believes that aborting any baby after 12 weeks is murder and that certain types of abortion practices are morally indistinguishable from genocide.
112. Student B believes that it is biologically impossible for a person to change or “transition” their gender. He believes that a person may seek to appear as someone from the opposite gender, but cannot change the fact that he or she is biologically male or biologically female.
113. Student B believes that the much-touted “wage gap” between men and women is a myth and is based on overly simplistic calculations that do not account for critical factors such as hours worked and choice of occupation.
114. Student B believes that Title IX has gone much too far in forcing universities to drop men’s athletic programs. He also believes that the conventional narrative about an “epidemic” of sexual assault on campuses has been blown out of proportion. Student B further believes that any accusations of sexual assault should be addressed by the police, not by universities.
115. Student B believes passionately in the Second Amendment. He believes that anyone who has not committed a violent crime should be able to own a firearm, including automatic firearms. He believes that both open carry and concealed carry should be allowed on the University’s campus.
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116. Student B recognizes that race and ethnicity exist and play specific roles within society. However, Student B also believes that such roles should not include any benefits or detriments based on an individual’s racial background, particularly in government and university programs.
117. Student B believes that satire, parody, and humor can be especially effective tools for making an argument.
118. Student B wants to engage in open and robust intellectual debate with his fellow students about his beliefs in the classroom, online, in University housing, in other areas of the campus, and in the city of Ann Arbor. Because Student B believes in these topics, he wants to speak passionately and regularly about these issues. Student B wants to point out the flaws in his fellow students’ arguments and encourage his fellow students to change their minds about these topics or, at a minimum, understand his point of view.
119. Student B credibly fears that articulation of his strongly held views—or using humor, satire, or parody to point out the absurdities of contrary views—could be deemed “harassment,” “bullying,” or a “bias incident.” Student B fears that articulation of these views could lead him to be reported, investigated, and potentially punished by the OSCR or the BRT.
120. Because of these credible fears of investigation and/or punishment, Student B largely keeps his views to himself and does not forcefully articulate his views in the presence of students who may disagree with him.
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121. Another Speech First member (“Student C”) is a rising senior at the University and writes for one of the campus newspapers.
122. Student C values an open exchange of ideas on campus, and thinks that controversial points of view must be confronted directly. For example, Student C wrote an article defending a highly unpopular speaker’s right to lecture on campus. But due to fear of backlash or bias reporting, Student C published that article anonymously.
123. Student C often hears professors and students disparage the Western canon due to its authorship by “dead white men.” Student C believes that canonical writers and thinkers offer important views and are worth studying. Student C also disagrees with what he sees as the gratuitous insertion of identity politics into discussions of topics such as Shakespeare’s plays. In both cases, however, Student C refrains from voicing his views due to a credible fear that he will be accused of racism or sexism and reported to the bias response team.
124. Student C disagrees with many of the University’s “diversity” initiatives. But when Student C has previously voiced those opinions, he was publicly accused of racism by other students. Student C thus credibly fears that he will be reported to the bias response team or the OSCR if he expresses similar views in the future.
125. Student C wants to use humor, satire, and parody in discussions and debates with fellow students without fear of punishment for making statements that might be perceived as offensive.
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126. Student C wants to be able to articulate his views publicly under his own name, without having to write anonymously due to fear of being accused of harassment, bullying, or a bias incident.
127. Student C wants to engage in open and robust intellectual debate with his fellow students about his beliefs in the classroom, online, in University housing, in other areas of the campus, and in the city of Ann Arbor.
128. To avoid the risk of an investigation or punishment, or harassment from fellow students, Student C simply refrains from discussing many controversial topics. The University’s policies and actions are chilling Student C from engaging in open discussion of controversial issues and are denying him the opportunity to hear views that differ from the campus orthodoxy.
129. Student A, Student B, and Student C are examples of Speech First members at the University who are suffering concrete harm to their First and Fourteenth Amendment rights as a direct result of Defendants’ actions.
130. Student A, Student B, and Student C face a credible threat that the speech in which they seek to engage would be considered “harassment,” “bullying,” or a “bias incident” and would lead to investigation or punishment by the BRT and/or the OSCR. Indeed, Defendant Schlissel has prominently announced that certain political views, such as some of the views held by Students A, B, and C, are tantamount to “hatred.”
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COUNT I Violation of the First Amendment (Harassment/Bullying Speech Code)

131. Plaintiff repeats and realleges each of the foregoing allegations in this

Complaint.

132. The First Amendment prohibits State officials at public universities from

adopting regulations that outlaw certain student conduct when the regulation “is so

broad as to chill the exercise of free speech and expression.” Dambrot v. Cent. Michigan

University, 55 F.3d 1177, 1182 (6th Cir. 1995).

133. “Because First Amendment freedoms need breathing space to survive, a

state may regulate in the area only with narrow specificity.” Gooding v. Wilson, 405 U.S.

518, 522 (1972). A public university must carefully craft its regulations “to punish only

unprotected speech and not be susceptible of application to protected expression.” Id.

134. “‘[I]f it is the speaker’s opinion that gives offense, that consequence is a

reason for according it constitutional protection.’” Bible Believers v. Wayne Cty., Mich., 805

F.3d 228, 243 (6th Cir. 2015) (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55

(1988)). Moreover, humor, satire, and parody play an important role in a democratic

society, and “it is clear that our political discourse would have been considerably poorer

without them.” Hustler Magazine, Inc., 485 U.S. at 55-56. It is thus “firmly settled” that

“the public expression of ideas may not be prohibited merely because the ideas are

themselves offensive to some of their hearers.” Street v. New York, 394 U.S. 576, 592

(1969).

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135. A regulation is unconstitutionally overbroad if “a substantial number of instances exist in which the [regulation] cannot be applied constitutionally.” Speet v. Schuette, 726 F.3d 867, 872 (6th Cir. 2013). The Court must find such regulations facially unconstitutional because “the threat of enforcement of an overbroad [regulation] may deter or ‘chill’ constitutionally protected speech,” as “[m]any persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech, harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas.” Virginia v. Hicks, 539 U.S. 113, 119 (2003).
136. Moreover, “regulations that prohibit speech on the basis of listener reaction alone are unconstitutional both in public high school and university settings.” Bair v. Shippensburg Univ., 280 F. Supp. 2d 357, 369 (M.D. Pa. 2003). The government may not prohibit speech “based solely on the emotive impact that its offensive content may have on a listener.” Saxe v. State College Area School Dist., 240 F.3d 200, 209 (3d Cir. 2001) (Alito, J.).
137. The Statement’s bans on “harassment” and “bullying”—and its recent amendment imposing additional penalties for “bias-motivated misconduct”—are unconstitutionally overbroad because a substantial number of instances exist in which those prohibitions would reach speech or expression the First Amendment protects.
138. The Statement bans “[h]arassing or bullying another person—physically, verbally, or through other means.” The Expect Respect initiative, in turn, has adopted
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an amorphous and expansive interpretation of “harassment,” defining that term as “unwanted negative attention perceived as intimidating, demeaning, or bothersome to an individual.” In other words, a student may violate the ban on so-called harassment if he or she engages in “unwanted” “verbal[]” conduct (i.e., speech) that another student perceives as being “demeaning” or “bothersome.”
139. The April 2018 amendment to the Statement adds another offense and further increases the potential penalties if a student engages in “harassment” or “bullying” while “motivated by bias” on the basis of “race, color, national origin, age, marital status, sex, sexual orientation, gender identity, gender expression, disability, religion, height, weight, or veteran status.”
140. The University’s ban on “harassment” could be applied to a wide swath of protected expression and is thus unconstitutionally overbroad. There are countless instances in which a student’s protected speech or expression about matters such as race, sex, gender identity, immigration, religion, politics, and numerous other topics may be perceived by another student as “demeaning” or “bothersome.” Similarly, many students may find protected expression involving humor, satire, or parody to be “demeaning” or “bothersome.”
141. The Statement’s prohibition on “bullying” also is unconstitutionally overbroad. The Statement does not define “bullying,” but it does cite a definition from Merriam-Webster’s Dictionary defining that term as: “(1) to frighten, hurt, or threaten (a smaller weaker person), (2) to act like a bully toward (someone), (3) to cause
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(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.” A student could thus be reported, investigated, and punished for “bullying” if she “verbally” or through “other means” (e.g., the Internet) engages in protected speech or expression that another student finds “frightening,” “abusive,” or “hurtful.”
142. The Statement’s recently enacted penalty enhancement for “bias-related misconduct” also is unconstitutionally overbroad. The University defines “bias” as “a pre-formed negative opinion or attitude toward a group of persons who possess common physical characteristics, such as skin color; or cultural experiences, such as religion or national origin.” There are countless instances of protected speech in which a student might express a “negative opinion” about a group of people with shared “cultural experiences” that another student would find to be “demeaning” or “bothersome”— e.g., the statement “the federal government should deport more illegal immigrants” could certainly be seen as “demeaning” or “bothersome” to students with the shared “cultural experience” of having undocumented immigrants in their families or communities.
143. The Statement’s prohibitions on “harassment,” “bullying,” and “biasrelated misconduct” likewise are unconstitutionally overbroad because they punish speech or expression based on the reaction of the listener.
144. The threat of potentially serious penalties for “harassment” or “bullying” is chilling Plaintiff’s members and countless other students from speaking openly and
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forcefully about matters of public concern, especially matters that are seen as sensitive or controversial. And the Statement’s new prohibition on “bias-related misconduct,” which goes into force on July 1, 2018, will only exacerbate that chilling effect by further increasing the potential penalties for offenses that can include protected expression.
145. The chilling effect from the Statement’s overbroad prohibitions on “harassment,” “bullying,” and “bias-related misconduct” also is depriving Plaintiff’s members and other students of their right to be exposed to speech and expression that is protected by the First Amendment but is being stifled due to Defendants’ unconstitutional actions.
146. Defendants adopted these unconstitutional policies and took these unconstitutional actions while acting under color of state law.
COUNT II Violation of the First and Fourteenth Amendments – Void-for-Vagueness
(Harassment/Bullying Speech Code) 147. Plaintiff repeats and realleges each of the foregoing allegations in this Complaint. 148. “It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). “[T]he vagueness doctrine has two primary goals: (1) to ensure fair notice to the citizenry and (2) to provide standards for enforcement [by officials].” Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 551 (6th Cir. 2007).
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149. “With respect to the first goal, … [a] statute which either forbids or requires the doing of an act in terms so vague that [individuals] of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Id. (citation omitted).
150. “With respect to the second goal, … if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to [officials] for resolution on an ad hoc and subjective basis.” Id. (citation omitted).
151. This principle of clarity is especially demanding when First Amendment freedoms are at stake. If the challenged law “interferes with the right of free speech or of association, a more stringent vagueness test should apply.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982). “Certainty is all the more essential when vagueness might induce individuals to forego their rights of speech, press, and association for fear of violating an unclear law.” Scull v. Commonwealth of Va. ex rel. Comm. on Law Reform and Racial Activities, 359 U.S. 344, 353 (1959); see also Leonardson v. City of East Lansing, 896 F.2d 190, 195-96 (6th Cir. 1990) (considering whether the challenged policy “provides fair notice of the standard of conduct to which a citizen is held accountable,” or instead “leaves the definition of its terms to law enforcement officers, and thereby invites arbitrary, discriminatory, and overzealous enforcement”).
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152. The Statement’s prohibitions on “harassment,” “bullying,” and “biasrelated misconduct” are unconstitutionally vague because they impose potentially severe penalties—up to and including expulsion from the University—based on terms so vague that students of ordinary intelligence have no clear or meaningful standards or guidance about the line between permissible and prohibited conduct.
153. The absence of any clear or meaningful standards for “harassment,” “bullying,” and “bias-related misconduct” results in a serious risk that these prohibitions will be enforced in an arbitrary or discriminatory manner, or will be used to target speech based on the viewpoint the speaker expresses.
154. Due to the inherent vagueness of the prohibitions on “harassment,” “bullying,” and “bias-related misconduct,” Plaintiff’s members and many other students will choose not to speak about certain topics, or to speak less forcefully, to avoid the risk of an investigation or punishment for their speech.
155. Defendants adopted these unconstitutionally vague prohibitions under color of state law.
COUNT III Violation of the First Amendment
(Bias Response Team) 156. Plaintiff repeats and realleges each of the foregoing allegations in this Complaint. 157. The definitions of “bias” and “bias incident,” as enforced by the University’s Bias Response Team, are unconstitutionally overbroad because a
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substantial number of instances exist in which those prohibitions cannot be applied consistent with the First Amendment.
158. The University defines “bias” as “a pre-formed negative opinion or attitude toward a group of persons who possess common physical characteristics, such as skin color; or cultural experiences, such as religion or national origin.” According to the University, such “bias” “often stems from fear, misunderstanding, hatred, and stereotypes, and may be intentional or unintentional.”
159. The University has further defined “bias incident” as “non-criminal activity committed against a person or property that is motivated, in whole or in part, by the offender’s bias against a race, color, ethnicity, national origin, sex, gender identity or expression, sexual orientation, disability, age or religion.” The BRT’s website similarly defines “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).”
160. The University has emphasized that “[b]ias comes in many forms,” and “can be a hurtful action based on who someone is as a person.” According to the University, “[t]he most important indication of bias is your own feelings.” And the University has emphasized that “[b]ias-related incidents … do not always result in unfair treatment that violates nondiscrimination laws.”
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161. Under the University’s definitions, in short, a student may be deemed to have committed a “bias incident” if he or she engages in an “activity” (i.e., speech) that is motivated by the student’s “negative opinion or attitude” toward a group of people with shared “cultural experiences” if such activity is “hurtful” to someone’s “feelings.”
162. These expansive and highly subjective definitions of “bias” and “bias incident” can unquestionably extend to protected speech and expression. Under these definitions, speech critical of certain tenets of the Islamic faith could be deemed “hurtful” to Muslims. Speech questioning whether a biological man can actually transition to a woman could be deemed “hurtful” to transgender students. Speech criticizing the tactics or methods of the #Blacklivesmatter movement could be deemed “hurtful” to African-American students. Speech encouraging a tough policy towards illegal immigration could be deemed “hurtful” to Latino students. And protected speech involving humor, satire, or parody is particularly likely to cause offense to some group of students and thus be deemed a “bias incident.”
163. There is a credible threat that the BRT will take action to punish students, including Plaintiff’s members, for protected expression. The University has actively encouraged students to report alleged “bias incidents” to the BRT. The BRT then conducts an investigation, which may result in “restorative justice,” “unconscious bias training,” “individualized education,” or a referral to the University’s formal disciplinary system.
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164. Informal discipline such as “individualized education,” “unconscious bias training,” or “restorative justice” imposes First Amendment harms every bit as serious as formal punishment such as a reprimand or suspension. A student may accept such lesser sanctions to avoid even the mere threat of being referred for formal discipline. And these measures impose unwanted burdens on students’ time, distract them from their studies and other activities, and stigmatize students for having engaged in purported wrongdoing.
165. Moreover, even apart from any formal or informal sanctions at the end of the BRT process, the mere threat of being investigated by the BRT (which includes university officials and law enforcement officers) for alleged incidents of bias will cause many students to err on the side of caution before expressing an opinion that could cause someone to take offense. The University and several student groups broadly promote the BRT and encourage aggressive reporting of “bias incidents.”
166. In sum, the BRT and its expansive definitions of “bias” and “bias incident” unquestionably reach a substantial amount of constitutionally protected speech and expression. These policies and procedures are chilling Plaintiff’s members and countless other students from speaking openly and forcefully about matters of public concern, especially matters that are seen as controversial or sensitive.
167. In addition to being overbroad and highly subjective, these prohibitions impermissibly define “bias” and “bias incident” based on the reaction of the listener.
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168. The chilling effect of the BRT’s overbroad prohibitions on “bias incidents” also is depriving Plaintiff’s members and other students of their right to be exposed to speech and expression that is protected by the First Amendment but is being stifled due to Defendants’ unconstitutional actions.
169. Defendants adopted these unconstitutional policies and took these unconstitutional actions while acting under color of state law.
COUNT IV Violation of the First and Fourteenth Amendments – Void-for-Vagueness
(Bias Response Team) 170. Plaintiff repeats and realleges each of the foregoing allegations in this Complaint. 171. The BRT’s definitions of “bias” and “bias incident” are unconstitutional because they employ terms so vague that students of ordinary intelligence have no clear or meaningful standards or guidance about the line between permissible and prohibited conduct. 172. Based on these hopelessly vague definitions, the BRT can subject students to burdensome investigations; impose sanctions such as “restorative justice,” “individual education,” or “remediation”; or refer students to the OSCR for formal disciplinary proceedings. 173. The absence of any clear or meaningful standards for “bias” and “bias incidents” results in a serious risk that these prohibitions will be enforced in an arbitrary
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or discriminatory manner, or will be used to target speech based on the viewpoint expressed.
174. Due to the vagueness of the concepts of “bias” and “bias incident,” Plaintiff’s members and many other students will choose not to speak about certain topics, or to speak less forcefully, in order to avoid the risk of an investigation by the BRT or punishment for their speech.
175. Defendants adopted these unconstitutionally vague prohibitions under color of state law.
COUNT V Violation of the First Amendment – Prior Restraint of Speech
(Bias Response Team) 176. Plaintiff repeats and realleges each of the foregoing allegations in this Complaint. 177. The First Amendment prohibits State officials from using “administrative methods to prevent the dissemination of ideas or opinions thought dangerous or offensive.” Backpage.com, LLC v. Dart, 807 F.3d 229, 235 (7th Cir. 2015). “Threatening penalties for future speech goes by the name of ‘prior restraint,’ and a prior restraint is the quintessential first-amendment violation.” Id (citation omitted). 178. State officials violate the First Amendment when their actions or statements “can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow” if the individual engages in protected speech. Okwedy v. Molinari, 333 F.3d 339, 342 (2d Cir. 2002).
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179. Because prior restraints of speech are “the essence of censorship,” Near v. Minnesota, 283 U.S. 697, 713 (1931), and “the most serious and the least tolerable infringement on First Amendment rights,” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976), “[a]ny system of prior restraints of expression … bears a heavy presumption against its constitutional validity.” Bantam Books, 372 U.S. at 70. “Prior restraints of free speech require the most exigent circumstances for justification.” ACLU v. City of Pittsburgh, 586 F. Supp. 417, 421 (W.D. Pa. 1984).
180. Defendants have violated the First Amendment because they have used administrative methods, including the operation of the BRT, to prevent the dissemination of ideas and opinions that the University deems offensive.
181. Students engaging in protected speech or expression about controversial or sensitive topics face a credible risk that their speech will be reported to the BRT and that the students will face burdensome investigations or administrative proceedings to respond to allegations of “bias.”
182. Even if such students are ultimately exonerated, the BRT operates as an unconstitutional prior restraint by forcing students to undergo a burdensome administrative process in order to obtain permission to speak.
183. Defendants adopted this unconstitutional mechanism while acting under color of state law.
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WHEREFORE, Plaintiff Speech First, Inc. respectfully requests that this Court enter judgment in Plaintiff’s favor and against Defendants and provide the following relief:
A. A declaratory judgment that the Statement’s prohibitions on “harassment” and “bullying”—and its recently adopted amendments prohibiting “bias-related misconduct”—violate the First and Fourteenth Amendments;
B. A declaratory judgment that the BRT and its prohibitions on “bias” and “bias incidents” violate the First and Fourteenth Amendments;
C. A permanent injunction prohibiting Defendants from taking any actions to investigate, threaten, or punish students for violations of the Statement’s prohibitions on “harassment,” “bullying,” and “bias-related misconduct”;
D. A permanent injunction prohibiting Defendants from using the BRT to investigate, threaten, or punish students (including informal punishments such as “restorative justice” or “individual education”) for “bias incidents”;
E. A preliminary injunction granting the relief specified above during the pendency of this action;
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F. Plaintiff’s reasonable costs and expenses of this action, including attorneys’ fees, in accordance with 42 U.S.C. 1988 and all other applicable laws; and
G. All other further relief to which Plaintiff might be entitled. Respectfully submitted,

