John Reilly is a state representative from Oakland Township
(Editor’s note: An earlier version of this guest commentary incorrectly stated that Kellogg Community College settled a lawsuit for an undisclosed amount of taxpayer money. Kellogg Community College disputes other characterizations in this commentary.)
When Katerina Klewes sought counseling after she was sexually assaulted, Northern Michigan University threatened her with disciplinary action if she shared “suicidal or self-destructive thoughts or actions” with her peers. The university said it was “important that [she] refrain from discussing these issues with other students.” In 2015, The Mining Journal reported 25 to 30 students were sent such emails every semester.
Anyone with a whit of common sense understands students contemplating suicide desperately need to share their life-threatening concerns with peers. The university’s speech policy was shockingly dangerous, blatantly self-serving, and in total violation of the First Amendment.
The ensuing Department of Justice investigation ended in a $173,500 settlement, which is only unusual among campus free speech cases in its amount. Universities lose or settle free speech cases all the time.
Western Michigan University settled for $35,000 plus attorney fees for charging exorbitant security fees for a rapper and social activist to address a student group. Grand Valley State University paid $11,000 to settle a lawsuit for its policy quarantining free expression to “speech zones” with prior approval.
Kellogg Community College settled a lawsuit for $55,000 when students were arrested for trespassing while distributing copies of the Constitution and Bill of Rights on campus.
When that embarrassing case was still pending, puffed-up campus officials told the Michigan House Oversight Committee they were confident they would prevail. Then they tried to mislead the court into thinking the students they put in handcuffs were not actually students. All had been cited for violating the Student Code of Conduct, which applies only to students. One was a student taking a semester off, and one actively-enrolled student was cited but not arrested.
The deception backfired, and KCC settled out of court. But that didn’t stop KCC from pitching the same deception at a more recent Oversight Committee hearing last month, on my campus free speech legislation. The committee was not fooled, and not pleased.
Campus officials try to downplay how often these incidents occur. The problem is these aren’t isolated incidents. My proposed legislation, House Bill 4436, would set requirements for campus speech policies that uphold students’ First Amendment rights to express themselves, form student groups, assemble in public areas, invite speakers, and be free of political pressure from the university as an institution. All of these provisions are consistent with court decisions – some that are flouted to this day.
In 1989, a federal court struck down the University of Michigan’s speech policy banning “stigmatizing or victimizing” speech toward races, sexes, and so on. A psychology graduate student asserted his theories and research into biologically-based differences between races and sexes might be perceived as racist or sexist and lead to sanctions. The court agreed his right to freely and openly discuss these theories was impermissibly chilled.
Yet today, the University of Michigan imposes an even more stringent speech policy on all students at all times, complete with its own police force: a campus-wide “Bias Response Team,” bullying and threatening students whose speech could be perceived ‒ as all speech can ‒ as “biased.”
Unsurprisingly, a federal lawsuit is pending.
After last month’s House committee hearing, a community college delivered a copy of its speech policy, unsolicited, to my office. The policy blatantly infringes on all students’ rights. It makes no distinction between the rights of students and those of street peddlers. It demands students obtain permission from the college for “expressive activity,” which is quarantined to “speech zones” in remote areas far from academic buildings. It generally bans all solicitation.
That policy is totally unconstitutional and exact replicas have been struck down repeatedly by federal courts. My other free speech legislation, House Bill 4435, would codify these rulings and prohibit public colleges from unlawfully shunting student speech to faraway “speech zones” or requiring permission from the college to engage in expressive conduct.
I don’t know whether their intent was to boast of their disregard for our efforts to protect the speech rights of students, or out of abject ignorance they thought this was actually a policy to be proud of. Free speech advocates report having seen both: some schools willfully trample the speech rights of their students; others are simply clueless about what a constitutional speech policy entails.
Either way, legislative intervention is long overdue. Thousands of students are waiting to be liberated from campus-wide censorship. Court victories have not been enough. State universities are free from state regulation in academics and business decisions but not in protecting the essential rights of citizens. Their unconstitutional policies demonstrate a prevailing concern for the political sensibilities of faculty and administrators, not the free-speech rights of the students.
The neglect for the First Amendment is a systemic failure, of colleges in Michigan and elsewhere.
More taxpayer-funded litigation is not the answer. Speech is free, but lawyers aren’t, and at this point, the courts are just repeating themselves. The guidelines for constitutional speech policies are clear – and it’s time to hold our public colleges and universities to them.