DOE v. MICHIGAN
721 F. Supp 852
September 22, 1989, Decided
JOHN DOE, Plaintiff, v. UNIVERSITY OF MICHIGAN, Defendant
No. 89-71683
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN
DIVISION
721 F. Supp. 852;
1989 U.S. Dist.
September 22, 1989, Decided
SUBSEQUENT HISTORY:
[**1]
As Amended October 3, 1989. Second Amendment October 10, 1989.
COUNSEL: American Civil Liberties Union Fund of Michigan, Robert Sedler, cooperating
Attorney, c/o Wayne State University Law School, Paul J. Denenfeld, Legal
Director, Detroit, Michigan, for Plaintiff.
Henry W. Saad, Dickinson, Wright, Moon, Van Dusen
& Freeman, Detroit, Michigan, for Defendant.
JUDGES: Avern Cohn, United States District Judge.
OPINIONBY: COHN
OPINION:
[*853] AVERN COHN, UNITED STATES DISTRICT JUDGE.
Taking stock of the legal system's own limitations, we must realize that
judges, being human, will not only make mistakes but will sometimes succumb to
the pressures exerted by the government to allow restraints [on speech] that
ought not to be allowed. To guard against these possibilities we must give
judges as little room to maneuver as possible and, again, extend the boundary
of the realm of
protected speech into the hinterlands of speech in order to minimize the potential harm from
judicial miscalculation and misdeeds.
L. Bollinger,
The
Tolerant Society 78
(1986).
I. INTRODUCTION.
It is an unfortunate fact of our constitutional system that the ideals of
freedom and equality
[**2] are often in conflict. The difficult and sometimes painful task of our
political and legal institutions is to mediate the appropriate balance between
these two competing values. Recently, the University of Michigan at Ann Arbor
(the University), a state-chartered university,
see Mich. Const. art. VIII, adopted a Policy on Discrimination and
Discriminatory
Harassment of Students in the University Environment (the Policy) in an attempt to curb
what the University's governing Board of Regents (Regents) viewed as a rising
tide of racial intolerance and
harassment on
campus. The Policy prohibited individuals, under the penalty of sanctions, from
"stigmatizing or
victimizing" individuals or groups on the basis of race, ethnicity,
religion,
sex,
sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era
veteran status. However laudable or appropriate an effort this may have been,
the Court found that the Policy swept within its scope a significant amount of
"verbal conduct" or
"verbal behavior" which is unquestionably
protected speech under the
First Amendment. Accordingly, the Court granted plaintiff
[*854] John Doe's (Doe) n1 prayer for
[**3] a permanent injunction as to those parts of the Policy restricting speech
activity, but denied the injunction as to the Policy's
regulation of physical conduct. The reasons follow. n2
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n1 Plaintiff proceeded under the pseudonym
"John Doe" to preserve his privacy and protect himself from any adverse publicity arising
from this case. The University did not contest plaintiff's right to proceed
anonymously.
Doe was represented by counsel provided by the American Civil Liberties Union.
His attorneys are to be commended for the consistently high quality of the
representation they provided Doe in this case.
n2 The reasons for the Court's decision were stated on the record at a hearing
held on August 25, 1989. At that time, the Court stated that it would issue a
more detailed written opinion at a later date. To the extent that this opinion
is at variance with the Court's August 25, 1989 bench opinion, it is the
written opinion which controls.
See
Schmidt v. Plains Electric Inc., 281 N.W.2d 794 (N.D. 1979).
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[**4]
II. FACTS GENERALLY
According to the University, in the last three years incidents of racism and
racial
harassment appeared to become increasingly frequent at the University. For example, on
January 27, 1987, unknown persons distributed a flier declaring
"open season" on blacks, which it referred to as
"saucer lips, porch monkeys, and jigaboos." On February 4, 1987, a student disc jockey at an on-campus radio station
allowed
racist jokes to be broadcast. At a demonstration protesting these incidents, a Ku
Klux Klan uniform was displayed from a dormitory window. These events and
others prompted the University's President on February 19, 1987 to issue a
statement expressing outrage and reaffirming the University's commitment to
maintaining a racially, ethnically, and culturally diverse
campus. The University was unable to identify any of the
perpetrators. It is unknown whether the culprits were students. Likewise, there was no
evidence to suggest that these were anything other than isolated and
purposeless acts.
On March 5, 1987, the Chairperson of the State House of Representatives
Appropriations Subcommittee on Higher Education held a public hearing on the
problem of racism at
[**5] the University in Ann Arbor. Forty-eight
speakers addressed the subcommittee and an audience of about 600. The
speakers were uniformly critical of the University's response to racial incidents and
accused it of generally ignoring the problems of minority students. At the
close of the hearing, the Chairperson was quoted as stating
Michigan legislators will not tolerate racism on the
campus of a state institution . . . . Racism has no place in this day and age. . . .
[The subcommittee] will make our decision [on appropriations for the
University] during their budget discussions of the next few weeks. . . . Some
things have to change. The committee members want to meet with [the
University's President]. Holding up funds as a club may be part of our
response, but that will predicate on how the university responds.
Following the hearing, the United Coalition Against Racism (UCAR), a
campus anti-discrimination group, announced that it intended to file a class action
civil rights suit against the University
"for not maintaining or creating a non-racist, non-violent atmosphere" on
campus. Following discussions with a national civil rights leader in March of 1987,
the University
[**6] adopted a six-point action plan to remedy the racial problems on
campus. This included the adoption of
"an anti-racial
harassment policy . . . as a component of the University's rules and
regulations with appropriate sanctions specified."