Dated: May 8, 2018

/s/ John A. Di Giacomo John A. Di Giacomo (P73056) REVISION LEGAL, PLLC 5024 Territorial Road Grand Blanc, MI 48439 (231) 714-0100 john@revisionlegal.com
Local Counsel
William S. Consovoy (application for admission forthcoming) Jeffrey M. Harris (application for admission forthcoming) J. Michael Connolly (application for admission forthcoming) CONSOVOY MCCARTHY PARK PLLC 3301 Wilson Boulevard Suite 700 Arlington, VA 22201 (703) 243-9423
Counsel for Plaintiff Speech First, Inc.

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 Case 4:18-cv-11451-LVP-EAS ECF No. 14 filed 06/11/18 PageID.302 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

SPEECH FIRST, INC., Plaintiff,
v.
MARK SCHLISSEL, et al., Defendants.

) ) ) ) ) Civil Action No. ) 2:18-cv-11451-LVP-EAS ) ) ) )

UNITED STATES’ STATEMENT OF INTEREST IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

Case 4:18-cv-11451-LVP-EAS ECF No. 14 filed 06/11/18 PageID.303 Page 2 of 31
TABLE OF CONTENTS PAGE
INTEREST OF THE UNITED STATES…………………………………………. 4 BACKGROUND...………………….........................................................…….…. 6 ARGUMENT……………………………………………………………….……. 11 I. BY THEIR TERMS, THE UNIVERSITY’S PROHIBITIONS ON
“HARASSING,” “BULLYING,” “BIAS-RELATED MISCONDUCT,” AND “BIAS INCIDENTS” VIOLATE THE FIRST AMENDMENT ........................................................................................... 13
A. The Statement’s Bans On “Harassing,” “Bullying,” And “BiasMotivated Misconduct” Are Overbroad And Void For Vagueness... 15
B. The Bias Response Policy Is Unconstitutionally Overbroad And Void For Vagueness................................................................... 22
CONCLUSION...................................................................................................... 25
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TABLE OF AUTHORITIES

CASES:

PAGE

Baggett v. Bullitt, 377 U.S. 360 (1964) .............................................................. 3, 21

Broadrick v. Oklahoma, 413 U.S. 601 (1973) .............................................. 3, 14, 21

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) ..............................................12

Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998)..............................11

Dambrot v. Central Mich. Univ., 55 F.3d 1177 (6th Cir. 1995)...................... passim

Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999) ................................ 12, 16

DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008)................. 16, 18, 19, 25

Doe v. Univ. of Mich., 721 F. Supp. 852 (E.D. Mich. 1989) ...................... 13, 18, 19

Forsyth Cty. v. Nationalist Movement, 505 U.S. 123 (1992) .......................... passim

Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) ...............................................16

Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589 (1967) ...............................................................................................5

Leonardson v. City of East Lansing, 896 F.2d 190 (6th Cir. 1990) ................ passim

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, No. 16-111, Slip Op. (U.S. June 4, 2018) ..............................................................4

McCauley v. Univ. of the Virgin Islands, 618 F.3d 232 (3d Cir. 2010) ........... 23, 24

NAACP v. Button, 371 U.S. 415 (1933)...................................................................14

Niemotko v. Maryland, 340 U.S. 268 (1951)...................................................... 3, 21

R.A.V. v. City of St Paul, 505 U.S. 377 (1992) ................................................. 12, 20

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CASES (continued):

PAGE

Saxe v. State College Area Sch. Dist., 240 F.3d 200 (3d Cir. 2001) .... 11, 12, 17, 20

Shelton v. Tucker, 364 U.S. 479 (1960).....................................................................5

Street v. New York, 394 U.S. 576 (1969) .......................................................... 12, 20 Sweezy v. State of New Hampshire by Wyman, 354 U.S. 234 (1957) .......................2 Texas v. Johnson, 491 U.S. 397 (1989) ........................................................ 3, 11, 20

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) ........... 6, 12, 20 Virginia v. Black, 538 U.S. 343 (2003) ...................................................................12 Widmar v. Vincent, 454 U.S. 263 (1981)...................................................................4 Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008).........................................11

STATUTES:

PAGE

18 U.S.C. § 249........................................................................................................12

20 U.S.C. § 1011a(a)(2) .............................................................................................2

28 U.S.C. § 517..........................................................................................................1

42 U.S.C. § 1681(a) ...................................................................................................5

42 U.S.C. § 2000c-6...................................................................................................5

42 U.S.C. § 2000d......................................................................................................5

42 U.S.C. § 2000h-2...................................................................................................5

42 U.S.C. §§ 12132-12133 ........................................................................................5

OTHER AUTHORITIES:

PAGE

Virginia Resolutions (Dec. 21, 1798), in 5 THE FOUNDERS’ CONSTITUTION, 135, 136 (Philip B. Kurland & Ralph Lerner, eds., 1987) .............................................4

