Opinion | Michigan colleges trample free speech. My bill protects speech.

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.

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Kevin Grand
Tue, 05/07/2019 - 7:19am

Remember when colleges actually encouraged people to freely promote and debate various ideas and philosophies?

It really shouldn't come to no surprise where (and how) the snowflake generation was indoctrinated.

Tue, 05/07/2019 - 11:19am

Remember when only wealthy white men went to college, and they could debate philosophical works written by other wealthy white men for four years before inheriting their father's textile factory? Weren't those the days? Before we had to worry about whether hate speech was offensive because non-whites didn't warrant consideration. Before it was necessary for reactionary billionaires to create astroturf student organizations to drum up fake outrage among terrified geriatrics in order to peddle neocon trash and Chicago School economics? Weren't those the days

Tue, 05/07/2019 - 11:36am

"worry about whether hate speech was offensive" ...

and so what if it is offensive? The concept that hate speech is violence of itself is the new way ... that the very presence of a person who speaks words that could trigger snowflakes and create an unsafe place. That a person simply being invited to campus to speak is an act of violence against others. That those that dare disagree are labeled and receive the hecklers veto to keep them from being heard

You speak of the "old days" as if the concepts are antiquated while ignoring the woke ways are a construct of identity politics pushed by the new generation. And you avoid the premise of FREE speech ... as if that tidbit gets in the way of your agenda

Kevin Grand
Tue, 05/07/2019 - 12:19pm

Ah, Bones.

You never cease to disappoint.

Here the adults in the room are talking about promoting and defending ideas, and you dredge up the tired canard of "racism".

Wed, 05/08/2019 - 9:26pm

It may not fit your agenda, but in my memory of nearly 4 generations colleges have been admitting women and non-white and even foreign nationals to degree programs. With a few key strokes you could have found that U of M accepted women in late 1860s, 'blacks' the 1850s, Asians in the 1890s, MSU became coed in the 1870s, WMU also became coed in the 1870s, makes me wonder why you want to believe only 'white men' went to Michigan schools.
As for 'hate speech', the worst I saw was how the Vietnam soldiers had to listen from to what came from the proverbial 'soap boxes' of political speeches, these guys were only weeks out off the battlefield where they had been watching friends suffer and even die. And the universities did nothing to discourage it the verbal attacks they were exposed to, Administration of some schools in Michigan shutdown at the demand of those spewing the hate. Oh, and those veterans included 'white men' albeit they seemed young but maybe no so innocent.

Obviously, that was a time I was being introduced to the 'progressive' movement of its day. I learn a lesson to see those ranting their hate, even going face to face with the veterans shouting them down when they tried to talk and watch the calm and stoicism those young men showed and unwillingness to deal in kind. I don't know what you think 'fake' rage is, but if they are the 'geriatrics' that are supporting the youth who are raging against the 'progressives' of today trying to stamp out free speech, I believe they earned through their suffering to encourage those willing to stand where they stood and resist.
As I said the images and sounds stay and I can recall them today, try to imagine what tragedies the veterans had seen at the request of our politicians and then returned home to begin building a life and have to face the hate through verbal attacks when on campus going to classes. What I saw showed me the geriatrics' aren't terrified, they created the means to support those that are expressing what they learned the hard way.

David Waymire
Tue, 05/07/2019 - 11:41am

Remember when President Trump trampled on the rights of Colin Kapernick to express himself freely? And his audience stood an applauded that? I hope that this bill protects the rights of players who wish to similarly kneel to show their concerns.

Tue, 05/07/2019 - 7:30pm

While we can agree that Kapernick has the right kneel , stand with his fist clenched or burn the flag, does this mean that a public official is not allowed to speak disapprovingly of this, assuming they have a 1st ad. right right to express themselves also? I don't think so. This is a different matter from that official using the official levers of government power against a particular group or individual for their opinion. (Such as the IRS was doing under the Obama admin.)

Allen Wolf
Tue, 05/07/2019 - 10:35am

Representative Reilly seems to argue against his bill. If every court decision has upheld students rights to free speech, another piece of legislation would be unnecessary. What he isn’t saying is that he wants to eliminate a campus’ ability to put any limits on false, racist, sexist, conspiracy theory, neo-Nazi extremist speech. The purpose of colleges is to educate, not necessarily give equal time to every whacky point of view. Nazi Germany proved that unchecked hate speech leads to even more terrible outcomes.

Tue, 05/07/2019 - 12:09pm

"What he isn’t saying is that he wants to eliminate a campus’ ability to put any limits on false, racist, sexist, conspiracy theory, neo-Nazi extremist speech. "
What is Hate Speech? The SCOTUS has no definition. It does not exist. Speech is speech. The law under the First Amendment is clear: Hate speech is protected speech. Over 300 colleges and universities adopted hate speech codes in the early 1990s. Every one to be challenged in court was ruled unconstitutional. And there are good reasons for that. Just because you do not understand the reasons does not mean you are correct.