On September 22, 1987, the University's President issued a
memorandum to the various schools of the University directing them to refer complaints of
discriminatory
harassment to the Affirmative Action Office in the Office of the President for monitoring
and evaluation. An analysis of the complaints which were filed reflects that
the University had neither independently verified the accuracy of the
complaints nor identified a specific
perpetrator for most of the incidents described. Likewise, there is no way by which it can
be determined whether such incidents occur more frequently
[*855] at the University than other comparable institutions.
In December 1987, the University President resigned and a former University
president was temporarily appointed to the post until a permanent successor was
chosen. On December 14, 1987, the Acting President circulated a confidential
memorandum to the University's executive officers detailing a proposal
[**7] for an anti-discrimination disciplinary policy. The proposed policy prohibited
"harassment of anyone through word or deed or any other behavior which discriminates on
the basis of inappropriate criteria." The Acting President recognized at the time that the proposed policy would
engender serious
First Amendment problems, but reasoned that
just as an individual cannot shout
"Fire!" in a crowded theater and then claim immunity from prosecution for causing a
riot on the basis of exercising his rights of
free speech, so a great many American universities have taken the position that students at
a university cannot by speaking or writing
discriminatory remarks which seriously offend many individuals beyond the immediate victim,
and which, therefore detract from the necessary
educational climate of a
campus, claim immunity from a
campus disciplinary proceeding. I believe that position to be valid.
The other
"American universities" to which the President referred to were not identified at any time. Nor was
any document presented to the Court in any form which
"valid[ates]" this
"position."
At the January 15, 1988 meeting of the Regents, the Acting President informed
the
[**8] Board that he been working on a proposed policy on student
discipline dealing with racial
harassment pursuant to his general authority under Regents' Bylaw 2.01. n3 He stated that
he was taking this action in response to widespread complaints that the
University could not or would not enforce its existing
regulations concerning racial
harassment. Adoption of a policy, he noted,
"would enable the University to take the position that it was willing to do
something about this issue." n4 The Acting President conceded that any proposed policy would implicate
serious civil liberties questions, but he expressed a commitment to pursue the
problem nevertheless.
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n3 Regents' By-law 2.01 provides that in addition to other duties and
functions, the President of the University shall exercise such general powers
as to
general oversight of teaching and research programs; the libraries, museums,
and other supporting services; the general welfare of the faculty and
supporting staffs; the business and financial welfare of the University; and
the maintenance of health, diligence, and order among the students.
[**9]
n4 Regents By-law 7.02, adopted in 1985, established the University Council, a
formal body composed of faculty, students, and
administrators, charged with the responsibility for drafting uniform
regulations governing the conduct of members of the community. As of January, 1988, the
University Council had failed to act. This was apparently the reason why the
Regents bypassed the University Council in formulating the Policy.
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Following the January meeting, the Acting President appointed the Director of
the University Office of Affirmative Action (Director) to draft a policy. The
proposed policy went through twelve drafts. Throughout this process, the
Director consulted with a lawyer in the Office of University Counsel and
perhaps several University of Michigan Law School professors. n5 On February
29, 1988, a proposed policy was published in the
University Record and faculty, students, and staff were invited to comment. A public hearing on
the proposed policy was held on March 16, 1988 at which numerous
speakers commented and suggested various changes and refinements. The next day, the
Acting
[**10] President introduced the draft policy for consideration at the monthly Regents
meeting. In the ensuing discussion, one Regent expressed concern that the
policy would unduly restrict students'
free speech rights. A second Regent criticized the policy on the grounds that it failed to
address the problem of students heckling outside
speakers
[*856] who came to the
campus. The Regents agreed that the final draft incorporating the suggested changes
would be presented at the next meeting. University officers also promised that
an interpretive guide with examples of
sanctionable conduct would be issued as an authoritative guide for the benefit of the
University community. At the April 14, 1988 Regents meeting, the Policy was
unanimously adopted. It became effective on May 31, 1988 and was set to expire
on December 31, 1989 unless reenacted.
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n5 This equivocation is attributable to the fact that consultations with law
professors were unaccompanied by the exchange of any formal correspondence or
memoranda.
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III.
[**11] THE UNIVERSITY OF MICHIGAN POLICY ON DISCRIMINATION AND
DISCRIMINATORY
HARASSMENT
A.
The Terms of the Policy
The Policy established a three-tiered system whereby the degree of
regulation was dependent on the location of the conduct at issue. The broadest range of
speech and dialogue was
"tolerated" in variously described public parts of the
campus. Only an act of physical violence or destruction of property was considered
sanctionable in these settings. Publications
sponsored by the University such as the
Michigan Daily and the
Michigan Review were not subject to
regulation. The conduct of students living in University housing is primarily governed by
the standard provisions of individual leases, however the Policy appeared to
apply in this setting as well. n6 The Policy by its terms applied specifically
to
"educational and academic centers, such as
classroom buildings, libraries, research laboratories, recreation and study centers[.]" In these areas, persons were subject to
discipline for:
1. Any behavior,
verbal or physical, that
stigmatizes or
victimizes an individual on the basis of race, ethnicity,
religion,
sex,
sexual orientation, creed, national origin,
[**12] ancestry, age, marital status, handicap or Vietnam-era veteran status, and
that
a. Involves an express or implied threat to an individual's academic efforts,
employment, participation in University
sponsored
extra-curricular activities or personal safety; or
b. Has the purpose or reasonably foreseeable effect of interfering with an
individual's academic efforts, employment, participation in University
sponsored
extra-curricular activities or personal safety; or
c. Creates an intimidating,
hostile, or demeaning environment for
educational pursuits, employment or participation in University
sponsored
extra-curricular activities.