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The University of Michigan (“University”) proclaims on its website that “[f]reedom of speech is a bedrock principle of [its] community and essential to [its] core educational mission as a university.”1 Unfortunately, the University is failing to live up to that laudable principle. Instead of protecting free speech, the University imposes a system of arbitrary censorship of, and punishment for, constitutionally protected speech. The University’s policies prohibit speech that any listener finds “bothersome” or “hurtful”—an overbroad, vague, and subjective standard that is a paradigmatic example of the chilling of free expression prohibited by the First Amendment. Universities have a crucial legal obligation to protect students from harassment and harm, and wide latitude to promote tolerance and respectful dialogue on their campuses. But state-run institutions like the University also must uphold the bedrock guarantees enshrined in the First Amendment. The University’s policies, even if well-intentioned, fail in this regard—they violate the Constitution’s free speech guarantee and should be enjoined.
The United States respectfully submits this Statement of Interest under 28 U.S.C. § 517, which authorizes the Attorney General “to attend to the interests of the United States in a suit pending in a court of the United States.” The United States is resolutely committed to protecting First Amendment freedoms and to ensuring, as
1 Free Speech on Campus, available at https://publicaffairs.vpcomm.umich.edu/free-speech-on-campus/ (last viewed June 8, 2018).
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Congress has directed, that public “institution[s] of higher education . . . facilitate the free and open exchange of ideas.” 20 U.S.C. § 1011a(a)(2). In the United States’ view, Plaintiff Speech First, Inc., has established that it is likely to succeed on the merits of its claim that the University of Michigan’s Statement of Student Rights and Responsibilities (“Statement”) and Bias Response Policy are facially unconstitutional under the First and Fourteenth Amendments.
“The essentiality of freedom in the community of American universities is almost self-evident.” Sweezy v. State of New Hampshire by Wyman, 354 U.S. 234, 250 (1957). “Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” Id. Unfortunately, the University’s Statement and Bias Response Policy are eroding that fundamental freedom and chilling the very free and open exchange of ideas that should define American university life for faculty and students alike.
In particular, the University’s policies authorize University officials to dispense disciplinary consequences against a speaker who engages in constitutionally protected speech based on nothing more than a listener’s “feelings” that the speech was “hurtful” or “bothersome.” The University’s policies thus do precisely what the First Amendment forbids: they ban a broad swath of core protected speech based solely on “[l]isteners’ reaction,” Forsyth Cty. v. Nationalist
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Movement, 505 U.S. 123, 134 (1992), that the speech is somehow “offensive or disagreeable,” Texas v. Johnson, 491 U.S. 397, 414 (1989).
The University’s violation of the First Amendment does not end there. The University has also declined to bind itself to any definitions for key terms in the Statement, let alone “narrowly drawn, reasonable, and definite standards for [University] officials to follow” in enforcing it. Niemotko v. Maryland, 340 U.S. 268, 271 (1951). Instead, the University has identified only “example” definitions that University officials may or may not adhere to in applying the Statement’s proscriptions on and punishments of speech. Accordingly, individuals “of common intelligence must necessarily guess at” the parameters of the Statement’s speech prohibitions, Broadrick v. Oklahoma, 413 U.S. 601, 607 (1973), and are being forced to limit their speech and “‘steer far wider of the unlawful zone,’ than if the boundaries of the forbidden areas were clearly marked,” Baggett v. Bullitt, 377 U.S. 360, 372 (1964). And members of the University community engage in such speech activities at the peril of potentially “arbitrary, discriminatory, and overzealous enforcement” by University officials, who may apply any definition or no definition at all to the Statement’s key terms—or even different definitions across cases based on their own personal approval or disapproval of the challenged speech. Leonardson v. City of East Lansing, 896 F.2d 190, 196 (6th Cir. 1990) (internal quotation marks omitted). But as the Supreme Court reaffirmed just last week, “it is not, as the Court
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has repeatedly held, the role of the State or its officials to prescribe what shall be offensive.” Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, No. 16111, Slip Op. at 16 (U.S. June 4, 2018).
The First Amendment demands more. The Court should apply the Constitution’s guarantee of free and open discourse on public campuses and hold that the challenged portions of the Statement and the Bias Response Policy are unconstitutional.
INTEREST OF THE UNITED STATES The United States has an interest in protecting the individual rights guaranteed by the First Amendment. The right to free speech lies at the heart of a free society and is an “effectual guardian of every other right.” Virginia Resolutions (Dec. 21, 1798), in 5 THE FOUNDERS’ CONSTITUTION, 135, 136 (Philip B. Kurland & Ralph Lerner, eds., 1987). State-run colleges and universities are no exception from this rule because “the campus of a public university, at least for its students, possesses many of the characteristics of a public forum.” Widmar v. Vincent, 454 U.S. 263, 267 n.5 (1981). Thus, public universities have “an obligation to justify [their] discriminations and exclusions under applicable constitutional norms.” Id. at 267. The United States has a significant interest in the vigilant protection of constitutional freedoms in institutions of higher learning. In recent years, many institutions of higher education have failed to uphold these freedoms, and free
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speech has come under attack on campuses across the country. Such failure is of grave concern because freedom of expression is “vital” on campuses, Shelton v. Tucker, 364 U.S. 479, 487 (1960), which are “peculiarly the ‘marketplace of ideas,’” Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 603 (1967).
The United States also has a significant interest in ensuring that colleges and universities, including recipients of federal funds, do not discriminate in their educational programs. The Attorney General is charged with enforcing laws to address such discrimination—including a university’s failure to address actionable harassment that creates a hostile environment based on race, color, national origin, sex, religion, or disability. See, e.g., 42 U.S.C. § 2000d; 42 U.S.C. § 2000h-2; 42 U.S.C. § 2000c-6; 42 U.S.C. § 1681(a); 42 U.S.C. §§ 12132-12133. Universities therefore are obligated to provide non-discriminatory educational environments to their students while also protecting First Amendment freedoms that are the hallmark of our public institutions of higher learning.
It is in the interest of the United States to lend its voice to enforce First Amendment rights on campuses because “‘[t]he Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, (rather) than through any kind of authoritative selection.’” Keyishian, 385 U.S. at 603. “[O]ur history says that it is
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this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508-09 (1969).
BACKGROUND The University’s Statement lays out “the rights and responsibilities of membership in the University’s academic and social community.” Doc. 4-2, Ex. A, at 1. The Statement “describes possible behaviors which are inconsistent with the values of the University; it outlines procedures to respond to such behaviors; and it suggests possible sanctions/interventions which are intended to educate and to safeguard members of the University community.” Doc. 4-2, Ex. A, at 1. The Statement directs that various “sanctions/interventions may be recommended” for violations, including “Formal Reprimand,” “Disciplinary Probation,” “Restitution,” “Restriction from Employment at the University,” “Class/Workshop Attendance,” “University Housing Transfer or Removal,” “Suspension,” and “Expulsion.” Doc. 4-2, Ex. A, at 9-10. Section IV of the Statement, titled “Violations,” identifies “behaviors” that “contradict the values of the University community and are subject to action under the Statement.” Doc. 4-2, Ex. A, at 3. One of those “behaviors” is “[h]arassing or
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bullying another person—physically, verbally, or through other means.” Doc. 4-2,
Ex. A, at 3.
The Statement does not define “[t]he terms associated with the Statement,”
including “harassing” or “bullying.” Doc. 4-2, Ex. B, at 1, 6-7. Instead, the
Statement links to a smattering of definitions—from such disparate sources as the
Merriam-Webster Dictionary, other University policies, and Michigan state law—
“as examples of various interpretations that exist for terms used in the Statement.”
Doc. 4-2, Ex. B, at 1. Those definitions identify four “interpretations” of
“harassing,” including one two-part alternative definition. Doc. 4-2, Ex. B, at 6-7.
Those “example” definitions include:
 Merriam-Webster Dictionary: Harassing: (1) to annoy persistently (2) to create an unpleasant or hostile situation for, especially by uninvited and unwelcome verbal or physical conduct.
 University Policies (Expect Respect Initiative): Harassment: unwanted negative attention perceived as intimidating, demanding, or bothersome to an individual.
 University Policies: Discriminatory harassment: Verbal or physical conduct by a member of the faculty or staff that is based upon race, color, creed, religion, national origin, sex, sexual orientation, ancestry, age, marital status, handicap or Vietnam-era veteran status.
 Michigan State Law: Harassment: means conduct directed toward a victim that includes, but is not limited to, repeated or continuing unconsented contact that would cause a reasonable individual to suffer emotional distress and that actually causes the victim to suffer emotional distress. Harassment does not include constitutionally protected activity or conduct that serves a legitimate purpose.
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The Statement also links to two “example” definitions of “bullying.” Doc. 42, Ex. B, at 1. One of those example definitions is a four-part alternative definition from Michigan state law. Doc. 4-2, Ex. B, at 6. The other is a five-part alternative definition from the Merriam-Webster Dictionary that defines “bullying,” in part, as (1) “to frighten, hurt, or threaten (a smaller or weaker person)” or (2) “to treat abusively.” Doc. 4-2, Ex. B, at 6.
The University has announced new amendments to the Statement effective July 1, 2018. Doc. 4-2, Ex. K, at 1. Those amendments add “bias-motivated misconduct” as “a separate violation of the University community’s values.” Doc. 4-2, Ex. K, at 1. The “misconduct” referred to in “bias-motivated misconduct” is a violation of the Statement, such as “harassing” or “bullying.” Doc. 4-2, Ex. K, at 2. “Bias-motivated” encompasses “behavior motivated on the basis of any person’s identity as protected by the University of Michigan’s Nondiscrimination Policy (race, color, national origin, age, marital status, sex, sexual orientation, gender identity, gender expression, disability, religion, weight, or veteran status).” Doc. 42, Ex. K, at 1-2. The amendments provide that “[s]anctions” for violations of the Statement—including “harassing” and “bullying”—“may be enhanced in instances of bias-motivated misconduct.” Doc. 4-2, Ex. K, at 2. Thus, under the amendments, a student who engages in a single episode of constitutionally protected speech could
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be sanctioned once for “harassing” or “bullying” and again for “bias-motivated misconduct.” Doc. 4-2, Ex. K, at 1-2.
The University also has created a mechanism (“Bias Response Policy”) to address “bias incidents.” Doc. 4-2, Ex. F, at 1. The Bias Response Policy defines “bias incident” to encompass “non-criminal activities that harm another” based on their identity, Doc. 4-2, Ex. H, at 4, and “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),” Doc. 4-2, Ex. F, at 1. According to the University’s Expect Respect Initiative, “bias” is “a pre-formed negative opinion or attitude toward a group of persons who possess common physical characteristics, such as skin color; or cultural experiences, such as religion or national origin.” Doc. 4-2, Ex. E, at 1. The Bias Response Policy states that “[b]ias often stems from fear, misunderstanding, hatred, and stereotypes that may be intentional or unintentional.” Doc. 4-2, Ex. F, at 1. It emphasizes that “[b]ias comes in many forms” and “can be hurtful action based on who someone is as a person,” and it tells students that “[t]he most important indication of bias is your own feelings.” Doc. 4-2, Ex. F, at 3.
The University has created the “Bias Response Team” (“BRT”) to oversee “the response and management of bias incidents.” Doc. 4-2, Ex. F, at 1. The BRT is comprised of University administrators and law enforcement, and may also
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include students and “community representatives who serve the U-M community.” Doc. 4-2, Ex. F, at 1. The BRT is authorized to impose “a range of remedies” for “bias incidents,” including “disciplinary action,” Doc. 4-2, Ex. H, “individual education,” Doc. 4-2, Ex. I, or “restorative justice,” Doc. 4-2, Ex. L. To date, the BRT has investigated and responded to more than 150 reports of “expressions of bias” in a wide array of forums and touching on a broad range of subjects, including race, religion, sexual orientation, color, national origin, sex, disability, socioeconomic status, organizational affiliation, political status, “race/politics,” “cultural appropriation,” and “gender expression.” Doc. 4-2, Ex. J.
The University has also promulgated a Freedom Of Speech And Artistic Expression Policy. See University Of Michigan, Standard Practice Guide Policy 601.1: Freedom Of Speech And Artistic Expression, available at http://spg.umich.edu/policy/601.01 (last visited June 8, 2018) (cited at Defs.’ Mot. For Extension Of Time ¶ 2 (Doc. 9)). That policy, however, does “not cover . . . verbal harassment directed at individuals where there is no intent to communicate publicly or with a wider audience.” Id. That policy “do[es] not apply to the classroom” or provide “general guidelines concerning freedom of expression among individuals.” Id. Instead, that policy “concern[s]” only “how most fully to protect rights of free expression for speakers, performers, and protesters alike” in “settings in which an audience has been assembled for a talk or performance.” Id.
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ARGUMENT A plaintiff seeking a preliminary injunction must show that “he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). “When a party seeks a preliminary injunction on the basis of the potential violation of the First Amendment, the likelihood of success on the merits often will be the determinative factor” because “it is well-settled that loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” and “it is always in the public interest to prevent the violation of a party’s constitutional rights.” Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998) (internal quotation marks omitted). Plaintiff meets these standards here. “[T]he Supreme Court has held time and again, both within and outside the school context, that the mere fact that someone might take offense at the content of speech is not sufficient justification for prohibiting it.” Saxe v. State College Area Sch. Dist., 240 F.3d 200, 215 (3d Cir. 2001) (Alito, J.). After all, “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.” Texas, 491 U.S. at 414. The government thus may not prohibit speech based on the “mere desire to avoid the discomfort and unpleasantness that
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always accompany an unpopular viewpoint.” Tinker, 393 U.S. at 509; see also Street
v. New York, 394 U.S. 576, 592 (1969) (“[T]he public expression of ideas may not
be prohibited merely because the ideas are themselves offensive to some of their
hearers.”); R.A.V. v. City of St Paul, 505 U.S. 377, 414 (1992) (“The mere fact that
expressive activity causes hurt feelings, offense, or resentment does not render the
expression unprotected.”). Nor may the government ban speech “based solely on
the emotive impact that its offensive content may have on a listener.” Saxe, 240
F.3d at 209 (Alito, J.); Forsyth Cty, 505 U.S. at 134 (ordinarily “[l]isteners’ reaction
to speech is not a content-neutral basis for regulation”).
State entities, including State-run colleges and universities, can—and, in
certain circumstances, must—proscribe “harassment,” “bullying,” and “bias-related
misconduct,” but those efforts must comport with the First Amendment and the
Constitution.2 As this Court noted nearly 30 years ago when it struck down a prior
2 For example, State entities can prohibit fighting words, harassing speech that creates a hostile environment, and “true threats”—all of which are particularly salient in the context of college campuses—in accordance with the First Amendment. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (defining fighting words as those which “by their very utterance inflict injury or tend to incite an immediate breach of the peace”); Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 651 (1999) (establishing liability standards for damages under Title IX based on school district’s failure to respond to hostile environment created by student-onstudent sexual harassment); Virginia v. Black, 538 U.S. 343, 359 (2003) (defining true threats as speech that intends “to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”). So, too, can States enact hate-crime statutes that comport with the First Amendment. See 18 U.S.C. § 249.
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speech policy of the University of Michigan, “[h]owever laudable or appropriate” the University’s efforts to promote civility and inclusiveness on campus, a policy that “swe[eps] within its scope a significant amount of verbal conduct or verbal behavior which is unquestionably protected under the First Amendment” cannot pass constitutional muster. Doe v. Univ. of Mich., 721 F. Supp. 852, 853 (E.D. Mich. 1989). Unfortunately, the portions of the Statement and the Bias Response Policy that Plaintiff challenges stretch far beyond the objective, well-established legal definitions of “harassment” or “bias,” and prohibit broad swaths of speech protected by the First Amendment. In particular, the Statement and the Bias Response Policy proscribe and punish core protected speech based upon nothing more than the listener’s subjective “reaction,” Forsyth Cty., 505 U.S. at 134, fail to “provide fair notice of the standard of conduct to which the citizen is held accountable,” and impermissibly expose faculty, students, and visitors to “arbitrary, discriminatory, and overzealous enforcement” by University officials, Leonardson, 896 F.2d at 19596. The challenged portions of the Statement and the Bias Response Policy violate the First Amendment. I. BY THEIR TERMS, THE UNIVERSITY’S PROHIBITIONS ON
“HARASSING,” “BULLYING,” “BIAS-RELATED MISCONDUCT,” AND “BIAS INCIDENTS” VIOLATE THE FIRST AMENDMENT The Supreme Court has warned against “the possibility that protected speech of others may be muted . . . because of the possible inhibitory effects of overly broad
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statutes.” Broadrick, 413 U.S. at 612. The First Amendment overbreadth doctrine thus “ensure[s] that an overbroad statute does not act to ‘chill’ the exercise of rights guaranteed protection.” Leonardson, 896 F.2d at 195; see also NAACP v. Button, 371 U.S. 415, 433 (1933) (“Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.”).
In this Circuit, a court’s first step in applying the overbreadth doctrine is to consider whether the challenged policy “reaches a substantial amount of constitutionally protected speech.” Dambrot v. Central Mich. Univ., 55 F.3d 1177, 1182 (6th Cir. 1995) (quoting Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984)); Leonardson, 896 F.2d at 195. The court then examines whether the policy is “substantially overbroad and constitutionally invalid under the void for vagueness doctrine.” Dambrot, 55 F.3d at 1183; Leonardson, 896 F.2d at 195-96. Unconstitutional vagueness can arise in “two forms, both of which result in a denial of due process.” Leonardson, 896 F.2d at 195-96. A policy is void for vagueness whenever it either fails to “provide fair notice of the standard of conduct to which the citizen is held accountable” or “leaves the definition of its term to law enforcement officers, and thereby invites arbitrary, discriminatory, and overzealous enforcement.” Id.
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Here, Plaintiff is likely to succeed on the merits because the challenged portions of the University’s Statement and the Bias Response Policy reach a substantial amount of constitutionally protected speech and are void for vagueness.
A. The Statement’s Bans On “Harassing,” “Bullying,” And “BiasMotivated Misconduct” Are Overbroad And Void For Vagueness
The portions of the Statement that the Plaintiff challenges are a paradigmatic example of overbreadth and vagueness. The University has declined to bind itself to a definition of either “harassing” or “bullying,” Doc. 4-2, Ex. B, at 1, 6-7, both of which are incorporated in “bias-motivated misconduct,” Doc. 4-2, Ex. K, at 2. Instead, the University has identified only “example” definitions of those terms. Doc. 4-2, Ex. B, at 1, 6-7. The University has identified four such “example” definitions of “harassment,” including one two-part definition, from such disparate sources as the Merriam-Webster Dictionary, other University policies, and Michigan state law. Doc. 4-2, Ex. B, at 1, 6-7. The University has also identified two “example” definitions of “bullying,” one of which is a five-part alternative definition and the other of which is a four-part alternative definition. Doc. 4-2, Ex. B, at 1, 67. Neither the Statement, the Definitions, nor any other University pronouncement identifies which of those definitions, if any or all, governs the University’s application of the Statement, its ban on “harassing,” “bullying,” and “bias-motivated misconduct,” and its imposition of sanctions up to and including suspension or
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expulsion. Doc. 4-2, Ex. B, at 6-7. These portions of the Statement contravene the First Amendment.
1. First, the University’s use of the terms “harassing,” “bullying,” and “bias-motivated misconduct” reaches “a substantial amount of constitutionally protected speech.” Dambrot, 55 F.3d at 1182. The hallmarks of the well-established definition of actionable harassment are severity, pervasiveness, and objective offensiveness. See, e.g., Davis, 526 U.S. at 651 (Title IX: “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities”); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (Title VII: “discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment”). But in the absence of “any requirement akin to a showing of severity or pervasiveness—that is, that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work”—a university’s “harassment” policy violates the First Amendment when it “provide[s] no shelter for core protected speech.” DeJohn v. Temple University, 537 F.3d 301, 317-18 (3d Cir. 2008). Indeed, “[l]oosely worded anti-harassment laws may pose some of the same problems as the St. Paul hate speech ordnance [in R.A.V.]: they may regulate deeply offensive and potentially
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disruptive categories of speech based, at least in part, on subject matter and viewpoint.” Saxe, 240 F.3d at 208 (Alito, J.).
Three cases illustrate how an anti-harassment policy can overreach into areas of protected speech. In Dambrot, the Sixth Circuit invalidated a public university’s “discriminatory harassment” policy on First Amendment grounds. See 55 F.3d at 1182-84. The policy challenged there stated that “discriminatory harassment will not be condoned” and defined “[r]acial and ethnic harassment” as “any intentional, unintentional, physical, verbal, or nonverbal behavior that subjects an individual to an intimidating, hostile or offensive educational, employment, or living environment.” Id. at 1182. Such “harassment” could be shown through use of “symbols, [epithets], or slogans that infer negative connotations about the individual’s racial or ethnic affiliation.” Id. The Sixth Circuit held that “[o]n its face, the policy reaches a substantial amount of constitutionally protected speech” because “[i]t is clear from the text of the policy that language or writing, intentional or unintentional, regardless of political value, can be prohibited upon the initiative of the university.” Id. at 1182-83. The policy was “sweeping and seemingly drafted to include as much and as many types of conduct as possible.” Id.at 1182.
The Third Circuit reached a similar conclusion in DeJohn. The university’s sexual harassment policy prohibited “all forms of sexual harassment, including . . . expressive, visual, or physical conduct of a sexual or gender-motivated nature” when
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such conduct “has the purpose or effect of creating an intimidating, hostile, or offensive environment.” 537 F.3d at 305. The Third Circuit concluded that the policy’s “use of ‘hostile,’ ‘offensive,’ and ‘gender-motivated’ is, on its face, sufficiently broad and subjective that they ‘could conceivably be applied to cover any speech’ of a ‘gender-motivated’ nature ‘the content of which offends someone.’” Id at 318. (quoting Saxe, 240 F.3d at 217 (Alito, J.)). The policy thus could prohibit “‘core’ political and religious speech, such as gender politics and sexual morality” or “opinions in class concerning women in combat and women in the military.” Id. at 317 & n.18. The Third Circuit therefore held that the policy, absent “a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work,” was overbroad in violation of the First Amendment. See id. at 317-19.
This Court’s decision in Doe is also especially instructive. At issue was a previous University of Michigan policy that included in its definition of harassment “[a]ny behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status.” 721 F. Supp. at 856. The Court explained that “[a] law regulating speech will be deemed overbroad if it sweeps within its ambit a substantial amount of protected speech along with that which it may legitimately regulate.” Id. at 864. The challenged
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policy was overbroad for precisely that reason: the Court pointed to occasions on which “the University considered serious comments made in the context of classroom discussion to be sanctionable under the Policy.” Id. at 866. What mattered principally was the listener’s sense of being victimized or stigmatized. See id.
Thus, in Dambrot, DeJohn, and Doe, the universities failed to include the hallmarks of the well-established legal standard for harassment in their policies— including the requirement of objective offensiveness—but instead allowed the subjective reaction of the listener to dictate whether the speech was permissible. Therefore, the policies were facially unconstitutional. See Dambrot, 55 F.3d at 1182-84; DeJohn, 537 F.3d at 317-19; Doe, 721 F. Supp. at 856, 864-66. Such is the case here as well: the Statement’s ban on “harassing,” “bullying,” and “biasmotivated misconduct” turn on the listener’s reaction to speech. For example, one of the University’s myriad “example” definitions of “harassing” comes from the Merriam-Webster Dictionary and defines that term as “unwanted negative attention perceived as intimidating, demeaning, or bothersome to an individual.” Doc. 4-2, Ex. B, at 6 (emphasis added). Moreover, one of the University’s multi-part alternative “example” definitions of “bullying” defines that term in part as (1) “to frighten, hurt, or threaten (a smaller or weaker person)” or (2) “to treat abusively.” Doc. 4-2, Ex. B, at 6.
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Accordingly, a member of the University community may be found to have engaged in “harassing,” “bullying,” or “bias-motivated misconduct” in violation of the Statement based on nothing more than the listener’s reaction that the speech is “demeaning,” “bothersome,” “hurt[ful],” or “abusive[].” Doc. 4-2, Ex. B, at 6. The Statement thus does precisely what the First Amendment forbids—it punishes speech merely because of “[l]isteners’ reaction.” Forsyth Cty., 505 U.S. at 134-35; see also Texas, 491 U.S. at 414; Tinker, 393 U.S. at 509; Street, 394 U.S. at 592; R.A.V., 505 U.S. at 414; Saxe, 240 F.3d at 209-15 (Alito, J.). Indeed, it is not difficult to imagine how speech regarding the “wide array of controversial topics on which Plaintiff’s members wish to engage in open, vigorous, or provocative debate and discussion”—such as “politics, immigration, race, sex, gender identity, religion, abortion, gun rights, and cultural issues,” Pl.’s Br. at 11 (Doc. 4)—would be “perceived as” “demeaning,” “bothersome,” or “hurt[ful]” by some individual in the University community, Doc. 4-2, Ex. B, at 6 (emphasis added); see also Pl.’s Br. at 15 (Doc. 4). The facial overbreadth of the Statement is clear.
2. Second, the Statement’s bans on “harassing,” “bullying,” and “biasmotivated misconduct” present “both problems” implicated by the void for vagueness doctrine: “fair notice and unrestricted delegation.” Dambrot, 55 F.3d at 1184. In fact, the University’s listing of “examples” and failure to bind itself to a definition of those terms alone establish that they are void for vagueness. Indeed,
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because the University has not bound itself to controlling definitions, members of the University community “of common intelligence must necessarily guess at [the] meaning” of the Statement’s proscriptions, Broadrick, 413 U.S. at 607, and may “‘steer far wider of the unlawful zone,’ than if the boundaries of the forbidden areas were clearly marked,” Baggett, 377 U.S. at 372.
Moreover, the University’s failure to bind itself to controlling definitions effects “an unrestricted delegation of power” to University officials. Leonardson, 896 F.2d at 196. Policies that confer discretionary power on government officials to regulate speech must contain “narrowly drawn, reasonable, and definite standards for the officials to follow.” Niemotko, 340 U.S. at 271; see also Forsyth Cty., 505 U.S. at 131 (holding that speech policies “must contain narrow, objective, and definite standards” to guide officials (internal quotation marks and citation omitted)). But the University provides no single definition of the challenged terms in the Statement, let alone a “narrowly drawn” one. Niemotko, 340 U.S. at 271. The University’s failure to prescribe such a standard “in practice leaves the definition” to University officials because it leaves University officials free to choose any, all, or none of the “example” definitions of those terms. Id. In fact, this failure even allows University officials to apply different definitions across cases—including because of their own approval or disapproval of the content or viewpoint expressed by the speech challenged in any individual case. See id. Such a scenario opens up
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precisely the risk of “arbitrary, discriminatory, and overzealous enforcement” that the First Amendment forbids. Id.
Finally, the subjective “example” dictionary definitions of “harassing” and “bullying” (and, by incorporation, “bias-motivated misconduct”) are void for vagueness because they turn on what the listener subjectively “perceive[s].” Doc. 4-2, Ex. B, at 6. As the Sixth Circuit reasoned in striking down the anti-harassment policy Dambrot, “[i]n order to determine what conduct will be considered [demeaning, bothersome, or hurtful] to the university, one must make a subjective reference” based upon the listener’s perception. 55 F.3d at 1184. Because “different people find different things” intimidating, demeaning, or bothersome, the definition “does not provide fair notice of what speech will violate the policy” but instead improperly leaves those definitions “wholly delegated to university officials.” Id.
For these reasons, the challenged portions of the Statement are overbroad and void for vagueness in violation of the First Amendment.
B. The Bias Response Policy Is Unconstitutionally Overbroad And Void For Vagueness
The University’s overbroad proscription on and punishment of core protected speech in violation of the First Amendment does not end with the Statement. The University’s Bias Response Policy addresses “bias incidents,” which may arise from “non-criminal activit[y],” Doc. 4-2, Ex. H, at 4, that “excludes, harasses, or harms anyone . . . based on their identity,” Doc. 4-2, Ex. F, at 1. Like the challenged
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portions of the Statement, the Bias Response Policy incorporates a wholly subjective definition of “bias.” The Bias Response Policy emphasizes that “[b]ias comes in many forms” and “can be hurtful action based on who someone is as a person,” and it tells students that “[t]he most important indication of bias is your own feelings.” Doc. 4-2, Ex. F, at 3 (emphasis added). It also states that “[b]ias often stems from fear, misunderstanding, hatred, and stereotypes that may be intentional or unintentional.” Doc. 4-2, Ex. F, at 1 (emphasis added). To date, the BRT has responded to more than 150 “bias incidents.” Doc. 4-2, Ex. J.
A university community undoubtedly has an interest in combatting harm to members of its community, in instilling respect for all persons, and in eradicating prejudice from its campus. The rub here, however, is that the Bias Response Policy is wholly subjective: it authorizes disciplinary consequences based on the “most important indication” of the listener’s “own feelings,” Doc. 4-2, Ex. F, at 3; Ex. H; Ex. I; Ex. L, and thus can sweep in all manner of constitutionally protected speech. The Third Circuit already has held that a university policy prohibiting “conduct which causes emotional distress” is unconstitutionally overbroad. McCauley v. Univ. of the Virgin Islands, 618 F.3d 232, 250-53 (3d Cir. 2010). The Third Circuit reasoned that “‘[e]motional distress’ is a very loose concept” that requires nothing more than a “state of feeling” involving “an exceedingly minimal threshold of harm.” Id. at 250. Even on a “narrow understanding” of that term, the Third Circuit
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concluded that it was “clear that the term is driven by the subjective preference of
the individual,” “without regard for whether the speech is objectively problematic.”
Id. at 250-51.
Thus, “[t]he scenarios in which this [policy] may be implicated are endless”:
[A] religious student organization inviting an atheist to attend a group prayer meeting on campus could prompt him to seek assistance in dealing with the distress of being invited to the event; minority students may feel emotional distress when other students protest against affirmative action; a pro-life student may feel emotional distress when a pro-choice student distributes Planned Parenthood pamphlets on campus; even simple name-calling could be so punished.
Id. at 251. “The reason all of these scenarios are plausible . . . is that the [policy] is
not based on speech at all. It is based on a listener’s reaction to speech.” Id.
The University’s reduction of “bias incidents” to the listener’s “own feelings,”
Doc. 4-2, Ex. F, at 3, likewise violates the First Amendment because it is not “based
on speech at all” but on “a listener’s reaction to speech,” McCauley, 618 F.3d at 251.
The Bias Response Policy does not prescribe any “minimal threshold of harm” to
the listener’s “feelings.” Id. at 250. Thus, the scenarios implicated by the Bias
Response Policy are even more numerous, and no less “endless,” than the scenarios
that established the constitutional violation in McCauley. Id. at 251. Moreover, the
Bias Response Policy focuses on the speaker’s “motivat[ion]” and the subjective
“hurtful[ness]” of the speech. Doc. 4-2, Ex. F, at 1-3; see also Dambrot, 55 F.3d at
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1184. Accordingly, as with the Statement, the Bias Response policy captures “a substantial amount of constitutionally protected speech,” Dambrot, 55 F.3d at 1182, defeats any “fair notice of the standard of conduct to which the citizen is held accountable,” and improperly “leaves the definition of its term to law enforcement officers, and thereby invites arbitrary, discriminatory, and overzealous enforcement,” Leonardson, 896 F.2d at 195-96. The Bias Response Policy “is rightly criticized” because it prohibits “‘core’ political and religious speech” in violation of the First Amendment. DeJohn, 537 F.3d at 317.
CONCLUSION For the foregoing reasons, Plaintiff is likely to succeed on the merits of its claim that the challenged portions of the Statement and the Bias Response Policy violate the First and Fourteenth Amendments.
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Dated: June 11, 2018

