University of Michigan policies prohibiting harassment and bullying on campus are unconstitutional and cannot be enforced, the Justice Department said Monday in siding with a free-speech group that has challenged the school in court.
The Trump administration argued that the school policies trample on students’ First Amendment rights because they fail to define the scope of banned words or actions. The government also challenged the legality of a specialized team of administrators and law enforcement officials that it says is responsible for responding to allegations of bias on campus.
“Instead of protecting free speech, the University imposes a system of arbitrary censorship of, and punishment for, constitutionally protected speech,” Justice Department lawyers wrote.
In response, the university said the Justice Department had misstated school policy and mischaracterized the duties of its Bias Response Team.
The Michigan case marks the fourth time the Justice Department in the Trump administration has interjected itself into a First Amendment court dispute. Attorney General Jeff Sessions has repeatedly chastised universities for what he says are efforts to restrict free speech and shield students from what may be unpopular or minority opinions on college campuses.
In the last year alone, the Justice Department has challenged rules for campus speakers at the University of California, Berkeley, and contested designated “free speech zones” or boundaries at colleges in Georgia and California. In each instance, the department has filed what is known as a statement of interest — a document that alerts the court to the federal government’s position in an ongoing private lawsuit.
In the Michigan case, the department sided with a free-speech advocacy group known as Speech First, Inc. in arguing against the university’s anti-bullying policies, which are laid out in the school’s Statement of Student Rights and Responsibilities.
Justice Department lawyers said the policies unfairly allow for students to be disciplined for comments that a listener finds hurtful or bothersome, thereby banning a wide range of First Amendment speech. The department said the university does not clearly define what type of speech or action might be considered harassing or bullying.
“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,” the lawyers wrote. “But state-run institutions like the University also must uphold the bedrock guarantees enshrined in the First Amendment.”
Speech First sued last month.
A spokesman for the university, Rick Fitzgerald, said in a statement that the Justice Department and Speech First have “seriously misstated University of Michigan policy and painted a false portrait of speech on our campus.”
He said the university’s bias response team doesn’t investigate claims of bias or have the authority to impose discipline, but simply provides “support to students on a voluntary basis.”
“U-M prohibits ‘harassing’ and ‘bullying,’ but the definitions of those terms have just been streamlined and are based on provisions of Michigan law that have been upheld by the courts,” the statement said.