2. Sexual advances, requests for sexual favors, and
verbal or physical conduct that
stigmatizes or
victimizes an individual on the basis of
sex or
sexual orientation where such behavior:
a. Involves an express or implied threat to an individual's academic efforts,
employment, participation in University
sponsored
extra-curricular activities or personal safety; or
b. Has the purpose or reasonably foreseeable effect of interfering with an
individual's academic efforts, employment, participation in University
sponsored
extra-curricular
[**13] activities or personal safety; or
c. Creates an intimidating,
hostile, or demeaning environment for
educational pursuits, employment or participation in University
sponsored
extra-curricular activities.
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n6 The constitutionality of the Policy as it relates to
verbal conduct and
verbal behavior in University housing is not raised in the complaint. The standard
provisions of the University housing lease are not part of the record.
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On August 22, 1989, the University publicly announced, without prior notice to
the Court or Doe, that it was withdrawing section 1(c) on the grounds that
"a need exists for further explanation and clarification of [that section] of
the policy." No reason was given why the analogous provision in paragraph 2(c) was allowed
to stand.
The Policy by its terms recognizes that certain speech which might be
considered in violation may not be
sanctionable by stating:
"The Office of the General Counsel
[*857] will rule on any claim that conduct which is the subject of
[**14] a
formal hearing is constitutionally protected by the
first amendment."
B.
Hearing Procedures
Any member of the University community could initiate the process leading to
sanctions by either filing a formal complaint with an appropriate University
office or by seeking informal counseling with described University officials
and support centers. The Policy states that it is the preference of the
University to employ informal mechanisms for mediation and resolution of
complaints whenever possible and in fact most complainants have chosen to
proceed informally. University officers are authorized to act as mediators and
employ
educational sanctions, community service, disciplinary warnings, and restitution in
attempting to reach a settlement acceptable to both the victim and the
perpetrator. None of the records relating to enforcement of the Policy are to be included
in a student's academic files, and the records so generated are to be
maintained in accordance with applicable privacy laws.
Where a negotiated settlement proves impossible, a formal complaint would be
filed with the
Administrator of Complaints of
Discriminatory Behavior in the Office of Vice-President of Student Services
[**15] (Policy
Administrator). The Policy
Administrator would then undertake an independent investigation of the alleged incident to
determine whether there is sufficient evidence of a violation to warrant the
initiation of a
formal hearing. If a hearing were necessary, a panel consisting of four students and one
tenured faculty member would be convened to pass on the merits. The accused
student would then be notified that a complaint had been filed against him or
her, the specific charges, the identity of the complaining witness, and the
facts of the complaint and investigation. At the hearing, the Policy
Administrator would be responsible for presenting the charges against the accused student.
Both the accused student and the complainant had the right to call and
cross-examine witnesses and give testimony. The accused student had the right
to have an attorney present at the hearing, but the attorney could not
participate fully in the hearing unless suspension or expulsion were likely
sanctions. If a majority of the hearing panel found by clear and convincing
evidence that the Policy had been violated, they were to recommend an
appropriate sanction. If the accused student was dissatisfied
[**16] with the panel's decision, he or she had the right to have an appellate
tribunal consisting of two students and the Vice-President for Student Services
independently review the conviction and sanction.
C.
Sanctions
The Policy provided for progressive
discipline based on the severity of the violation. It stated that the University
encouraged hearing panels to impose sanctions that include an
educational element in order to sensitize the
perpetrator to the harmfulness of his or her conduct. The Policy provided, however, that
compulsory class attendance should not be imposed
"in an attempt to change deeply held religious or moral convictions." Depending on the intent of the accused student, the effect of the conduct, and
whether the accused student is a repeat offender, one or more of the following
sanctions may be imposed: (1) formal reprimand; (2) community service; (3)
class attendance; (4) restitution; (5) removal from University housing; (6)
suspension from specific courses and activities; (7) suspension; (8) expulsion.
The sanctions of suspension and expulsion could only be imposed for violent or
dangerous acts, repeated offenses, or a willful failure to comply with a lesser
[**17] sanction. The University President could set aside or lessen any sanction.
D.
Interpretive Guide
Shortly after the promulgation of the policy in the fall of 1988, the
University Office of Affirmative Action issued an interpretive guide (Guide)
entitled
What Students Should Know about Discrimination and
Discriminatory
Harassment by Students in the University Environment. The Guide purported to be an authoritative
[*858] interpretation of the Policy and provided examples of
sanctionable conduct. These included:
A flyer containing
racist threats distributed in a residence hall.
Racist graffiti written on the door of an Asian student's study carrel.
A male student makes remarks in class like
"Women just aren't as good in this field as men," thus creating a
hostile learning atmosphere for female classmates.
Students in a residence hall have a floor party and invite everyone on their
floor except one person because they think she might be a lesbian.
A black student is confronted and racially insulted by two white students in a
cafeteria.
Male students leave pornographic pictures and jokes on the desk of a female
graduate student.
Two
[**18] men demand that their roommate in the residence hall move out and be tested
for AIDS.
In addition, the Guide contained a separate section entitled
" YOU are a harasser when . . ." which contains the following examples of
discriminatory conduct:
You exclude someone from a study group because that person is of a different
race,
sex, or ethnic origin than you are.
You tell jokes about gay men and lesbians.