Respectfully submitted:

/s/ John M. Gore

x

JOHN M. GORE

Acting Assistant Attorney General

DONALD R. LIVINGSTON Deputy Assistant Attorney General TARA HELFMAN Special Counsel to the Assistant Attorney General THOMAS CHANDLER Acting Chief, Appellate Section Civil Rights Division United States Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20530 Telephone: (202) 514-4092 Facsimile: (202) 514-8337

MATTHEW SCHNEIDER United States Attorney

s/Peter A. Caplan PETER A. CAPLAN Assistant U.S. Attorney 211 W. Fort St., Ste. 2001 Detroit, MI 48226 (313) 226-9784 Email: Peter.Caplan@usdoj.gov P30643

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CERTIFICATE OF SERVICE I hereby certify that I have this day filed the foregoing document with the Clerk of Court using the CM/ECF system, which automatically sent counsel of record e-mail notification of such filing.
This 11th day of June, 2018 s/Peter A. Caplan PETER A. CAPLAN Assistant U. S. Attorney

 
 Case 4:18-cv-11451-LVP-EAS ECF No. 20 filed 06/19/18 PageID.942 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SPEECH FIRST, INC.,

Plaintiff, v.

Civil Case No. 18-11451 Honorable Linda V. Parker

MARK SCHLISSEL, et al.,

Defendants. __________________________/

ORDER GRANTING DEFENDANTS’ UNOPPOSED MOTION TO STAY OBLIGATION TO ANSWER OR OTHERWISE RESPOND TO COMPLAINT

This is a civil rights action brought under 42 U.S.C. §§ 1983 and 1988. In a

Complaint filed May 8, 2018, Plaintiff claims the University of Michigan violates

students’ First Amendment rights through its disciplinary code prohibiting

“harassment,” “bullying,” and “bias-related misconduct” and its “Bias Response

Team” tasked with investigating and punishing students for “bias” conduct. The

matter presently is before the Court on Defendants’ motion to stay the deadline for

responding to the Complaint until a decision is rendered on Plaintiff’s pending

motion for preliminary injunction. Defendants represent that Plaintiff does not

oppose the motion.

Defendants’ request serves the interest of efficiency. However, rather than

“staying” Defendants’ obligation to respond to Plaintiff’s Complaint, the Court is

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extending the deadline until twenty-one (21) days from the date the Court rules on Plaintiff’s motion for preliminary injunction.
IT IS SO ORDERED. s/ Linda V. Parker LINDA V. PARKER U.S. DISTRICT JUDGE
Dated: June 19, 2018 I hereby certify that a copy of the foregoing document was mailed to counsel of record and/or pro se parties on this date, June 19, 2018, by electronic and/or U.S. First Class mail.
s/ R. Loury Case Manager
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 Case 4:18-cv-11451-LVP-EAS ECF No. 25 filed 08/06/18 PageID.957 Page 1 of 33

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SPEECH FIRST, INC.,

Plaintiff,

v. MARK SCHLISSEL, et al.,

Civil Case No. 18-11451 Honorable Linda V. Parker

Defendants. ________________________/

OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

This action reflects a conflict faced by many public universities in their

attempt to balance the First Amendment rights of students and the need to provide

a safe learning environment free from discrimination and harassment. Speech

First, Inc., an organization that seeks to preserve the civil rights of students at

colleges and universities, filed this action on behalf of three unidentified students

at the University of Michigan (“University”) who claim their rights to free speech

have been chilled by the University’s disciplinary code prohibiting “harassment,”