"The purpose of colleges is to educate, not necessarily give equal time to every whacky point of view. Nazi Germany proved that unchecked hate speech leads to even more terrible outcomes. "
The central principle of the First Amendment — and of academic freedom — is that all ideas and views can be expressed. Sometimes they are ideas and views that we might consider noble, that advance equality. Sometimes they might be ideas that we abhor. But there is no way to empower a government or campus administration to restrict speech without allowing for the possibility that tomorrow, it will be our speech that is restricted. Honestly, I don't get why smart people continue to miss this central point.

John Q. Public
Tue, 05/07/2019 - 8:04pm

Smart people don't.

James Wright
Tue, 05/07/2019 - 10:37am

Maybe you could spend your time more wisely fixing the roads then trying to fix a problem that doesn't exist.

Jonah 4
Tue, 05/07/2019 - 10:50am

I can understand some of Representative Reilly's concerns about free speech and free speech on campus. I well recall several colleagues while I was a college student talking about, threatening and attempting suicide. The college was very responsive in getting help for the students and none of us including those who attempted suicide were banned from talking about it.

However, speech has had limited freedom on college campuses over the years.
When I attended college in the 1950s, "free speech" was anything but because of the McCarthy garbage about communism. There were few legislators at the national and state level who were willing to stand up to that slimy character. For example, I was part of a collectivity of students forming an organization. We were cautioned by a professor to review the name we selected against the pile of organizational names that were assembled by McCarthy and his ilk to make sure that we didn't become the focus of an investigation by McCarthy and his followers.

I do appreciate Mr. Reilly's attempts to promote free speech on college campuses but keep in mind that people in his own party as well as in other political parties have fought too often to limit free speech. Work to restrict free speech continue to this day in this country and not just on college and university campuses.

james judge
Tue, 05/07/2019 - 11:00am

There is a line between free-speech on campus and interrupting my ability to get an education with disruptive speech... hence "speech zones". We should learn how to manage this for everyone.

Tue, 05/07/2019 - 2:27pm

It seems there is also an issue about being a responsible steward of taxpayer dollars. If a neo-Nazi group decides to stir up the waters by holding a rally on campus and the university is concerned about the tens of thousands of taxpayer dollars it will have to incur to provide extra security, is the university entirely without options in limiting the event in order to reduce the expense?

Tue, 05/07/2019 - 2:41pm

Two of the three finalists grew up outside of Michigan,were educated entirely outside of Michigan, and held jobs in school districts in other states. Michael Rice has had only one job in Michigan, his current position as superintendent of Kalamazoo Public Schools. Jeanice Swift has had only job in Michigan, her current position as Superintendent of Ann Arbor Public Schools. No doubt their experiences in other states has had a positive influence on their leadership style, and it appears that both were able to bring ideas from those experiences to their current position. To classify these two eminently qualified individuals as inbred in Michigan is dishonest at best. It distracts from their overall records of achievement.
Given the gross dysfunction we have had in Lansing, particularly with a legislature that seems clueless about public education, having someone familiar with that environment in the State Superintendent role can only be a plus.

Tue, 05/07/2019 - 7:34pm

It's about time! It's not just colleges, either; Free Speech is under attack everywhere!

Why, just yesterday I called my local megachurch to schedule my lecture about the Blessings of Wang Dong, the phallus god, and the Beauty of His marvelous creation. Those snowflakes VIOLATED my FIRST AMENDMENT RIGHTS and REFUSED to let me speak!

With stalwart Free Speech Warriors like Rep. Reilly, I know I can look forward to the day when DISAGREEING with someone doesn't mean SILENCING them!!!

Legal Mind
Wed, 05/08/2019 - 11:57am

The first amendment only applies to government attempts to limit speech. A private person or private organization may legally restrict speech in their own home or facilities. The proposed bill is meant to apply to rules and actions taken by state established institutions.

Tue, 05/07/2019 - 8:06pm

"My proposed legislation, House Bill 4436, would set requirements for campus speech policies..."

That's just substituting your policies for theirs. Want to do some good? Make campus speech policies illegal.

Kim Broekhuizen
Wed, 05/08/2019 - 3:43pm

U-M’s Bias Response Team is a simply a support resource for students as well as faculty--it's nothing more than that: Thus, makes referrals to other campus resources (including counseling) as appropriate.

It does not investigate reports or issue punishments. It was never set up as a disciplinary body and has no such authority. Students have no obligation to respond to a staff member connected with the team. And, in fact, very few students ever respond.

Plus, any fair review of our campus climate demonstrates that we have successfully hosted conservative speakers and presentations.