Your student organization sponsors entertainment that includes a comedian who
slurs Hispanics.
You display a confederate flag on the door of your room in the residence hall.
You laugh at a joke about someone in your class who stutters.
You make obscene telephone calls or send
racist notes or computer messages.
You comment in a derogatory way about a particular person or group's physical
appearance or
sexual orientation, or their cultural origins, or religious beliefs.
It was not clear whether each of these actions would subject a student to
sanctions, although the title of the section suggests that they would. It was
also unclear why these additional examples were listed separately from those in
the section entitled
"What is
Discriminatory
[**19]
Harassment."
According to the University, the Guide was withdrawn at an unknown date in the
winter of 1989, because
"the information in it was not accurate." The withdrawal had not been announced publicly as of the date this case was
filed. n7
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n7 The Policy was published in pamphlet form with a blue cover and a yellow
slash down the center. The Guide was published in pamphlet form with the
opposite color scheme. The University's colors are maize and blue. The graphic
layout of the Policy and Guide pamphlets served to reinforce the Court's view
that the two statements were integrally related. Indeed, at the hearing on
August 25, 1989, the Court observed that the withdrawal of the Guide while
retaining the Policy was like taking the maize out of the
"maize and blue."
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IV. STANDING.
Doe is a psychology graduate student. His specialty is the field of
biopsychology, which he describes as the interdisciplinary study of the
biological bases of individual differences in personality traits and mental
abilities. Doe
[**20] said that certain controversial theories positing biologically-based
differences between
sexes and races might be perceived as
"sexist" and
"racist" by some students, and he feared that discussion of such theories might be
sanctionable under the Policy. He asserted that his right to freely and openly discuss
these theories was impermissibly chilled, and he requested that the Policy be
declared unconstitutional and enjoined on the grounds of vagueness and
overbreadth.
The University in response questioned Doe's standing to challenge the Policy,
saying that it has never been applied to sanction
classroom discussion of legitimate ideas and that Doe did not demonstrate a credible
threat of enforcement as to himself. The University also asserts that Doe could
not base his claim on the
free speech interests of unspecified third parties. These arguments served only to
diminish the credibility of the University's argument on the merits because it
appeared that it
[*859] sought to avoid coming to grips with the constitutionality of the Policy.
Article III of the Constitution limits the judicial
[**21] power of federal courts to live cases and controversies. Traditionally,
federal courts have interpreted this limitation to bar a party from maintaining
a lawsuit unless the party had a sufficient stake in the outcome
"as to assure that concrete adverseness which sharpens the presentation of
issues upon which the Court so largely depends for illumination of difficult
constitutional questions."
Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962). To establish such an interest, a litigant must show that he or she has
personally suffered some actual or threatened injury from the putatively
illegal conduct of the defendant, that the injury could fairly be traced to the
illegal conduct, and that it would be redressed by a favorable decision.
Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982). The challenged conduct must cause or threaten to cause a direct injury,
Laird v. Tatum, 408 U.S. 1, 14, 33 L. Ed. 2d 154, 92 S. Ct. 2318 (1972), which is distinct and palpable,
Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984).
[**22] Doe clearly met this standard.
It is well settled that an individual has standing to challenge the
constitutionality of a penal statute if he or she can demonstrate a realistic
and credible threat of enforcement.
Steffel v. Thompson, 415 U.S. 452, 39 L. Ed. 2d 505, 94 S. Ct. 1209 (1974). The mere possibility that a person might be subject to the sanctions of a
statute is insufficient.
United Presbyterian Church in the
U.S.A. v. Reagan, 238 U.S. App. D.C. 229, 738 F.2d 1375 (D.C. Cir. 1984). Rather, the threat of enforcement must be specific and direct and against a
particular party.
Houston v. Hill, 482 U.S. 451, 459 n.7, 96 L. Ed. 2d 398, 107 S. Ct. 2502 (1987). It is not necessary, however, that an individual first be exposed to
prosecution in order to have standing to challenge a statute which is claimed
to deter the exercise of constitutional rights.
Doe v. Bolton, 410 U.S. 179, 188, 35 L. Ed. 2d 201, 93 S. Ct. 739 (1973).
Were the Court to look only at the plain language of the Policy, it might have
to agree
[**23] with the University that Doe could not have realistically alleged a genuine
and credible threat of enforcement. The Policy prohibited conduct which
"stigmatizes or
victimizes" students on the basis of
"race, ethnicity,
religion,
sex,
sexual orientation" and other invidious factors. However, the terms
"stigmatize" and
"victimize" are not self defining. n8 These words can only be understood with reference to
some exogenous value system. What one individual might find
victimizing or
stigmatizing, another individual might not. Accordingly, the likelihood of a complaint being
filed in response to Doe's anticipated
classroom comments would be speculative at best. In addition, even if a complaint was
filed, the Policy requires that considerations of freedom of speech and
academic freedom be given due consideration by the Policy
Administrator in determining whether a
formal hearing is warranted. Even if a student were to find Doe's views
victimizing or
stigmatizing, the Policy
Administrator might well conclude that his speech is protected by the
First Amendment and refuse to take any action. Thus, if the plain language of the policy were
all the Court had before it, it would probably conclude
[**24] that Doe had failed to demonstrate a reasonable probability that the Policy
would be construed to cover his anticipated speech.
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n8
"Stigmatize" is defined in
The American Heritage Dictionary 1266 (1978) as
"1. To characterize or brand as disgraceful or ignominious mark with stigma or
brand. 2. To brand or mark with a stigma or stigmata. 3. To cause stigmata to
appear on."