“bullying,” and “bias-related conduct.” Speech First also challenges the

University’s “Bias Response Team,” which it claims is tasked with investigating

and punishing students for “bias” conduct. The matter presently is before the

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Court on Speech First’s motion for preliminary injunction, filed May 11, 2018. (ECF No. 4.)
In its motion, Speech First seeks an injunction enjoining Defendants, members of the University’s Board of Regents, from:
(1) taking any actions to investigate, threaten, or punish students for violations of the prohibitions on “harassment,” “bullying,” and “biasrelated misconduct” set forth in the University’s Statement of Student Rights and Responsibilities (the “Statement”); 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.” (Id. at Pg ID 82.) The United States submitted a statement of interest in support of Speech First’s motion on June 11, 2018. (ECF No. 14.) After requesting and receiving an extension of time, Defendants filed a response to the motion for preliminary injunction on June 15, 2018. (ECF No. 18.) Speech First filed a reply brief on June 29, 2018. (ECF No. 21.) The Court held a hearing with respect to the motion on July 31, 2018. I. Factual and Procedural Background The University’s Statement of Student Rights and Responsibilities (“Statement”) “describes possible behaviors which are inconsistent with the values of the University community[.]” (Mot., Ex. A(1) at 1, ECF No. 4-2 at Pg ID 125.) The Statement “outlines procedures to respond to such behaviors,” and “suggests
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possible sanctions/interventions which are intended to educate and to safeguard members of the University community.” (Id.) While the Statement indicates that the University’s standards of conduct “may exceed federal, state, or local requirements[,] it further indicates that “[s]tudents at the University have the same rights and protections under the Constitutions of the United States and the State of Michigan as other citizens.” (Id. at 1-2, Pg ID 125-26.) The Statement elaborates:
These rights include freedom of expression, press, religion, and assembly. The University has a long tradition of student activism and values freedom of expression, which includes voicing unpopular views and dissent. As members of the University community, students have the right to express their own views, but must also take responsibility for according the same right to others. (Id. at 2, Pg ID 126.) The “Violations” section of the Statement provides a list of behaviors deemed to “contradict the values of the University community” and which “are subject to action.” (Id. at 3, Pg ID 127.) The list includes “[h]arassing or bullying another person—physically, verbally, or through other means.” (Id.) These terms, like the remaining “[t]erms associated with Statement violations[,] are not defined within the Statement.” (See Pl.’s Mot. Ex. 2(B) at 1, ECF No. 4-2 at Pg ID 141; see also id. Ex. 2(A) at 1-14, Pg ID 124-38.) The Statement governs behaviors occurring on University controlled property, at University sponsored events and programs, and in the city of Ann Arbor. (Id. Ex. 2(A) at 4, Pg ID 128.)
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University students, faculty members, and staff members may file a complaint alleging a violation of the Statement with the University’s Office of Student Conflict Resolution (“OSCR”). (Id., at 5, Pg ID 129.) A Resolution Coordinator (“RC”) then investigates the complaint and decides how to respond. (Id.) The Statement identifies the following possible “sanctions/interventions”: (A) formal reprimand, (B) disciplinary probation, (C) restitution, (D) restrictions on University employment, (E) enrollment and completion of a class or workshop to help the student understand why the behavior is inappropriate, (F) completion of an educational project, (G) community service, (H) removal or transfer from university housing, (I) removal from specific courses or activities, (J) no contact restrictions, (K) suspension, and (L) expulsion. (Id. at 9-10, Pg ID 133-34.)
OSCR’s website, where the Statement is posted, also contains a “Definitions” webpage for terms associated with Statement violations. (Id., Ex. 2(B), ECF No. 4-2 at Pg ID 141.) This webpage begins: “Terms associated with Statement violations are not defined within the Statement. The following explanations are provided as examples of various interpretations that exist for terms used in the [Statement].” (Id., emphasis removed.) When this lawsuit was filed on May 8, 2018, the webpage included definitions for “harassing” and “bullying” from Merriam-Webster Dictionary, University policies, and Michigan
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law. (Id., Pg ID 146-47.) The Court recites the dictionary definition, as it is the
one Speech First highlights in support of its First Amendment claim:
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[.]
(Id. at Pg ID 146.)
Before Speech First filed this lawsuit, the University was reviewing its
websites and policies to ensure they complied with the law. (Defs.’ Resp., Ex. C
¶ 8, ECF No. 18-4 at Pg ID 395.) On June 11, 2018, the University announced that
it had revised the definitions of “harassing” and “bullying” that appeared on the
OSCR website. (Id. ¶ 9, citing Ex. 1, Pg ID 395, 400; see also ECF No. 18-4 at Pg
ID 402-03.) Specifically, the University eliminated the definitions from the
dictionary and other University policies and left those drawn from Michigan
statutes. (Id. ¶ 10, Pg ID 395, 400.) The remaining definitions are:
Harassing: conduct directed toward a person that includes repeated or continuing unconsented contact that would cause a reasonable individual to suffer substantial emotional distress and that actually causes the person to suffer substantial emotional distress. Harassing
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does not include constitutionally protected activity or conduct that serves a legitimate purpose. Bullying: any written, verbal, or physical act, or any electronic communication, directed toward a person that is intended to cause or that a reasonable person would know is likely to cause, and that actually causes, physical harm or substantial emotional distress and thereby adversely affects the ability of another person to participate in or benefit from the University’s educational programs or activities. Bullying does not include constitutionally protected activity or conduct that serves a legitimate purpose. (Id. ¶¶ 11, 12, Pg ID 396.) According to E. Royster Harper, the University’s Vice President for Student Life, who oversees the OSCR, the revised definitions were considered and approved by multiple members of the University’s leadership, including the President. (Id. ¶ 14, Pg ID 396.) Mr. Harper indicates that the earlier definitions had not gone through such review. (Id.) Mr. Harper states in his declaration, made under penalty of perjury: “These definitions, and no others, now will govern the initiation and conduct of disciplinary proceedings involving harassing or bullying.” (Id. ¶ 15, Pg ID 397.) The definitions are now the only ones appearing on the OSCR website. (Id., Ex. 2, ECF No. 18-4 at Pg ID 412-13.) In April 2018, the University also announced amendments to the Statement to take effect on July 1, 2018. (Id. ¶ 16, Pg ID 397; see also Pl.’s Mot., Ex. K, ECF No. 4-2 at Pg ID 263-64.), These amendments include the addition of a new
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“violation” for engaging in the previously-listed prohibited behaviors (i.e.,
behaviors labelled “A” through “U”) when “motivated by bias or prejudice”:
V. Engaging in misconduct as defined in violations “A” through “U” motivated by bias or prejudice. This includes behavior motivated on the basis of any person’s identity as protected by the University of Michigan’s Nondiscrimination Policy (race, color, national origin, age, marital status, sex, sexual orientation, gender identity, gender expression, disability, religion, height, weight, or veteran status) [201.89-1 and Regents bylaw 14.06]. Sanctions may be enhanced for any misconduct listed in sections IV of the Statement of Student Rights and Responsibilities that is determined to be motivated on the basis of the above classifications. This violation will be evaluated under current legal standards.
(Defs.’ Mot., Ex. C ¶ 17, ECF No. 18-4 at Pg ID 397; Pl.’s Mot. Ex. 2(K), ECF
No. 4-2 at Pg ID 263-64.) An amendment to the sanctions section of the Statement
reflects that bias-motivated misconduct will be treated as two separate violations,
evaluated separately in the sanctions/interventions stage: one for the specific act of
misconduct and a second for the bias motivation. (Id.) The “Definitions” page on
the OSCR’s website does not define “bias” or “prejudice.” See
https://oscr.umich.edu/article/definitions.
During the 2010-2011 academic year, the University created a Bias
Response Team (“BRT”) as an informal resource to support students who believe
they have been affected by incidents of bias, to report them to other campus
resources as appropriate, and to educate the University community regarding bias
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issues. (Defs.’ Resp., Ex. D ¶ 2, ECF No. 18-5 at Pg ID 424.) The BRT is based out of the office of the University’s Dean of Students, Laura Blake Jones. (Id. ¶¶ 1, 2, Pg ID 423-24.) According to Ms. Jones and the BRT webpage on the Dean of Students’ website, the BRT is not a disciplinary body; it cannot punish or sanction anyone and does not make a determination whether a reported incident should be considered an instance of “bias.” (Id. ¶ 8, Pg ID 424; see also id., Ex. 1 at Pg ID 455.) Instead, the BRT’s role is to listen to students who feel negatively impacted by conduct they perceive as “bias” and to serve as an educational resource. (Id. ¶ 9, Pg ID 425-26.)
Ms. Jones explains that the webpage for the BRT on the Dean of Students’ website provides an intentionally broad description of a “bias incident” because the BRT is focused on providing support for students who need it, rather than punishing anyone or proving anything. (Id. ¶ 11, Pg ID 426.) “It is an invitation to students who feel impacted by what they consider to be bias to seek support from professionals who are equipped to help them should the students voluntarily wish to do so.” (Id.) The Dean of Students’ website explains that “[b]ias often stems from fear, misunderstanding, hatred, and stereotypes and may be intentional or unintentional.” (Ex. F at Pg ID 4-2 at Pg ID 169.) The website also states: “Bias incidents may involve conduct that does not violate any law or university policy,”
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although some cases “do involve conduct that may violate federal, state, or local laws or U-M policies.” (Ex. 2 ¶ 13, citing Ex. 1, Pg ID 427, 454.) According to Ms. Jones, when the conduct is deemed unlawful or in violation of University policies, the BRT may discuss appropriate referrals with the student reporting the incident. (Id. ¶ 13.)
In an affidavit attached to Defendants’ response brief, Evelyn Galvan, one of the two Bias Incident Prevention and Response Team Coordinators on the BRT, describes how a report to the BRT is handled. (Defs.’ Resp. Ex. B, ECF No. 18-3.) As Ms. Galvan describes, when received, a report is entered on the Bias Incident Log, which the Interim Dean of Students, Dr. Julio Cardona, and Ms. Jones review before it is published. (Id. ¶ 4, ECF No. 387.) No determination is made as to whether the conduct described is a “bias incident” or not, all reports are logged. (Id.)
Ms. Galvan then determines whether the incident falls within the purview of University Housing (e.g., a roommate dispute) or the Office for Institutional Equity (i.e. incidents between employees). (Id. ¶ 5.) In those instances, the report is referred to a BRT member from one of those offices to address it through the unit’s internal procedures. (Id.) Ms. Galvan handles the remaining incidents. (Id.)
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Ms. Galvan first tries to reach out to the person who made the report and will meet with that person, if he or she is willing. (Id. ¶ 6, at Pg ID 387-88.) In that meeting, Ms. Galvan discusses the experience that prompted the report and the support the University offers, which may include:
educating the reporter on healthy coping mechanisms in the face of bias or how to listen and respond to people with different views; safety planning; discussions about free speech law; a referral to Counseling and Psychological Services (“CAPS”); introductions to relevant student groups; or brainstorming on how to find a mentor or support network. (Id. ¶ 7, Pg ID 388.) If the reporter is interested in utilizing OSCR’s ACR pathways program, or if it seems like an appropriate resource, Ms. Galvan explains the program and will facilitate an introduction to the individual who oversees it. (Id. ¶ 8, Pg ID 388.) If Ms. Galvan or the reporter believes the incident violates the Statement, Ms. Galvan will discuss the possibility of the reporter making a report to OSCR. (Id. ¶ 9, Pg ID 388.) Ms. Galvan will reach out via email to the person whose conduct is reported if the reporter wants her to do so, although this does not occur in the majority of cases. (Id. ¶ 11, Pg ID 389.) In her email, Ms. Galvan invites the person to meet with her to discuss the report. (Id.) Ms. Galvan states that a response to her request is entirely voluntary (although it is not clear whether this is expressed in
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her email) and that many of the people who she emails decline to meet. (Id.) In that case, she does not follow up with the individual. (Id.)
The University also is running a campaign called “Expect Respect,” which it describes as “an educational initiative that includes annual proactive programming aimed at supporting a campus climate in which all persons are treated with respect.” See http://expectrespect.umich.edu. Speech First quotes definitions of “bias” and “harassment” found on the “Definitions” page of the Expect Respect website, to demonstrate the overbreadth of the University’s policies. (Pl.’s Br. in Supp. of Mot. at 7, ECF No. 4 at Pg ID 96.) On that webpage, “bias” is defined as “a pre-formed negative opinion or attitude toward a group of persons who possess common physical characteristics, such as skin color; or cultural experiences, such as religion or national origin.” (Pl.’s Mot., Ex. E, ECF No. 4-2 at Pg ID 164.) “Harassment” is defined as “unwanted negative attention perceived as intimidating, demeaning or bothersome to an individual.” (Id. at Pg ID 165.) The following appears at the top of the webpage:
Below are definitions of terms that are commonly used in conversations about creating a safe and respectful climate, as adopted by the University of Michigan. These definitions, however, should not be interpreted as legal definitions used to determine if a violation of law has occurred.
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(Id. at Pg ID 164, emphasis in original.) The definitions page no longer appears on the website.
According to Speech First’s President, the organization has several members who are current students at the University who feel that they cannot openly and vigorously debate and discuss a wide array of often-controversial topics without running afoul of the University’s harassment and bullying policies. (Pl.’s Mot., Ex. 1 ¶¶ 3, 7-8, ECF No. 401 at Pg ID 117-18.) The Complaint describes three of these students: which it identifies as “Student A”, “Student B”, and “Student C.” The topics these students wish to debate and discuss include, but are not limited to: (a) support for gun rights, President Trump, the border wall, and the right of “highly unpopular speaker[s]” to lecture on campus; (b) opposition to illegal immigration, abortion, affirmative action, and having children outside of marriage; and (c) criticism of the Black Lives Matter and “gender identity” movements, welfare, affirmative action, and Title IX. (Compl. ¶¶ 87-124.) According to the Complaint, these students “credibly fear” that they will be reported to the BRT or OSCR if they attempt to discuss or debate these topics. (Id.) II. Preliminary Injunction Standard
A district court must balance four criteria in deciding whether to issue a preliminary injunction:
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“(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether the issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of the injunction.” Bailey v. Callaghan, 715 F.3d 956, 958 (6th Cir. 2013) (quoting Hunter v. Hamilton Cty. Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011)) (brackets omitted). “‘When a party seeks a preliminary injunction on the basis of a potential constitutional violation, the likelihood of success on the merits will often be the determinative factor.’” Id. (quoting Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012)). III. Likelihood of Success on the Merits Defendants first argue that Speech First is not likely to prevail on the merits of its claims because it lacks standing and its challenges are moot. While Defendants also argue that the University’s current policies are constitutional, the Court lacks jurisdiction to reach those arguments if Speech First lacks standing or its claims are moot. See Assoc. Builders & Contractors v. Perry, 16 F.3d 688, 693 (6th Cir. 1994); McPherson v. Michigan High Sch. Athletic Ass’n, 119 F.3d 453, 464-65 (6th Cir. 1997) (Moore, J., dissenting) (explaining that the court is without jurisdiction to consider the merits when Article III standing is lacking or a case has become moot).
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A. Speech First’s Standing
In response to Speech First’s motion, Defendants assert that Speech First
lacks standing to pursue this action.
Under the doctrine of associational standing, an organization like Speech
First has standing if the following three requirements are satisfied:
“(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”
Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Brock,
477 U.S. 274, 282 (1986) (quoting Hunt v. Washington State Apple Advert.
Comm’n, 432 U.S. 333, 343 (1977)). Defendants challenge the satisfaction of the
first requirement—that is, the standing of Speech First’s members, Students A, B,
and C.
The Supreme Court has identified the following elements necessary to
establish standing:
First, [the p]laintiff must have suffered an injury in fact—an invasion of a legally-protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as
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opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife (“Lujan II”), 504 U.S. 555, 560-61 (1992) (internal citations and quotation marks omitted). “The party invoking federal jurisdiction bears the burden of establishing these elements.” Id. at 561. Defendants argue that Speech First “lacks standing to challenge the University’s prohibitions of ‘bullying’ or ‘harassing[]’ because there is no credible threat that Students A, B, or C will face disciplinary action for expressing their opinions.” (Defs.’ Resp. Br. at 11, ECF No. 18 at Pg ID 354.) Defendants point to the Statement’s emphasis that the University’s “central purpose” is to “promote vigorous discourse” and that it is committed to “freedom of expression, which includes voicing unpopular views and dissent.” Defendants contend that “[t]here is no credible threat” that the University would punish students for speaking openly about the matters these students wish to express. In fact, Defendants maintain, “the record demonstrates that the University has embraced student groups and publications who have expressed many of the same positions that Students A, B, and C wish to espouse, without any threat of sanction.” (Id. at 13, Pg ID 356.) Defendants point out that Speech First does not cite a single instance in which a student faced discipline for the expression of such views.
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With respect to the BRT, Defendants argue that Speech First lacks standing “because the BRT poses no credible threat to any student.” (Id. at 14, Pg ID 357.) Defendants indicate that the BRT neither makes findings nor metes out discipline. Instead, its focus is providing support for members of the University community who feel that they are the victim of a biased incident. Defendants represent that the BRT rarely becomes involved with the individual(s) whose conduct triggered the report, and that any participation is then voluntary.
Speech First asserts a facial—as opposed to an as-applied challenge—to the University’s “bullying” and “harassing” policies. In that instance, there is an exception to the general standing rules. “It is well established that in the area of freedom of expression an overbroad regulation may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable.” Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 129 (1992) (citing City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798-99, n.15 (1984); Bd. of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987)). As the Supreme Court explained in Forsyth County: “[t]his exception from general standing rules is based on an appreciation that the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the court.” Id. (citing New York v. Ferber,
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458 U.S. 747, 772 (1982); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985)).
As to the University’s “bullying” and “harassing” prohibitions, even if the University is not likely to punish Students A, B, or C for speaking about the varying issues important to them, it cannot be said that students speaking about other matters might not be subject to punishment despite the fact that their speech is protected by the First Amendment. In fact, when questioned at the motion hearing, counsel for Defendants indicated that there were sixteen disciplinary cases involving “bullying” or “harassing” misconduct from 2016-2018. The policy’s alleged overbreadth means that members of the University cannot pre-determine what matters of speech may or may not subject them to punishment. In that instance, Supreme Court precedent dictates that Speech First—on behalf of Students A, B, and C—has standing to challenge the University’s policies.1 See Village of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 634 (1980) (“Given a case or controversy, a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the court.”).
1 Defendants do not challenge Speech First’s ability to satisfy the remaining elements for associational standing.
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While the overbreadth doctrine may allow Speech First to bring this lawsuit
even if the University’s policies do not infringe the First Amendment rights of
Students A, B, and C, specifically, Speech First still must satisfy the remaining
core Article IIII standing requirements. Savage v. Gee, 665 F.3d 732, 740 (6th Cir.
2012); Jones v. Coleman, 848 F.3d 744, 749 (6th Cir. 2017). As the Sixth Circuit
has explained:
While the doctrines of overbreadth and vagueness provide an exception to the traditional rules of standing and allow parties not yet affected by a statute to bring actions under the First Amendment based on a belief that a policy is so broad or unclear that it will have a chilling effect, Coates v. City of Cincinnati, 402 U.S. 611, 619-20, 91 S. Ct. 1686, 29 L.Ed.2d 214 (1971); Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1182 (6th Cir. 1995), “allegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Laird v. Tatum, 408, U.S. 1, 13-14, 92 S. Ct. 2318, 33 L.Ed.2d 154 (1972). “In order to have standing … a litigant alleging chill must still establish that a concrete harm—i.e., enforcement of a challenged statute—occurred or is imminent.” Morrison v. Bd. of Educ. of Boyd Cty., 521 F.3d 602, 610 (6th Cir. 2008) (citation omitted); accord Prima Media, Inc.[v. City of Brentwood, 485 F.3d 343, 350 (6th Cir. 2007)] (“Because overbreadth creates an exception only to the prudential standing inquiry, the Supreme Court has made clear that the injury in fact requirement still applies to overbreadth claims under the First Amendment.”).
Savage, 665 F.3d at 740; see also Jones, 848 F.3d at 749 (quoting Laird, 408 U.S.
at 13-14) (“[T]he Supreme Court has repeatedly held that individuals or groups
need not wait to be prosecuted for the exercise of First Amendment rights before
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they can bring a lawsuit, provided there is a “claim of specific present objective harm or a threat of specific future harm.”) (emphasis added).
Speech First establishes a concrete and objective threat of harm in connection with the Statement’s prohibited conduct. Speech First alleges, and Defendants do not deny, that students engaged in “bullying” and “harassing” behavior can be and have been punished through OSCR proceedings. Speech First, however, fails to demonstrate that the BRT poses anything but a “subjective chill” on students’ free speech rights.
Speech First asserts in its Complaint that the BRT “is tasked with investigating and punishing” individuals who engage in biased behavior. (Compl. ¶ 4, ECF No. 1 at Pg ID 3.) Speech First further asserts that a student engaged in such conduct “may receive a knock on the door from a team of University officials threatening to refer the student to formal disciplinary authorities unless he or she submits to ‘restorative justice,’ ‘individual education,’ or ‘unconscious bias training.’” (Id.) According to Speech First, the BRT “conducts a full investigation” when it receives a report of “bias” and “will confront the student or students whose speech was deemed to be ‘biased.’” (Id. ¶ 46, Pg ID 14.) Speech First alleges that the BRT “has … imposed various forms of punishment on students whose speech purportedly expressed bias . . ..” (Id. ¶ 55, Pg ID 16.)
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When a preliminary injunction is sought, however, a plaintiff’s burden to demonstrate standing “will normally be no less than that required on a motion for summary judgment.” Lujan v. Nat’l Wildlife Fed’n (“Lujan I”), 497 U.S. 871, 907 n. 8 (1990). Accordingly, to establish standing for a preliminary injunction, a plaintiff cannot “rest on such ‘mere allegations,’ [as would be appropriate at the pleading stage] but must ‘set forth’ by affidavit or other evidence ‘specific facts,’ which for purposes of the summary judgment motion will be taken to be true.” Lujan II, 504 U.S. at 561 (internal citation omitted). Speech First has presented no evidence to support the above allegations.
In fact, the record evidence reflects that the BRT neither investigates reports of “bias” nor has the authority to mete out any form of punishment for “bias” or “bias conduct.” It is not a disciplinary body and cannot punish or sanction anyone. On those occasions where the BRT contacts the person whose conduct is the subject of a report (which occurs in a minority of cases), the person’s response or willingness to become involved in discussions is voluntary. This is stated on the homepage of the BRT’s website: “The BRT cannot impose discipline and no one is required to participate in any aspect of the BRT’s work.” See https://deanofstudents.umich.edu/bias-incidents. As the webpage also states: “if you wish, the person alleged to be responsible for the incident may be contacted
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and invited to voluntarily meet with a member of the BRT. Such a meeting cannot be compelled, however. Id., emphasis added.
According to BRT Coordinator Galvan, in most cases, she does not contact the subject of a report. (Defs.’ Resp., Ex. B ¶ 11, ECF No. 18-3 at Pg ID 389.) In only one case where she reached out to the subject did the individual agree to meet. (Id. ¶ 13, Pg ID 390.) In the remaining cases where the individual declined to meet, Ms. Galvan did not follow up with the individual. (Id. ¶ 11, Pg ID 389.)
Speech First nevertheless argues that this type of “voluntary” response still has a coercive effect on the exercise of First Amendment rights by members of the University community. Speech First contends that “‘[u]nder some circumstances, indirect ‘discouragements’ undoubtedly have the same coercive effect upon the exercise of First Amendment rights as imprisonment, fines, injunctions, or taxes.’” (Pl.’s Reply Br. at 2, quoting Am. Commc’ns Ass’n v. Douds, 339 U.S. 382, 402 (1950).) Counsel for Speech First argued at the motion hearing that fear of being approached by a university official about one’s speech in itself chills speech. Counsel argued that the threat posed by the BRT is similar to that posed in the 1980’s pornography cases it has cited. Those cases are inapposite, however.
Specifically, the courts in the cases cited by Speech First found implicit threats of sanctions or retaliation if there was a refusal to engage in the voluntary
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and informal resolution mechanisms offered. For example, in Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989), the challenged policy stated a preference for the university “to employ informal mechanisms for mediation and resolution of complaints whenever possible[.]” Id. at 857. Nevertheless, the court found that “[b]ehind this persuasion was … the subtle threat that failure to accept such sanctions might result in a formal hearing.” Id. at 866. The policy at issue in Doe provided for a range of sanctions, from formal reprimand to expulsion. Id. at 857.
In Okwedy v. Molinari, 333 F.3d 339 (2d Cir. 2003), the court concluded that a reasonable juror could find a city borough president’s letter to a billboard company to be threatening some form of punishment or adverse regulatory action and therefore an unconstitutional infringement of the plaintiff’s free speech rights. Id. at 344. In Okwedy, a religious organization contracted with the billboard company to post billboards denouncing homosexuality in or near neighborhoods containing a significant number of gay and lesbian residents. Id. at 340. The billboards did not identify the sponsor of the message. Id. at 341.
When controversy ensued concerning the message on the billboards, the borough’s president sent a letter to the billboard company, on city letterhead, requesting “a dialogue with [the company] and the sponsor as quickly as possible”
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and stating that “many members of the Staten Island community, myself included,
find this message unnecessarily confrontational and offensive.” The borough
president concluded the letter, writing:
[The billboard company] owns a number of billboards on Staten Island and derives substantial economic benefits from them. I call on you as a responsible member of the business community to please contact Daniel L. Master, my legal counsel and Chair of my Anti-Bias Task Force … to discuss further the issues I have raised in this letter.
Id. at 342. Later that day, the billboard company removed the plaintiff’s signs.
The Second Circuit concluded that the letter could be interpreted as containing an
implicit threat of retaliation if the billboard company did not remove the plaintiff’s
signs, even if the borough president lacked direct regulatory or decisionmaking
authority. Id. at 344.
Similarly, the Supreme Court concluded that the plaintiff had standing in
Bantam Books v. Sullivan, 372 U.S. 58 (1963), based on the lower court’s finding
that vendors complied with the Rhode Island Commission to Encourage Morality
out of fear of criminal prosecution. Id. at 68-69. The Court wrote:
People do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around, and [one distributor]’s reaction [i.e., stopping further circulation of the books the Commission found “objectionable”], according to uncontroverted testimony, was no exception to this general rule. The Commission’s notices, phrased virtually as orders, reasonably understood to be such by the distributor, invariably followed up by police visitations, in fact stopped the circulation of the
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listed publications ex proprio vigore. It would be naïve to credit the State’s assertion that these blacklists are in the nature of mere legal advice, when they plainly serve as instruments of regulation independent of the laws against obscenity. Id. (footnote omitted). In the present matter, in comparison, there is no evidence of any “thinly veiled threat[]” from the BRT to individuals reported to have engaged in “biased” conduct. While Speech First also cites Playboy v. Meese, 639 F. Supp. 581 (D.D.C. 1986), this Court finds the decision in the subsequent appeal of that decision more instructive: Penthouse International, Ltd. v. Meese, 939 F.2d 1011 (D.C. Cir. 1991). In that case, the United States Attorney General and members of his Commission on Pornography, sent letters to distributors of adult magazines indicating that, if they failed to respond to allegations that they were selling pornography, the accusations would be included in the commission’s final report. Penthouse Int’l, 939 F.2d at 1012-13. Distinguishing Bantam Books, the Court of Appeals for the D.C. Circuit indicated that the commission “had no equivalent tie to prosecutorial power nor authority to censor publications. The letter it sent contained no threat to prosecute, nor intimation of intent to proscribe the distribution of the publications.” Penthouse Int’l, 939 F.2d at 1015. The court further found no evidence that the “Commission ever threatened to use the coercive power of the state against recipients of the letter.” Id.
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The court found no First Amendment violation, reasoning that “the Supreme
Court has never found a government abridgement of First Amendment rights in the
absence of some actual or threatened imposition of governmental power or
sanction.” Id. (citing Meese v. Keene, 481 U.S. 465, 480-83 (1987); Laird v.
Tatum, 408 U.S. 1, 11 (1972)). The court further reasoned:
We do not see why government officials may not vigorously criticize a publication for any reason they wish. As part of the duties of their office, these officials surely must be expected to be free to speak out to criticize practices, even in a condemnatory fashion, that they might not have the statutory or even constitutional authority to regulate. Cf. Reuber v. United States, 750 F.2d 1039, 1059 (D.C. Cir. 1984) (a government actor may openly criticize a study produced by an employee so long as no job-threatening sanction is employed). If the First Amendment were thought to be violated any time a private citizen’s speech or writings were criticized by a government official, those officials might be virtually immobilized.
Penthouse Int’l, 939 F.2d at 1015-16. The court continued:
At least when the government threatens no sanction—criminal or otherwise—we very much doubt that the government’s criticism or effort to embarrass the distributor threatens anyone’s First Amendment rights. “We know of no case in which the first amendment has been held to be implicated by governmental action consisting of no more than governmental criticism of the speech’s content.”
Id. at 1016 (quoting Block v. Meese, 793 F.2d 1303, 1313 (D.C. Cir. 1986)).
The evidence in the present matter similarly reflects no threats—direct,
subtle, or implied—from the BRT. As indicated, the BRT website expressly states
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that it lacks the authority to impose discipline and that no one is required to participate in any aspect of its work and cannot be compelled to meet. Speech First presents no evidence of any communication from the BRT to an individual reported to have engaged in “bias” or “biased conduct” conveying something different—more specifically, pressure or an intimation that some form of punishment or adverse action will follow the failure to accede the BRT’s requests.
The evidence does not even reflect an instance where the BRT criticized the speech of an individual who is reported to have engaged in biased conduct. But even if the record reflected that the BRT had criticized an individual’s speech, there would be no First Amendment violation “in the absence of some actual or threatened imposition of governmental power or sanction.” Penthouse Int’l, 939 F.2d at 1015. The Court agrees with defense counsel’s assertion at the motion hearing that a university should be able to address a student when his or her speech may offend or hurt other students without running afoul of the First Amendment. As counsel stated:
That’s education. That’s what a professor should do. That’s what the university should do when someone comes to a body that’s created in order to promote respect and understanding on the campus. Respect and understanding are not enemies of the First Amendment …. Respect is a condition for effective speech. Understanding is the goal of speech.
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In short, Speech First fails to demonstrate that the BRT poses a concrete or objective threat of harm to the First Amendment rights of University students. The Court therefore holds that Speech First fails to demonstrate the injury-in-fact necessary to establish Article III standing with respect to its challenge to the BRT.
B. Whether Plaintiff’s Challenge to the University’s Policy Regarding “Harassing,” “Bullying,” and “Bias-Related” Conduct are Moot
Defendants argue that Speech First’s claims are moot in light of the University’s elimination of the challenged definitions for “harassing” and “bullying” conduct, leaving definitions based only on Michigan statutes which Speech First does not challenge. Speech First argues in reply that the University’s unilateral changes to its definitions do not moot the case and that the changes do not impact Speech First’s challenges with respect to the BRT.
Article III of the United States Constitution restricts the power of federal courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2. A case and controversy no longer exist, and the matter “is moot[,] when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969).
“[A]s a general rule, ‘voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not
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make the case moot.’” Los Angeles Cty. v. Davis, 440 U.S. 625, 631 (1979) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953)); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 708 (2000) (quoting City of Mesquite v. Alladin’s Castle, Inc., 455 U.S. 283, 289 (1982)). “ ‘If it did, the courts would be compelled to leave the defendant free to return to his old way.’” Id. (brackets and ellipsis omitted) (quoting City of Mesquite, 455 U.S. at 289 n.10). Nevertheless, the Supreme Court has held that a case does become moot if:
(1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. When both conditions are satisfied it may be said that the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law. Davis, 440 U.S. at 631 (internal citations, ellipsis, and quotation marks omitted). The burden of proving that a matter has become moot falls upon the party claiming mootness—a burden which the Supreme Court has described as “a heavy one.” Id. (citing United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953)); see also Cleveland Branch, NAACP v. City of Parma, 263 F.3d 513, 531 (6th Cir. 2001). The Sixth Circuit, however, views the voluntary cessation of allegedly
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illegal conduct by governmental actors “with more solicitude” than similar conduct by private parties. Ammex, Inc. v. Cox, 351 F.3d 697, 705 (6th Cir. 2003) (citing Mosley v. Hairston, 920 F.2d 409, 415 (6th Cir. 1990)); see also Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 981-82 (6th Cir. 2012) (citation omitted) (indicating that the Friends of the Earth standard applies where a private defendant is involved, but the court “place[s] greater stock in [government officials’] acts of self-correction, so long as they appear genuine”). Under either standard, this Court finds that Defendants have met their burden of demonstrating mootness with respect to the University’s “bullying” and “harassment” policies.
First, the University removed the objected to definitions of “bullying” and “harassing” within a month of Speech First’s initiation of this lawsuit. The revisions were the product of a review started before the action was filed to ensure the University’s website and policies complied with First Amendment principles and the University’s legal obligations. Unlike the previous definitions challenged by Speech First, the revisions were considered and approved by multiple members of the University’s leadership, including the President. The changes were announced to the University community.
Second, the University has not defended to any degree the constitutionality of the previous definitions. And, the University represents in a statement made
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under penalty of perjury that the revised definitions, and no others, will govern the initiation and conduct of disciplinary proceedings involving “harassing” and “bullying” behavior. Speech First insinuates that the University routinely adopts policies that infringe the First Amendment rights of its students, referencing Doe v. University of Michigan, 721 F. Supp. 852,. However, the fact that the University adopted a policy thirty years ago that was immediately overturned, does not persuade this Court that it is likely to reverse course once this lawsuit terminates. Nothing suggests that the University will resume using the challenged definitions once this litigation terminates.
The OSCR website does not define “bias” or “prejudice.” See https://oscr.umich.edu/article/definitions. Thus, Speech First may maintain that the allegedly overbroad definitions of those terms, which still appear on other University materials, could be used to define such prohibited conduct. Nevertheless, a violation of the Statement occurs only if the “bias” or “prejudice” motivates other prohibited conduct. This requirement prevents the prohibited conduct from being interpreted in an unconstitutionally overbroad manner.
The University’s conduct after this lawsuit was filed “ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to
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recur.” As such, the Court finds Speech First’s constitutional challenge to the University’s previous “bullying” and “harassing” definitions to be moot. IV. Irreparable Harm to Speech First and Others
Speech First argues that it and its members will suffer irreparable harm absent a preliminary injunction because “‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’” (Pl.’s Br. in Supp. of Mot. at 24, ECF No. 4 at Pg ID 113, quoting Elrod v. Burns, 427 U.S. 347, 373 (1976).) The University’s removal of the challenged “bullying” and “harassing” definitions, however, removes the threat to students’ free speech rights. Speech First does not argue that the remaining definitions, which are based on Michigan statutes, are overbroad or otherwise unconstitutional. In fact, Michigan state and federal courts have upheld the constitutionality of those statutes. See People v. White, 536 N.W.2d 876, 883, 884 (Mich. Ct. App. 1995) (holding that the definition of “harassment” in Michigan Compiled Laws § 750.411i(d) is not vague or overbroad); Staley v. Jones, 239 F.3d 769, 787, 79293 (6th Cir. 2001) (finding the White court’s conclusions to be reasonable); Glowacki ex rel. D.K.G. v. Howell Pub. Sch. Dist., No. 2013 WL 3148272, at *12 (E.D. Mich. June 19, 2013) (upholding definition of “bullying” found in Michigan Compiled Laws § 380.1310b(1)(b)).
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As discussed above, there is no credible fear of punishment from the BRT, and thus there is no harm to students’ rights if its actions are not enjoined.
On the other hand, the Sixth Circuit has found that enjoining a university’s harassment policies may cause harm to students because they “may be forced to endure a hostile learning environment and may be intimidated into remaining silent.” Bonnell v. Lorenzo, 241 F.3d 800, 826 (2001). Speech First’s counsel acknowledged at the motion hearing that a university must do all it can to promote respect among students. Further, as the Bonnell court found, enjoining such policies harm the public’s interest “in knowing that such goings on are properly investigated and not allowed to continue in any given arena.” Id.
Thus, the Court finds that the second, third, and fourth preliminary injunction factors also weigh against the issuance of injunctive relief. V. Conclusion
For these reasons, the Court is DENYING Speech First’s motion for a preliminary injunction.
IT IS SO ORDERED. s/ Linda V. Parker LINDA V. PARKER U.S. DISTRICT JUDGE
Dated: August 6, 2018
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I hereby certify that a copy of the foregoing document was mailed to counsel of record and/or pro se parties on this date, August 6, 2018, by electronic and/or U.S. First Class mail.
s/ R. Loury Case Manager
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Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: September 23, 2019
Mr. Kevin T. Baine Mr. Stephen Joseph Fuzesi Ms. Kathryn Elizabeth Hoover Mr. Amy Beth McKinlay Williams & Connolly 725 Twelfth Street, N.W. Washington, DC 20005
Mr. William Spencer Consovoy Mr. Jeffrey Matthew Harris Consovoy McCarthy 1600 Wilson Boulevard Suite 700 Arlington, VA 22209
Mr. Lawrence John Joseph 1250 Connecticut Avenue, N.W Suite 700-1A Washington, DC 20036
Mr. Thomas W. Kidd Jr. 8913 Cincinnati-Dayton Road West Chester, OH 45069-3131
Mr. Leonard M. Niehoff Honigman 315 E. Eisenhower Parkway, Suite 100 Ann Arbor, MI 48108
Re: Case No. 18-1917, Speech First, Inc. v. Mark Schlissel, et al Originating Case No. : 4:18-cv-11451
Dear Counsel,
The court today announced its decision in the above-styled case.