"Victimize" is defined as
"1. To subject to swindle or fraud; to cause discomfort or suffering to. 2. To
make a victim of as if by slaying."
Id. at 1428.
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The slate was not so clean, however. The Court had before it not only the terms
of the Policy, but also its legislative history, the Guide, and experiences
gleaned from a year of enforcement. The record clearly shows that there existed
a realistic
[*860] and credible threat that Doe could be sanctioned were he to discuss certain
biopsychological theories.
The legislative history demonstrated that the Policy was originally conceived
as a remedy for racially insensitive and derogatory
[**25] remarks which students found
offensive. The Acting President's December 14, 1987
memorandum to the University's Executive Officers stated that the proposed
anti-harassment policy would sanction any
"remarks which seriously offend many individuals beyond the immediate victim,
and which, therefore detract from the necessary
educational climate of a
campus." The University pointed out that the December 14
Memorandum was simply a tentative starting point for discussion and the Policy went
though numerous drafts before it reached its final form. This may have well
been so. However, the
Memorandum nevertheless illustrated the
intent, never subsequently contradicted, underlying the Policy and the University's
general approach to the problems it perceived. Nothing in the legislative
materials filed with the Court suggested that the Acting President's
theoretical approach was substantially altered as the Policy developed. On the
contrary, as late as February 2, 1988, the University attorney who researched
the law and assisted in the drafting of the Policy, wrote a
memorandum in which he conceded that merely
offensive speech was constitutionally protected, but declared that
we
[**26] cannot be frustrated by the reluctance of the courts and the common law to
recognize the personal damage that is caused by
discriminatory speech, nor should our policy attempt to conform to traditional methods of
identifying harmful speech. Rather the University should identify and prohibit
that speech that causes damage to individuals within the community.
The record before the Court thus indicated that the drafters of the policy
intended that speech need only be
offensive to be
sanctionable.
The Guide also suggested that the kinds of ideas Doe wished to discuss would be
sanctionable. The Guide was the University's authoritative interpretation of the Policy. It
explicitly stated that an example of
sanctionable conduct would include:
A male student makes remarks in class like
"Women just aren't as good in this field as men," thus creating a
hostile learning atmosphere for female classmates.
Doe said in an affidavit that he would like to discuss questions relating to
sex and race differences in his capacity as a teaching assistant in Psychology
430, Comparative Animal Behavior. He went on to say:
An appropriate topic for discussion in the discussion
[**27] groups is sexual differences between male and female mammals, including
humans. [One] . . . hypothesis regarding
sex differences in mental abilities is that men as a group do better than women in
some spatially related mental tasks partly because of a biological difference.
This may partly explain, for example, why many more men than women chose to
enter the engineering profession.
Doe also said that some students and teachers regarded such theories as
"sexist" and he feared that he might be charged with a violation of the Policy if he
were to discuss them. In light of the statements in the Guide, such fears could
not be dismissed as speculative and conjectural. The ideas discussed in Doe's
field of study bear sufficient similarity to ideas denounced as
"harassing" in the Guide to constitute a realistic and specific threat of prosecution.
The University argued that it had withdrawn the Guide on the grounds that it
contained some
"inaccuracies." However, at best, this decision was conveyed only to department heads and
other responsible officials and, as noted, had not been announced to the
general University community at the time this lawsuit was filed. For the
purposes
[**28] of determining Doe's standing, the University's action came too late to render
Doe's fear of enforcement illusory.
See
United States v. W.T. Grant & Co., 345 U.S. 629, 97 L. Ed. 1303, 73 S. Ct. 894 (1953).
[*861] Finally, the record of the University's enforcement of the Policy over the
past year suggested that students in the
classroom and research setting who offended others by discussing ideas deemed
controversial could be and were subject to
discipline. A review of the University's
discriminatory
harassment complaint files suggested that on at least three separate occasions, students
were disciplined or threatened with
discipline for comments made in a
classroom setting. These are
discipline files 88-12-21, 88-9-05, and 88-9-07, discussed
infra. At least one student was subject to a
formal hearing because he stated in the context of a social work research class that he
believed that homosexuality was a disease that could be psychologically
treated. As will be discussed below, the Policy was enforced so broadly and
indiscriminately, that plaintiff's fears of prosecution were entirely
reasonable. Accordingly, the Court found that Doe had standing to challenge
[**29] the policy. n9
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n9 In view of the fact that there was a substantial probability that the Policy
might be enforced against Doe, there was no need to consider whether he has
standing to assert the rights of third parties,
see, e.g.,
Barrows v. Jackson, 346 U.S. 249 97 L. Ed. 1586, 73 S. Ct. 1031 (1953), or whether the mere existence of the Policy has sufficiently
"chilled" the intellectual atmosphere of the University as to make out a concrete
injury-in-fact,
see, e.g.,
Sierra Club v. Morton, 405 U.S. 727, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
V. VAGUENESS AND OVERBREADTH.
Doe initially moved for a preliminary injunction against the Policy on the
grounds that it was unconstitutionally vague and
overbroad and that it chilled speech and conduct protected by the
First Amendment. The University in response said that the Policy has never been applied to
reach
protected speech and a preliminary injunction should therefore be denied. At the August 25,
1989 hearing on Doe's motion,
[**30] the Court, without objection, consolidated the hearing on the motion with the
trial on the merits pursuant to Fed. R. Civ. P. 65(a) (2). n10 This obviated
the need to consider whether Doe had made the requisite showing to warrant the
issuance of a preliminary injunction.
See
Mason County Medical Association v. Knebel, 563 F.2d 256 (6th Cir. 1977).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n10 The University reserved the right to supplement the record to clarify any
disputed factual issues, which it subsequently did. Doe chose not to respond.
Nothing in the University's clarification papers materially changed any of the
facts the Court relied upon in reaching its decision.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
A.
Scope of Permissible
Regulation
Before inquiring whether the policy is impermissibly vague and
overbroad, it would be helpful to first distinguish between
verbal conduct and
verbal acts that are generally protected by the
First Amendment and those that are not. It is the latter class of behavior that the University
may legitimately regulate.
[**31] Although the line is sometimes difficult to draw with precision, the Court
must distinguish at the outset between the
First Amendment protection of so-called
"pure speech" and mere conduct.
See L. Tribe,
Constitutional Law sec. 12-7 (2d Ed. 1988). As to the latter, it can be safely said that most
extreme and blatant forms of
discriminatory conduct are not protected by the
First Amendment, and indeed are punishable by a variety of state and federal criminal laws and
subject to civil actions. Discrimination in employment, education, and
government benefits on the basis of race,
sex, ethnicity, and
religion are prohibited by the constitution and both state and federal statutes. n11
See, e.g., U.S. Const. amends. V, XIV; Mich Const. art. I, sec. 2;
42 U.S.C. sec. 2000e-16 (employment); Mich. Stat. Ann. sec. 3.548(202) (employment);
42 U.S.C. sec. 2000c (education); Mich. Const. art. VIII, sec. 2 (education);
42 U.S.C. sec. 2000d
[*862] (government benefits). In addition, the state provides criminal penalties and
civil remedies for assault and
[**32] battery, Mich. Stat. Ann. secs. 28.276-28.278; Mich. Stat. Ann. sec. 28.344(2)
(physical assault for purposes of ethnic intimidation). n12
Tinkler v. Richter, 295 Mich. 396, 295 N.W. 201 (1940) (civil action for assault and battery), and vandalism and property damage,
Mich. Stat. Ann. 28-609(1); Mich. Stat. Ann. sec. 28.344(2) (property damage
and destruction for purposes of ethnic intimidation);
Thoma v. Tracy Motor Sales, 360 Mich. 434, 104 N.W.2d 360 (1960) (civil action for property destruction). Federal law imposes civil and
criminal sanctions against persons depriving or conspiring to deprive others of
rights guaranteed by the United States constitution.
42 U.S.C. secs. 1983, 1985 (civil);
18 U.S.C. secs. 241-242 (criminal).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n11 There are no federal statutory or constitutional provisions against
discrimination on the basis of
sexual orientation or Vietnam Veteran status.
See
Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841 (1986). This hiatus does not mean that the University may not adopt
regulations more protective than existing law, provided, of course, such
regulation does not otherwise offend the state or federal constitutions.
[**33]
n12 Recently, the Michigan legislature enacted a law making it a criminal
offense to commit an act of
"ethnic intimidation," which is defined as the causing of physical contact with another, the damaging
of real or personal property, or making a credible threat to do so with the
specific intent to
"intimidate or harass another person because of that person's race, color,
religion, gender, or national origin[.]" Mich. Stat. Ann. sec. 28.344(2). The statute prescribes a maximum penalty of
not more than two years imprisonment or $ 5,000 fine or both. It also
establishes a civil remedy for such conduct entitling a successful plaintiff to
treble damages or $ 2,000, whichever is greater, and attorney's fees.
For a survey of similar anti-hate crime legislation in other states,
see Anti-Defamation League,
Hate Crimes Statutes: A Response to Anti-Semitism, Vandalism, and Violent
Bigotry (1988).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Many forms of sexually abusive and harassing conduct are also
sanctionable. These would include abduction,
[**34] Mich. Stat. Ann. secs. 28.201-202, rape, and other forms of criminal sexual
conduct, Mich. Stat. Ann. sec. 28.788;
Totten v. Totten, 172 Mich. 565, 138 N.W. 257 (1912) (civil action for rape). The dissemination of legally obscene materials is
also a crime under state law. Mich. Stat. Ann. sec. 28.579. In addition, a
civil remedy exists for women who are subjected to demands for sexual favors by
employers as an express or implied
quid pro quo for employment benefits.
Meritor Savings Bank v. Vinson, 477 U.S. 57, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). Minorities or women who are exposed to such extreme and pervasive workplace
harassment as to create a
hostile or
offensive working environment are also entitled to civil damages.
Id. (and cases cited therein). The
First Amendment presents no obstacle to the establishment of internal University sanctions as
to any of these categories of conduct, over and above any remedies already
supplied by state or federal law.
While the University's power to regulate so-called pure speech is far more
limited,
[**35]
see
United States v. O'Brien, 391 U.S. 367, 376-77, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968), certain categories can be generally described as unprotected by the
First Amendment. It is clear that so-called
"fighting words" are not entitled to
First Amendment protection.
Chaplinsky v. New Hampshire, 315 U.S. 568, 86 L. Ed. 1031, 62 S. Ct. 766 (1942). These would include
"the lewd and obscene, the profane, the libelous, and the insulting or 'fighting
words' those which by their very utterance inflict injury or tend to incite an
immediate breach of the peace."
Id. at 572. Under certain circumstances racial and ethnic epithets, slurs, and insults
might fall within this description and could constitutionally be prohibited by
the University. In addition, such speech may also be sufficient to state a
claim for common law intentional infliction of emotional distress.