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Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.
Yours very truly,
Deborah S. Hunt, Clerk

cc: Mr. David J. Weaver Enclosures Mandate to issue.

Cathryn Lovely Deputy Clerk

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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 19a0249p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

SPEECH FIRST, INC.,

┐

Plaintiff-Appellant, │

│

>

v.

│

│

│

MARK SCHLISSEL, in his official capacity as President │

of the University of Michigan, et al.,

│

Defendants-Appellees. │

┘

No. 18-1917

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: May 2, 2019

Decided and Filed: September 23, 2019

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

COUNSEL

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, D.C., 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.

McKEAGUE, J., delivered the opinion of the court in which COOK, J., joined. WHITE, J. (pp. 16–23), delivered a separate dissenting opinion.

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_________________
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.

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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

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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 preliminary injunction:
(1) whether the movant has a strong likelihood of success on the merits; [(2)] whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of the injunction.
Bailey v. Callaghan, 715 F.3d 956, 958 (6th Cir. 2013) (quoting Hunter v. Hamilton Cty. Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011)). We review the district court’s determination of

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the likelihood of success on the merits de novo. Hunter, 635 F.3d at 233. The “ultimate determination as to whether the four preliminary injunction factors weigh in favor of granting or denying preliminary injunctive relief is reviewed for abuse of discretion. This standard of review is ‘highly deferential’ to the district court’s decision.” Id. (quoting Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 540–41 (6th Cir. 2007)).
The district court concluded that Speech First was not likely to succeed on the merits of its claim against the Response Team because Speech First lacked standing to assert that claim. We disagree. Speech First does not allege that the University has violated Speech First’s constitutional rights. Rather, Speech First asserts that the University violated the rights of its members who attend the University and, therefore, that it has associational standing to bring a lawsuit on behalf of those members. An association has standing to bring a suit on behalf of its members when “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am. v. Brock, 477 U.S. 274, 282 (1986) (quoting Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)). It is the first requirement—that the association’s members would have standing to sue in their own right—that is at issue here.
Relevant here, for litigants to have standing to sue in their own right, they “must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (cleaned up). “The party invoking federal jurisdiction bears the burden of establishing” injury-in-fact. Id. at 561.
The injury-in-fact requirement means that litigants will have standing to challenge government action only when it restricts their own constitutionally protected activities. Massachusetts v. Oakes, 491 U.S. 576, 581 (1989); Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 634 (1980). But the Supreme Court has recognized an exception to this general principle for First Amendment challenges alleging that a statute or regulation is overbroad. Vill. of Schaumburg, 444 U.S. at 634 (“[A] litigant whose own activities are

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unprotected may nevertheless challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the court.”).
Even where a litigant challenges a law or regulation as overbroad, that litigant must still “show that he has sustained, or is immediately in danger of sustaining, a direct injury as the result of that action.” Laird v. Tatum, 408 U.S. 1, 13 (1972) (quoting Ex parte Levitt, 302 U.S. 633, 634 (1937)). We use the term “objective chill” to refer to laws or regulations that produce direct injuries and the term “subjective chill” where a law or regulation does not.
Under the First Amendment, mere “[a]llegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 418 (2013) (quoting Laird, 408 U.S. at 13). The regulation need not amount to a “direct prohibition against the exercise of First Amendment rights” to be constitutionally objectionable. Still, there must be something more than “the individual’s knowledge that a governmental agency was engaged in certain activities or . . . the individual’s concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual.” Laird, 408 U.S. at 11. We have noted that “the mere existence, without more, of a governmental investigative and data-gathering activity” is insufficient to present anything more than allegations of a subjective chill of First Amendment speech. Morrison v. Bd. of Educ. of Boyd Cty., 521 F.3d 602, 608 (6th Cir. 2008). “In order to have standing, therefore, a litigant alleging chill must still establish that a concrete harm—i.e., enforcement of a challenged statute—occurred or is imminent.” Id. at 610. That an official or regulator lacks actual authority to punish an individual, although relevant to the question of concrete harm, is not dispositive. Even if an official lacks actual power to punish, the threat of punishment from a public official who appears to have punitive authority can be enough to produce an objective chill. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 68 (1963). See also Okwedy v. Molinari, 333 F.3d 339, 344 (2d Cir. 2003); Levin v. Harleston, 966 F.2d 85, 88–89 (2d Cir. 1992). Governmental activity constitutes an injury-in-fact when “the challenged exercise of governmental power [is] regulatory, proscriptive, or compulsory in nature, and the complainant [is] either presently or prospectively

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subject to the regulations, proscriptions, or compulsions that he [is] challenging.” Laird, 408 U.S. at 11.
Speech First has standing to challenge the Response Team here because its members face an objective chill based on the functions of the Response Team. Speech First recognizes that the Response Team lacks any formal disciplinary power and that bias incidents are not directly punishable under the Statement, but maintains that the Response Team acts by way of implicit threat of punishment and intimidation to quell speech. We agree.
The Response Team’s ability to make referrals—i.e., to inform OSCR or the police about reported conduct—is a real consequence that objectively chills speech. The referral itself does not punish a student—the referral is not, for example, a criminal conviction or expulsion. But the referral subjects students to processes which could lead to those punishments. The referral initiates the formal investigative process, which itself is chilling even if it does not result in a finding of responsibility or criminality. See Bantam Books, Inc., 372 U.S. at 68. Furthermore, nothing in the record suggests that the Response Team may refer matters only if the reporting student assents. By instituting a mechanism that provides for referrals, even where the reporting student does not wish the matter to be referred, the University can subject individuals to consequences that they otherwise would not face.
Additionally, the invitation from the Response Team to meet could carry an implicit threat of consequence should a student decline the invitation. Although there is no indication that the invitation to meet contains overt threats, the referral power lurks in the background of the invitation. It is possible that, for example, a student who knows that reported conduct might be referred to police or OSCR could understand the invitation to carry the threat: “meet or we will refer your case.” Additionally, the very name “Bias Response Team” suggests that the accused student’s actions have been prejudged to be biased. The name is not the “Alleged Bias Response Team” or “Possible Bias Investigatory Team.” It is the “Bias Response Team.” And as such, the name intimates that failure to meet could result in far-reaching consequences, including reputational harm or administrative action. Nobody would choose to be considered biased, and an individual could be forgiven for thinking that inquiries from and dealings with the Bias Response Team could have dramatic effects such as currying disfavor with a professor, or

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impacting future job prospects. Attending the meeting is voluntary. But the record is silent as to whether being labeled “voluntary” ameliorates any of these objectively implied threats.
Both the referral power and the invitation to meet with students objectively chill speech. Therefore, we find that Speech First has standing to challenge the Response Team.1
As with its claim regarding the Response Team, Speech First must have associational standing to assert a claim regarding the definitions of bullying and harassment in the Statement. We agree with the district court that Speech First has standing. The University contends that Speech First lacks standing because there is no “credible threat” that its members would be subject to discipline for protected speech. In support, the University argues that there is no evidence in the record that a student has faced discipline for having an “intellectual debate.” This misses the point. The lack of discipline against students could just as well indicate that speech has already been chilled. Further, as the district court noted, there have been “sixteen disciplinary cases involving ‘bullying’ or ‘harassing’ misconduct from 2016-2018.” Students who violate the Statement are subject to a range of consequences, including expulsion. Although evidence might eventually show that students participating in protected speech would not be subject to disciplinary proceedings, that evidentiary showing is not currently supported by the record. Thus, Speech First has established a concrete and objective threat of harm and therefore has standing to challenge the definitions.
The dissent faults us for overlooking Morrison v. Board of Education. However, because Speech First brings a facial challenge to the definitions of harassment and bullying, this case is distinguishable from Morrison.2 In Morrison, a student brought a lawsuit seeking nominal damages because his high school’s policy “prohibiting students from making stigmatizing or
1We note that our determination of standing rests on the preliminary posture of the case. We do not foreclose the possibility that the University could introduce facts which, if unrebutted, would demonstrate that Speech First lacks standing. The University has simply failed to do so here.
2We are aware that, in general, “[f]acial challenges are disfavored.” Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450 (2008); Warshak v. United States, 532 F.3d 521, 530 (6th Cir. 2008). However, in the First Amendment context, the preference for as-applied challenges is relaxed. Sometimes facial challenges are even “required in free-speech cases.” Connection Distrib. Co. v. Holder, 557 F.3d 321, 335 (6th Cir. 2009) (emphasis in original). “[T]he whole point of a facial challenge, or what the courts in the First Amendment context have come to call an overbreadth challenge, is to permit the claimant to strike the law in its entirety . . . .” Id.