Ledsinger v. Burmeister, 114 Mich. App. 12, 18-19, 318 N.W.2d 558 (1982). Credible threats of violence or property damage made with the specific intent
to harass
[**36] or intimidate the victim because of his race,
sex,
religion, or national origin is punishable both criminally and civilly under state law.
Mich. Stat. Ann. sec. 28.344(2). Similarly, speech which has the effect of
inciting imminent lawless action and which is likely to incite such action may
also be lawfully punished.
[*863]
Brandenburg v. Ohio, 395 U.S. 444, 23 L. Ed. 2d 430, 89 S. Ct. 1827 (1969). Civil damages are available for speech which creates a
hostile or abusive working environment on the basis of race or
sex.
Meritor, supra. Legally obscene speech is unprotected by the
First Amendment,
Miller v. California, 413 U.S. 15, 22, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973), as are materials involving the sexual exploitation of children.
New York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982). Similarly, speech which is 'vulgar, ' 'offensive, ' and 'shocking ' is not entitled to absolute constitutional protection in all
circumstances.
Bethel School District No. 403 v. Fraser, 478 U.S. 675, 92 L. Ed. 2d 549, 106 S. Ct. 3159 (1986);
FCC v. Pacifica Foundation, supra
[**37] . Certain kinds of libel and slander are also not protected.
Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 86 L. Ed. 2d 593, 105 S. Ct. 2939 (1985), including possibly group libel,
Beauharnais v. Illinois, 343 U.S. 250, 96 L. Ed. 919, 72 S. Ct. 725 (1952). Finally, the University may subject all speech and conduct to reasonable and
non-discriminatory time, place, and manner restrictions which are narrowly
tailored and which leave open ample alternative means of communication.
Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 69 L. Ed. 2d 298, 101 S. Ct. 2559 (1981). If the Policy had the effect of only regulating in these areas, it is unlikely
that any constitutional problem would have arisen.
What the University could not do, however, was establish an anti-discrimination
policy which had the effect of prohibiting certain speech because it disagreed
with ideas or messages sought to be conveyed.
Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 360, 109 S. Ct. 2533 (1989);
Chicago Police Department v. Mosley, 408 U.S. 92, 95, 33 L. Ed. 2d 212, 92 S. Ct. 2286 (1972);
[**38]
Cohen v. California, 403 U.S. 15, 24, 29 L. Ed. 2d 284, 91 S. Ct. 1780 (1971);
NAACP v. Button, 371 U.S. 415, 445, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963);
Terminiello v. Chicago, 337 U.S. 1, 4, 93 L. Ed. 1131, 69 S. Ct. 894 (1949). As the Supreme Court stated in
West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 87 L. Ed. 1628, 63 S. Ct. 1178 (1943):
If there is any star fixed in our constitutional constellation, it is that no
official, high or petty, can prescribe what shall be orthodox in politics,
nationalism,
religion, or other matters of opinion or force citizens to confess by word or act their
faith therein.
Nor could the University proscribe speech simply because it was found to be
offensive, even gravely so, by large numbers of people.
Texas v. Johnson, supra 105 L. Ed. 2d at 360;
Hustler Magazine v. Falwell, 485 U.S. 46, 55-56, 99 L. Ed. 2d 41, 108 S. Ct. 876 (1988);
City Counsel of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804, 80 L. Ed. 2d 772, 104 S. Ct. 2118 (1984);
[**39]
Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726, 745-46, 57 L. Ed. 2d 1073, 98 S. Ct. 3026 (1978);
Collin v. Smith, 578 F.2d 1197, 1205-07 (7th Cir.),
cert. denied
439 U.S. 916, 58 L. Ed. 2d 264, 99 S. Ct. 291 (1978). As the Supreme Court noted in
Street v. New York, 394 U.S. 576, 592, 22 L. Ed. 2d 572, 89 S. Ct. 1354 (1969):
It is firmly settled that under our Constitution the public expression of ideas
may not be prohibited merely because the ideas are themselves
offensive to some of their hearers.
See e.g.
Cox v. Louisiana (I), [379 U.S. 536, 13 L. Ed. 2d 471, 85 S. Ct. 453 (1965)];
Edwards v. South Carolina, [372 U.S. 229, 9 L. Ed. 2d 697, 83 S. Ct. 680 (1963)];
Terminiello v. Chicago, [337 U.S. 1, 93 L. Ed. 1131, 69 S. Ct. 894 (1949)];
cf.
Cantwell v. Connecticut, 310 U.S. 296, 84 L. Ed. 1213, 60 S. Ct. 900 (1940).
These principles acquire a special significance in the University setting,
where the free and unfettered interplay of competing views is essential to the
institution's
educational
[**40] mission.
Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967);
Sweezy v. New Hampshire, 354 U.S. 234, 250, 1 L. Ed. 2d 1311, 77 S. Ct. 1203 (1957). With these general rules in mind, the Court can now consider
[*864] whether the Policy sweeps within its scope speech which is otherwise protected
by the
First Amendment.
B.
Overbreadth
1.
Doe claimed that the Policy was invalid because it was facially
overbroad. It is fundamental that statutes regulating
First Amendment activities must be narrowly drawn to address only the specific evil at hand.
Broadrick v. Oklahoma, 413 U.S. 601, 611, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973).
"Because
First Amendment freedoms need breathing space to survive, government may regulate in the area
only with narrow specificity."