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insulting comments regarding another student’s sexual orientation” chilled his speech. 521 F.3d at 605. Unlike Speech First, Morrison didn’t dispute the constitutionality of the school rule as written. Id. at 608. He challenged only the rule as applied to him. Id. But the rule had never actually been applied to him, nor had the school ever threatened to apply it to him, nor was the school likely to apply it to him in the future since the school board changed the rule shortly after litigation commenced. Id. at 607, 610. Because the school board took no specific action that supported Morrison’s fear of punishment, his choice to stay silent constituted only a “subjective chill” and thus he didn’t have an injury-in-fact for standing purposes. Id. at 610. In cases like Morrison, where the plaintiff brings an as-applied pre-enforcement challenge, it only makes sense to require “some specific action on the part of the defendant in order for the litigant to demonstrate an injury-in-fact.” Id. at 609. There must be some evidence that the rule would be applied to the plaintiff in order for that plaintiff to bring an as-applied challenge. But Speech First is not bringing an as-applied challenge. Speech First is challenging Michigan’s “harassment” and “bullying” definitions for overbreadth on their face.
The distinction between facial and as-applied challenges bears legal significance when assessing standing. In Dambrot v. Central Michigan University, the court found that Central Michigan students had standing to challenge their university’s discriminatory-harassment policy. See 55 F.3d 1177, 1182, 1192 (6th Cir.1995). The students hadn’t been punished under the policy, nor had the university acted concretely so as to threaten them with punishment. See id. at 1182. Yet, because the students were bringing a facial overbreadth challenge, the court found that the students had standing, even if they had “not yet [been] affected by [the policy.]” Id. See also Adult Video Ass’n v. U.S. Dep’t of Justice, 71 F.3d 563, 566–67 (6th Cir. 1995) (drawing the same distinction between facial challenges and as-applied challenges).
The final issue is mootness. The district court held that Speech First was not likely to succeed on its claim challenging the definitions of bullying and harassing because it found that claim moot. We disagree with the district court’s determination. In addition to requiring that a party have standing, the Constitution’s case or controversy requirement mandates that a claim must not become moot prior to the court’s decision on the merits. “[A] case is moot when the

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issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969).
Voluntary cessation of the alleged illegal conduct does not, as a general rule, moot a case and “deprive the tribunal of power to hear and determine the case.” Los Angeles Cty. v. Davis, 440 U.S. 625, 631 (1979) (quoting United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953)). Voluntary cessation will only moot a case where there is “no reasonable expectation that the alleged violation will recur,” and “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Davis, 440 U.S. at 631 (cleaned up). “The burden of demonstrating mootness is a heavy one.” Id.
Although the bar is high for when voluntary cessation by a private party will moot a claim, the burden in showing mootness is lower when it is the government that has voluntarily ceased its conduct. When a private party has voluntarily ceased its alleged illegal conduct, the Supreme Court has explained that “[a] case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). We have noted, however, “that ‘cessation of the allegedly illegal conduct by government officials has been treated with more solicitude by the courts than similar action by private parties’ and that ‘[the government’s] self-correction provides a secure foundation for a dismissal based on mootness so long as it appears genuine.’” Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 981 (6th Cir. 2012) (quoting Mosley v. Hairston, 920 F.2d 409, 415 (6th Cir. 1990)). As the Ninth Circuit has commented, government action receives this solicitude because courts assume “that [the government] acts in good faith.” Fikre v. FBI, 904 F.3d 1033, 1037 (9th Cir. 2018) (citation omitted). Namely, we presume that the same allegedly wrongful conduct by the government is unlikely to recur. See Friends of the Earth, 528 U.S. at 189. See also 13C Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Juris. § 3533.7 (3d ed. 2008) (“Courts are more likely to trust public defendants to honor a professed commitment to changed ways; individual public defendants may be replaced in office by new individuals, with effects that have little parallel as to private defendants; remedial calculations may be shaped by radiations of public interest; administrative orders may seem to die or evolve in ways that leave

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present or future impact unclear.”). We have employed this solicitude for both legislative and non-legislative governmental actions. See Hanrahan v. Mohr, 905 F.3d 947, 961-62 (6th Cir. 2018); Ammex, Inc. v. Cox, 351 F.3d 697, 705 (6th Cir. 2003).
The University’s voluntary cessation receives the same amount of solicitude as any analogous government action would. The University is a public entity, provided for in the Michigan Constitution, and run by state officials. Mich. Const. Art. VIII, § 5. Although it is not part of the executive, it acts in many ways as the executive branch and is presided over by duly elected Regents who appoint the University President. Id. Because it is an arm of the state government, it receives the same presumption that it acts in good faith.
While all governmental action receives some solicitude, not all action enjoys the same degree of solicitude. Determining whether the ceased action “could not reasonably be expected to recur,” Friends of the Earth, 528 U.S. at 189, takes into account the totality of the circumstances surrounding the voluntary cessation, including the manner in which the cessation was executed.
Where the government voluntarily ceases its actions by enacting new legislation or repealing the challenged legislation, that change will presumptively moot the case unless there are clear contraindications that the change is not genuine. See Hill v. Snyder, 878 F.3d 193, 204 (6th Cir. 2017) (“Legislative action ordinarily moots a case midstream, when a challenged provision is repealed or amended during the pendency of the litigation.”); City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 n.10 (1982) (finding that legislative action did not moot the case because of the legislature’s announced intention of reenacting the statute). See also Jones v. Haynes, 736 F. App’x 585, 589 (6th Cir. 2018); Bench Billboard Co., 675 F.3d at 982; Ky. Right to Life, Inc. v. Terry, 108 F.3d 637, 645 (6th Cir. 1997); Mosley, 920 F.2d at 415.
On the other hand, where a change is merely regulatory, the degree of solicitude the voluntary cessation enjoys is based on whether the regulatory processes leading to the change involved legislative-like procedures or were ad hoc, discretionary, and easily reversible actions.
If the discretion to effect the change lies with one agency or individual, or there are no formal processes required to effect the change, significantly more than the bare solicitude itself is

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necessary to show that the voluntary cessation moots the claim. See Carpenter-Barker v. Ohio Dep’t of Medicaid, 752 F. App’x 215, 222–23 (6th Cir. 2018), cert. denied, 139 S. Ct. 928 (2019) (finding the case not mooted by voluntary cessation where rulemaking authority lay solely with the defendant); Akers v. McGinnis, 352 F.3d 1030, 1035 (6th Cir. 2003). See also United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1537 (2018) (holding that a change of policy by the Southern District of California did not moot an issue when the Southern District intended to reinstate its policy once it was not bound by the court of appeals); Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 n.1 (2017) (changing a policy at the direction of the governor did not moot the case).
Where regulatory changes are effected through formal, legislative-like procedures, we have found that to moot the case the government need not do much more than simply represent that it would not return to the challenged policies. See Hanrahan, 905 F.3d at 961–62 (“The new policies were formally promulgated and approved by the [department] director after a lengthy internal process. And there is no indication that [department] will return to its previous policies, and the defendants have represented that the new policies will remain in place. Thus, we conclude that the ‘self-correction’ ‘appears genuine.’”); Youngstown Publ’g Co. v. McKelvey, 189 F. App’x 402, 405 (6th Cir. 2006) (finding that the election of a new mayor who did away with a previous administration’s edict mooted the case).
Here, the University notes that the new definitions were “approved by senior University officials, including the University’s president.” The University has not, however, pointed to any evidence suggesting that it would have to go through the same process or some other formal process to change the definitions again. Thus, the solicitude the University receives is the same as any ad hoc regulatory action would. Which is to say that the solicitude does not relieve the University of much of its burden to show that the case is moot.
The University has not affirmatively stated that it does not intend to reenact the challenged definitions. The University cites to University Vice President for Student Affairs Royster Harper’s testimony that the new definitions “‘and no others’ will govern the initiation and conduct of disciplinary proceedings.” All this statement stands for, however, is that the new definitions are what the University intends to use presently. It does not indicate any future

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intentions. Although the University characterizes this construction of Harper’s statement as “hair-splitting,” it is simply not a meaningful guarantee that the definitions will remain the same in the future. We do not assume that words mean more than what they say. Further, there is no evidence in the record that Harper—or any potential future Vice President for Student Affairs—has control over whether the University will reimplement the challenged definitions. So even if Harper stated that the University would never reenact the challenged definitions, it is difficult to understand why that statement should be construed to have any binding or controlling effect as far as mootness goes.
The timing of the University’s change also raises suspicions that its cessation is not genuine. The University removed the definitions after the complaint was filed. If anything, this increases the University’s burden to prove that its change is genuine. See A. Philip Randolph Inst. v. Husted, 838 F.3d 699, 713 (6th Cir. 2016) rev’d on other grounds, 138 S. Ct. 1833 (2018) (“[T]he circumstances of the Secretary’s issuance of the new form do not inspire confidence in his assurances regarding the likelihood of recurrence—he issued that new form on the same day as the parties’ final merits briefs were due before the district court, attaching the form as an exhibit to his brief and only then presenting his mootness argument. This fact makes the Secretary’s voluntary cessation appear less genuine.”); Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323, 342–43 (6th Cir. 2007) (“In this case, that burden is increased by the fact that the voluntary cessation only appears to have occurred in response to the present litigation, which shows a greater likelihood that it could be resumed.”). The University states that “before the complaint was filed,” it was in the process of “review[ing] . . . the University’s website and policies to ensure their consistency with principles of free speech.” There is no indication, however, that the University was so much as considering changing the definitions as part of its review. Without any indication that its review would have resulted in changing or removing the definitions, the fact of the review does not buttress the legitimacy of the University’s actions. Nor does it explain the expedient timing of the definition’s removal.
Significantly, the University continues to defend its use of the challenged definitions. Although not dispositive, the Supreme Court has found whether the government “vigorously defends the constitutionality of its . . . program” important to the mootness inquiry. Parents

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Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719 (2007). In its response to Speech First’s motion for a preliminary injunction, the University argued that “[e]ven before the University streamlined its definitions, the prohibition on harassing and bullying easily met constitutional standards.” The University argued that the definitions were acceptable because they were situated alongside definitions that were legal in nature and that the legal definitions “set forth specific elements of the offenses.” Additionally, the University argued that the Statement “specifically affirmed students’ free speech rights, including the right to ‘voic[e] unpopular views and dissent,’” and therefore there was no way the definitions could “have reasonably been understood as encroaching on students’ First Amendment prerogatives.” The University contends that its arguments in response to the preliminary injunction motion are not the same as defending the definition’s constitutionality. If those arguments do not constitute a defense of its practices, we would be hard pressed to come up with anything that would.
In sum, the University has not put forth enough evidence to satisfy its burden to show that its voluntary cessation makes it “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, 528 U.S. at 189. Therefore, Speech First’s claim challenging the definitions of bullying and harassing behavior is not moot.
In assessing Speech First’s likelihood of success on the merits, the district court did not address the merits beyond what was necessary for determining mootness and standing. Although we find that the district court was incorrect in its determination of Speech First’s standing to challenge the Response Team and whether the challenge to the definitions of bullying and harassing was moot, we will not resolve the ultimate question of Speech First’s likelihood of success on the merits. Instead, we remand this case for the district court to consider in the first instance Speech First’s likelihood of success in light of our findings here. Further, although we review the district court’s findings on the likelihood of success de novo, we grant the district court substantial deference in its weighing of the preliminary injunction factors. Therefore, we decline Speech First’s invitation to instruct the district court to issue the preliminary injunction, especially in light of the district court’s findings that the other three preliminary injunction considerations weigh against granting the preliminary injunction. For a similar reason, we also decline the dissent’s suggestion that we affirm the district court’s decision. Even if the other

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three factors weigh against a preliminary injunction, the district court may still grant one if it determines that, in light of our holding, Speech First does have a strong likelihood of success. This is a distinct possibility because “when a party seeks a preliminary injunction on the basis of a potential constitutional violation, likelihood of success on the merits will often be the determinative factor.” Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012).
III
For the foregoing reasons, we VACATE the judgment of the district court and REMAND for further proceedings consistent with this opinion.

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_________________
DISSENT _________________
HELENE N. WHITE, Circuit Judge, dissenting. In seeking a preliminary injunction, Speech First bears the burden of establishing a strong likelihood of prevailing, including on the issue of standing. See Waskul v. Washtenaw Cty. Cmty. Mental Health, 900 F.3d 250, 255 n.3, 256 (6th Cir. 2018); id. at 259 (Stranch, J., concurring). Because Speech First failed to meet its burden, and because the district court correctly found that the remaining preliminary-injunction factors weigh against it, I would affirm the district court’s denial of a preliminary injunction.
Bias Response Team. There is no evidence in the record that any of the anonymous students have had any interaction with the Response Team, that any outreach is imminent, or that any such outreach would result in any “concrete harm.” See Laird v. Tatum, 408 U.S. 1, 13 (1972). The majority nevertheless concludes that Speech First “has standing”—by which it presumably means that Speech First has established a strong likelihood of standing—to challenge the Response Team because “the Response Team acts by way of implicit threat of punishment and intimidation to quell speech,” based on the Response Team’s ability to make referrals and the supposed implicit threat that an invitation to meet carries. (Maj. Op. at 7.) In reaching this conclusion, the majority improperly places the evidentiary burden on the University and disregards the evidence in the record.
The majority’s reliance on the ability of Response Team members to make referrals is unavailing. As an initial matter, the evidence is unclear about whether the Response Team itself refers any matters to the OSCR or police department. Evelyn Galvan, one of two Bias Incident Prevention and Response Team Coordinators on the Response Team, submitted a declaration stating:
If the reporter or I believe that the reported bias incident possibly constitutes a violation of a law or the Statement of Student Rights and Responsibilities, I may also discuss with the reporter the possibility of him or her making a report to the Division of Public Safety and Security or filing a complaint with the [OSCR]. Although a [Bias Response Team (“BRT’)] member could serve as the complainant in an OSCR proceeding, I am not aware of that ever happening.

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Furthermore, BRT does not make an independent determination as to whether the conduct constitutes a Statement violation, nor does it conduct any investigation to make such a determination.
(R. 18-3, PID 388–89.) Although the district court did not discuss this argument in its opinion— Speech First never fully developed the argument that the referral power establishes standing—its recitation of the facts accepts the statements in Galvan’s declaration, and that determination has not been shown to be clearly erroneous.
Further, as the majority acknowledges, even if the Response Team does refer matters to the OSCR or police in appropriate circumstances (such as when a violation of the Statement or a crime has occurred), it is not the Response Team that imposes any punishment for this violation of the Statement or the law; rather, that is left to the independent determination of the OSCR or the police. As Speech First acknowledged below, “[a]ny student, faculty member, or staff member may submit a complaint to the [OSCR] alleging a violation of the Statement” (R. 4, PID 95), and anyone can likewise file a report with the police. Thus, even if Response Team members did refer reported conduct to the OSCR or police, any member of the University community was already able to do so. Regardless, because there is no evidence that a Response Team member has or would refer a “bias incident” to the OSCR or police without that incident constituting a violation of the Statement or a crime, the Response Team itself poses no threat of a concrete harm.
The sole case the majority relies on to support its conclusion is readily distinguishable. In Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), the Rhode Island Commission to Encourage Morality in Youth sent dozens of notices to a publication distributor stating that certain publications it distributed were inappropriate for sale to youths. Id. at 59–61. The Supreme Court characterized the notices as “phrased virtually as orders, reasonably understood to be such by the distributor,” which were “invariably followed up by police visitations, [and] in fact stopped the circulation of the listed publications ex proprio vigore.” Id. at 68. The Court thus concluded that the “record amply demonstrates that the Commission deliberately set about to achieve the suppression of publications deemed ‘objectionable’ and succeeded in its aim” through “a scheme of state censorship effectuated by extralegal sanctions.” Id. at 67, 72. The distributor’s “compliance with the Commission’s directives was not voluntary” given that

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“[p]eople do not lightly disregard public officers’ thinly veiled threats to institute criminal
proceedings against them if they do not come around.” Id. at 67–68. In contrast, as the district
court found, in this case “there is no evidence of any thinly veiled threat[]’ from the [Response
Team] to individuals reported to have engaged in ‘biased’ conduct.” (R. 25, PID 980 (first
alteration in original).)
The majority also relies on the mere invitation from a Response Team member to meet
with the subject of the report—an invitation that, based on the evidence, only rarely is extended
and is even more rarely accepted—reasoning that this could be threatening because the “referral
power lurks in the background of the invitation.” (Maj. Op. at 7.) The majority then speculates
that it is “possible” that “a student who knows that reported conduct might be referred to police
or OSCR could understand the invitation to carry the threat: ‘meet or we will refer your case.’”
(Id.) But the record to date only reflects that one student has ever accepted the invitation to
meet, strongly supporting an inference that students do not feel compelled to meet. Further,
although the majority acknowledges that actually “[a]ttending the meeting is voluntary,” the
majority claims that these facts do not matter because “the record is silent as to whether being
labeled ‘voluntary’ ameliorates any of these objectively implied threats.” (Id. at 8.) Rather than
rely on speculation and fault the University for the absence of evidence—even though Speech
First bears the burden on this question—the district court appropriately examined the evidence in
the record and correctly concluded that Speech First failed to meet its burden.
The evidence in the present matter similarly reflects no threats—direct, subtle, or implied—from the BRT. . . . Speech First presents no evidence of any communication from the BRT to an individual reported to have engaged in “bias” or “biased conduct” conveying something different—more specifically, pressure or an intimation that some form of punishment or adverse action will follow the failure to accede [to] the BRT’s requests.
The evidence does not even reflect an instance where the BRT criticized the speech of an individual who is reported to have engaged in biased conduct. But even if the record reflected that the BRT had criticized an individual’s speech, there would be no First Amendment violation “in the absence of some actual or threatened imposition of governmental power or sanction.” Penthouse Int’l[, Ltd. v. Meese, 939 F.2d 1011, 1015 (D.C. Cir. 1991)]. The Court agrees with defense counsel’s assertion at the motion hearing that a university should be able to address a student when his or her speech may offend or hurt other students without running afoul of the First Amendment. As counsel stated:

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That’s education. That’s what a professor should do. That’s what the university should do when someone comes to a body that’s created in order to promote respect and understanding on the campus. Respect and understanding are not enemies of the First Amendment. . . . Respect is a condition for effective speech. Understanding is the goal of speech.
In short, Speech First fails to demonstrate that the BRT poses a concrete or objective threat of harm to the First Amendment rights of University students.
(R. 25, PID 981–83 (fourth alteration in original).)
The majority does not identify any clear error in the district court’s factual findings. Based on those findings, I agree with the district court that Speech First failed to meet its burden to establish a strong likelihood of establishing standing to challenge the Response Team.
“Harassment” and “Bullying” Definitions. The majority also concludes that Speech First established a strong likelihood of establishing standing to challenge the Statement’s definition of harassment and bullying. The University disputes that conclusion, relying primarily on Morrison v. Board of Education of Boyd County, 521 F.3d 602 (6th Cir. 2008). I find Morrison materially indistinguishable from this case.
In Morrison, a student who believed that homosexuality is a sin and that it was his responsibility to speak out about it challenged his high school’s policy “prohibiting students from making stigmatizing or insulting comments regarding another student’s sexual orientation.” 521 F.3d at 605. After the student filed a lawsuit, the school board changed the policy to permit anti-homosexual speech unless it was “sufficiently severe or pervasive that it adversely affects a student’s education or creates a climate of hostility or intimidation for that student, both from the perspective of an objective educator and from the perspective of the student at whom the harassment is directed.” Id. at 607. The majority found no standing to challenge the school board’s initial policy—a conclusion that is more definitive than merely denying a preliminary injunction for failure to establish a strong likelihood of standing:
The claim at stake here involves Morrison’s choice to chill his own speech based on his perception that he would be disciplined for speaking. But whether he would have been so punished, we can only speculate. The school district—again, the actual defendant here—stated that its former discipline policy regarding

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instances of harassment or discrimination “shall not be interpreted as applying to speech otherwise protected under the state or federal constitutions where the speech does not otherwise materially or substantially disrupt the educational process.” The record is silent as to whether the school district threatened to punish or would have punished Morrison for protected speech in violation of its policy. Morrison asks us, essentially, to find a justiciable injury where his own subjective apprehension counseled him to choose caution and where he assumed—solely on the basis of the Board’s 2004-05 policies and without any specific action by the Board—that were he to speak, punishment would result. We decline to do so. Absent a concrete act on the part of the Board, Morrison’s allegations fall squarely within the ambit of “subjective chill” that the Supreme Court definitively rejected for standing purposes. Laird, 408 U.S. at 13, 92 S. Ct. 2318 (quotation marks omitted). Morrison cannot point to anything beyond his own “subjective apprehension and a personal (self-imposed) unwillingness to communicate,” ACLU [v. NSA, 493 F.3d 644, 662 (6th Cir. 2007)], and those allegations of chill, without more, fail to substantiate an injury-in-fact for standing purposes.
Id. at 610.1
Similarly, here, the Statement itself says that “[s]tudents at the University have the same
rights and protections under the Constitutions of the United States and the State of Michigan as
other citizens” and specifically notes that “[t]hese rights include freedom of expression, press,
religion, and assembly. The University has a long tradition of student activism and values
freedom of expression, which includes voicing unpopular views and dissent.” (R. 4-2, PID 126.)
And there is no evidence that the University has ever punished students who engaged in only
protected speech like the speech in which the anonymous students allegedly want to engage. The
Dean of Students submitted a lengthy declaration summarizing numerous groups, events, and
speakers at the University that expressed views similar to those allegedly held by Students A, B,
and C. “None of the students who have engaged in any of the speech or speech-related activities
described . . . have been subjected to any disciplinary action or any threat of disciplinary action.”
(R. 18-5, PID 452.) Director of OSCR, Erik Wessel, submitted a declaration stating that “no
student has ever been sanctioned under the harassing and bullying provision of the Statement for
expressing views like those held by Students A, B and C regarding such political or policy issues

1Judge Moore dissented and persuasively argued that the “policy itself amounted to a specific threat regarding future harm and is sufficient to confer standing on” the student. 521 F.3d at 619 (Moore, J., dissenting).

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as gun rights, illegal immigration, abortion, welfare, affirmative action, gender identity, or gender equity.” (R. 18-8, PID 926.) “If a complaint were submitted that alleged that the respondent had expressed views like those held by Students A, B and C, the complaint . . . would be dismissed.” (Id.) “In sum, I can assure Students A, B and C that they are free to engage in open and robust debate on any of the topics mentioned in the Complaint and to express any opinions or beliefs they have on those subjects, no matter how unpopular or offensive those opinions or beliefs may be, without any fear of a disciplinary proceeding.” (Id.)
Speech First submitted no contradictory evidence. Although the district court relied on defense counsel’s representation at a hearing that the anti-harassment or anti-bullying provisions have been enforced against sixteen students—one of the only facts cited by the majority— defense counsel also made clear that the provisions were not enforced against protected speech by itself, and that ten of the sixteen cases involved violence or threats of violence.
Speech First argues that Morrison is distinguishable, asserting that the majority opinion in that case was grounded in the belief that no objective student could have thought that the relevant policies would cover a student expressing his belief that homosexuality is a sin. Nothing in the opinion supports this reading, however. Rather, the Morrison majority stated that “a litigant alleging chill must still establish that a concrete harm—i.e., enforcement of a challenged statute—occurred or is imminent”; relied on a portion of the policy, similar to language in the Statement here, that the policy would not apply to speech otherwise protected by the Constitution; noted that the record was silent about whether the school district would have punished the student; and ultimately rejected the student’s challenge because it was made “solely on the basis of the Board’s 2004-05 policies and without any specific action by the Board.” Morrison, 521 F.3d at 610 (citation omitted).
The majority also believes Morrison is distinguishable because the plaintiff in Morrison brought only an as-applied challenge, whereas Speech First raises a facial challenge. Speech First did not make this argument, either below or on appeal. Further, the majority in Morrison did not make this distinction. In fact, it rejected this majority’s apparent conclusion that the overbreadth doctrine allows for a relaxed version of standing for those making facial challenges: “the doctrine of overbreadth relies on a ‘chill’ theory to permit a litigant—who already has

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standing by virtue of demonstrating a concrete harm—to challenge a rule that may only affect
others.” Id. (citing Midwest Media Prop., L.L.C. v. Symmes Township, 503 F.3d 456, 463 (6th
Cir. 2007); United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375, 1379 (6th Cir.
1984)). And in formulating the framework for its analysis, the Morrison majority relied on cases
addressing facial challenges on overbreadth grounds. Our cases interpreting Morrison likewise
indicate that Morrison’s articulation of standing is not limited to as-applied challenges, as we
have cited Morrison and applied the standard from Morrison in determining whether a plaintiff
has standing to assert a facial challenge, including to a university’s policy. See Savage v. Gee,
665 F.3d 732, 741 (6th Cir. 2012); see also Fieger v. Mich. Supreme Court, 553 F.3d 955, 662–
64 (6th Cir. 2009) (discussing Morrison at length in determining whether the plaintiff had
standing to make a facial overbreadth challenge to professional-conduct rules). Accordingly, the
majority’s attempt to distinguish Morrison is unpersuasive.2
Speech First also relies on McGlone v. Bell, 681 F.3d 718, 731 (6th Cir. 2012). There,
the court discussed Morrison at length and concluded it was distinguishable because in McGlone
there were additional facts, beyond just a written policy, that resulted in an objective chill:
Here, the record is not “silent” as to a threat of punishment. McGlone is alleging more than the apprehension based on a written policy. McGlone attempted to seek a waiver of the fourteen-day notice requirement by speaking in the south patio/plaza area of the campus. He was denied the waiver and was told that he could only speak on the north patio. Furthermore, he was approached by a campus police officer who threatened to arrest him for trespass if he did not stop
2The primary case the majority relies on is unhelpful, as the case did not conduct a standing analysis. Rather, it made one mention of standing as follows: “The overbreadth doctrine provides an exception to the traditional rules of standing and allows parties not yet affected by a statute to bring actions under the First Amendment based on a belief that a certain statute is so broad as to ‘chill’ the exercise of free speech and expression.” Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1182 (6th Cir. 1995). We have since clarified that “overbreadth creates an exception only to the prudential standing inquiry,” Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 350 (6th Cir. 2007), and reaffirmed that to raise a facial overbreadth challenge a party must establish that a concrete harm beyond a mere subjective chill has either occurred or is imminent, see Savage, 665 F.3d at 740; see also Phillips v. DeWine, 841 F.3d 405, 417 (6th Cir. 2016) (rejecting as “simply lack[ing] merit” plaintiffs’ argument that they have standing to challenge a law “as overbroad or facially invalid ‘even if [they] have not themselves suffered or been threatened with actual injury’” because “this exception applies only to the prudential standing doctrines, such as the prohibition on third-party standing, and not to those mandated by Article III itself, such as the injury-in-fact requirement” (second alteration in original)). The other case the majority cites appears to have misconstrued the quote in Dambrot as applying to Article III standing and suggests in dicta that a party has Article III standing to make a facial challenge to a law simply by stating a belief that a law is so broad that it chills expression. See Adult Video Ass'n v. U.S. Dep't of Justice, 71 F.3d 563, 566–67 (6th Cir. 1995).

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speaking and leave the campus. Appellees also sent a letter to McGlone notifying him that he would not be allowed on campus if he did not first obtain permission. We hold that McGlone has suffered an injury in fact that is concrete and particular. He was not allowed to speak on campus and was not afforded a waiver. His First Amendment rights have also been objectively chilled by the threat of arrest. The injury is actual, as it already occurred and will imminently occur again if he violates the policy.
Id. (emphasis added). Thus, the court in McGlone held that the plaintiff had standing to challenge the relevant policy, both on its face and as applied. Unlike McGlone, all that Speech First and the majority can point to are allegations that students feel subjectively chilled and sixteen incidents that did not involve these anonymous students or protected speech resembling what these students allegedly want to say. On this record and applying this court’s precedents, Speech First did not meet its burden to establish a strong likelihood of standing.
Denial of the Preliminary Injunction. The majority declines Speech First’s invitation to grant a preliminary injunction, recognizing that such relief would be unjustified given the district court’s findings that the other three preliminary-injunction considerations weigh against granting a preliminary injunction. This is ample reason to affirm the district court’s discretionary determination even assuming that its standing and mootness determinations were erroneous. Although, as the majority notes, we have previously explained that “when a party seeks a preliminary injunction on the basis of a potential constitutional violation, likelihood of success on the merits will often be the determinative factor,” Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012), here there is no threat of current harm from the challenged definitions because they are not in effect. Accordingly, at least as to the challenged definitions, there is no reason to presume that there will be irreparable injury, substantial harm to others, or that the public interest would be served by the issuance of the injunction because all that is alleged is a past constitutional injury. See Gale v. O’Donohue, 751 F. App’x 876, 885 (6th Cir. 2018).
I would affirm the district court’s denial of Speech First’s motion for preliminary injunction.

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 18-1917

SPEECH FIRST, INC., Plaintiff - Appellant,
v.
MARK SCHLISSEL, in his official capacity as President of the University of Michigan, et al.,
Defendants - Appellees.

FILED
Sep 23, 2019
DEBORAH S. HUNT, Clerk

Before: COOK, McKEAGUE, and WHITE, Circuit Judges.
JUDGMENT
On Appeal from the United States District Court for the Eastern District of Michigan at Flint.
THIS CAUSE was heard on the record from the district court and was argued by counsel.
IN CONSIDERATION THEREOF, it is ORDERED that the judgment of the district court is VACATED, and the case is REMANDED for further proceedings consistent with the opinion of this court.
ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
 Case 4:18-cv-11451-LVP-EAS ECF No. 35-1 filed 10/28/19 PageID.1090 Page 1 of 5
AGREEMENT
This Agreement (the "Agreement") is entered into on the date of signature of the last signatory to this Agreement ("Effective Date") by and between Speech First, Inc. ("Speech First") on the one hand and the University of Michigan ("University") on the other (collectively, the "Parties") as follows:
A WHEREAS, by complaint filed on May 8, 2018, Speech First brought claims against fourteen University officers, employees, and members of the University's Board of Regents, all in their official capacities ("Defendants"), in the matter styled Speech First, Inc. v. Schlissel, et al., 18-cv-11451-LVP-EAS (E.D. Mich.) ("Action");
B. WHEREAS, on May 11, 2018, Speech First moved for a preliminary injunction relating to its claims concerning certain then-existing definitions of "harassing" and "bullying" posted on the University's website in connection with the University's Statement of Student Rights and Responsibilities, as well as concerning aspects ofthe University's then-existing Bias Response Team;
C. WHEREAS Defendants opposed Speech First's motion;
D. WHEREAS, after briefing and oral argument, the District Court denied Speech First's motion for a preliminary injunction on August 6, 2018;
E. WHEREAS Speech First appealed the District Court's ruling to the United States Court of Appeals for the Sixth Circuit;
F. WHEREAS, on September 23, 2019, a divided panel of the Sixth Circuit issued a decision vacating the District Court's ruling and remanding for further proceedings in the District Court; and
G. WHEREAS, the Parties have determined that it is in their mutual interests to amicably resolve all issues between them.
NOW, THEREFORE, in consideration of the foregoing and of the mutual undertakings of the Parties set out herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows :
1. With respect to the Statement of Student Rights and Responsibilities, the University removed certain definitions of"bullying" and "harassing" from its website on June 11 , 2018, and adopted definitions that solely derive from state law. The University will not reinstate the removed definitions. The University and Speech First agree that the current definitions of "bullying" and "harassing" included on the University's website are acceptable.
2. As of the beginning of the 2019-20 academic year, the University replaced the "Bias Response Team" with "Campus Climate Support" ("CCS"). The University will not reinstate the Bias Response Team.

Case 4:18-cv-11451-LVP-EAS ECF No. 35-1 filed 10/28/19 PageID.1091 Page 2 of 5
3. According to the University ' s current website: "CCS works to ensure that appropriate University resources and expertise are made available to anyone who feels they have been harmed or negatively impacted. Anyone who feels they have been affected by a campus climate concern is encouraged to make a report to CCS, so the University can offer assistance. CCS is not a disciplinary body, cannot impose discipline, and does not require participation in any aspect of CCS' s work. Its purpose is to support students, faculty or staff connect to resources and, over time, to contribute to the maintenance of respect and understanding among members of the University community."
4. The University's position on the CCS is as follows : CCS works to ensure that appropriate University resources and expertise are made available to students, staff, and faculty, and participation in CCS activities is voluntary. CCS is not and will not be a disciplinary body, and CCS staff will not require or solicit participation in any CCS activities from a student or student group about whom a concern has been raised to the CCS.
5. Nothing herein is intended to otherwise prevent University administrators or faculty from contacting a student or student group for any reason when they deem it appropriate in the performance of their roles with the University .
6. Speech First takes no position on the University's representations about the CCS or the CCS 's legality. Speech First reserves all rights to file a new lawsuit with respect to CCS.
7. Within 2 business days of the Effective Date, Speech First shall file a Notice of Dismissal in the form attached hereto as Exhibit 1, dismissing with prejudice all claims pending against Defendants in the Action.
8. The Parties shall bear their respective attorneys' fees, costs, and expenses relating to the Action and this Agreement.
9. Nothing contained in this Agreement shall be deemed as an admission of any liability or lack of merit in any claim or defense, by any Party or any Defendant.
10. This Agreement represents the full and complete agreement between the Parties to resolve their dispute. Any representations, warranties, promises, or conditions, whether written or oral, not specifically incorporated into this Agreement shall not be binding upon the Parties. All other discussions, negotiations, and writings have been and are merged into this Agreement.
11 . Neither this Agreement nor any term or provision hereof may be changed, waived, discharged or terminated except by an instrument in writing duly signed by the Party against which enforcement of the change, waiver, discharge, or termination is sought.
12. This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan applicable to contracts made and to be performed wholly within the State of Michigan, wi thout regard to its conflict of laws provisions.
13 . All parties hereto agree that in the event of any ambiguity or dispute regarding the interpretation of this Agreement, the Agreement will be interpreted as if each Party hereto participated equally in the drafting hereof.
2

Case 4:18-cv-11451-LVP-EAS ECF No. 35-1 filed 10/28/19 PageID.1092 Page 3 of 5

14. This Agreement may be signed in two or more original counterparts, each ofwhich shall for all purposes be considered an original of this Agreement. Execution and delivery of this Agreement by facsimile or other electronic means (including via e-mail or .pdf) shall be sufficient for all purposes and shall be binding on any person or Party who so executes.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date set forth above.

Date: \ C11.0 J\'\

By: \'J \L{)\e,
c---y~~ .
University of Michigan

3

Case 4:18-cv-11451-LVP-EAS ECF No. 35-1 filed 10/28/19 PageID.1093 Page 4 of 5
EXHIBIT 1
4

Case 4:18-cv-11451-LVP-EAS ECF No. 35-1 filed 10/28/19 PageID.1094 Page 5 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

)

SPEECH FIRST, INC.,

)

)

)

Plaintiff,

) Civil No. 4:18-cv-11451-LVP-EAS

v.

) Hon. Linda V. Parker

MARK SCHLISSEL, et al.,

) Mag. Judge Elizabeth A. Stafford )

)

)

Defendants.

)

--------------------------~)

NOTICE OF DISMISSAL

Plaintiff Speech First, Inc. hereby dismisses all claims with prejudice. Each party

to bear its own costs, expenses, and attorneys' fees .

5