NAACP v. Button, supra at 433. 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 612;
[**41]
Houston v. Hill, 482 U.S. 451, 458-60, 96 L. Ed. 2d 398, 107 S. Ct. 2502 (1985);
Kolender v. Lawson, 461 U.S. 352, 359 n.8, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983);
Gooding v. Wilson, 405 U.S. 518, 521-22, 31 L. Ed. 2d 408, 92 S. Ct. 1103 (1972).
The Supreme Court has consistently held that statutes punishing speech or
conduct solely on the grounds that they are unseemly or
offensive are unconstitutionally
overbroad. In
Houston v. Hill, supra, the Supreme Court struck down a City of Houston ordinance which provided that
"it shall be unlawful for any person to assault or strike or in any manner
oppose, molest, and abuse or interrupt any policeman in the execution of his
duty." The Supreme Court also found that the ordinance was
overbroad because it forbade citizens from criticizing and insulting police officers,
although such conduct was constitutionally protected.
Id. at 460-65. The fact that the statute also had a legitimate scope of application in
prohibiting conduct which was clearly unprotected
[**42] by the
First Amendment was not enough to save it. In
Gooding v. Wilson, supra, the Supreme Court struck down a Georgia statute which made it a misdemeanor
for
"any person [to], without provocation, use to or of another, and in his presence
. . . opprobrious words or abusive language, tending to cause a breach of the
peace." The Supreme Court found that this statute was
overbroad as well, because it punished speech which did not rise to the level of
"fighting words," as defined in
Chaplinsky v. New Hampshire, supra. The Supreme Court struck down a similar ordinance in
Lewis v. New Orleans, 415 U.S. 130, 39 L. Ed. 2d 214, 94 S. Ct. 970 (1974), on the same grounds. In
Papish v. University of Missouri, 410 U.S. 667, 35 L. Ed. 2d 618, 93 S. Ct. 1197 (1973), the Supreme Court ordered the reinstatement of a university student expelled
for distributing an underground newspaper sporting the headline
"Motherfucker acquitted" on the grounds that
"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."
Id. at 670.
[**43] Although the Supreme Court acknowledged that reasonable restrictions on the
time, place, and manner of distribution might have been permissible,
"the opinions below show clearly that [plaintiff] was dismissed because of the
disapproved
content of the newspaper."
Id. Most recently, in
Texas v. Johnson, supra, the Supreme Court invalidated a Texas statute prohibiting burning of the
American flag on the grounds that there was no showing that the prohibited
conduct was likely to incite a breach of the peace. These cases stand generally
for the proposition that the state may not prohibit broad classes of speech,
some of which may indeed be legitimately regulable, if in so doing a
substantial amount of constitutionally protected conduct is also prohibited.
This was the fundamental infirmity of the Policy.
2.
The University repeatedly argued that the Policy did not apply to speech that
is protected by the
First Amendment. It urged the Court to disregard the Guide as
"inaccurate" and look instead to
"the manner in which the Policy has been interpreted and applied by
[**44] those charged with its
[*865] enforcement." However, as applied by the University over the past year, the Policy was
consistently applied to reach
protected speech.
On December 7, 1988, a complaint was filed against a graduate student in the
School of Social Work alleging that he harassed students based on
sexual orientation and
sex. The basis for the
sexual orientation charge was apparently that in a research class, the student openly stated his
belief that homosexuality was a disease and that he intended to develop a
counseling plan for changing gay clients to straight.
See
Discipline File 88-12-21, described
supra. He also related to other students that he had been counseling several of his
gay patients accordingly. The student apparently had several heated discussions
with his classmates over the validity and morality of his theory and program.
On January 11, 1989, the Interim Policy
Administrator wrote to the student informing him that following an investigation of the
complaints, there was sufficient evidence to warrant a
formal hearing on the charges of
sex and
sexual orientation
harassment. n13 A
formal hearing on the charges was held on January 28, 1989. The
[**45] hearing panel unanimously found that the student was guilty of sexual
harassment but refused to convict him of
harassment on the basis of
sexual orientation. The panel stated:
In a divided decision the hearing panel finds that the evidence available to
the panel indicates that
did not harass students on the basis of
sexual orientation under the strict definition of
"The University of Michigan Policy on Discrimination and
Discriminatory
Harassment by Students in the University Environment." In accordance with
First Amendment rights to
free speech and the University's policy of academic freedom,
did not violate the policy by discussing either the origins or
"curability" of homosexuality in the School of Social Work.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n13 The letter stated in part:
One type of complaint alleges that you have engaged in discrimination and/or
discriminatory
harassment on the basis of
sexual orientation. Specifically the complaints allege the following:
1. You have made harassing statements in class and in
classroom buildings to other students and/or faculty that are intimidating,
hostile, and demeaning on the basis of
sexual orientation. Specifically
complains that you have stated repeatedly that homosexuality is an illness
that needs to be
"cured".
2. You have made several anti-gay comments to other students, specifically to
stating that homosexuality is abnormal and unnatural.
Although the Policy required identification of the complainants, these names
were withheld from the Court to protect their privacy.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**46]
Although the student was not sanctioned over the allegations of
sexual orientation
harassment, the fact remains that the Policy
Administrator -- the authoritative voice of the University on these matters -- saw no
First Amendment problem in forcing the student to a hearing to answer for allegedly harassing
statements made in the course of academic discussion and research. Moreover,
there is no indication that had the hearing panel convicted rather than
acquitted the student, the University would have interceded to protect the
interests of academic freedom and freedom of speech.
A second case, which was informally resolved, also demonstrated that the
University did not exempt statements made in the course of
classroom academic discussions from the sanctions of the policy. On September 28, 1988,
a complaint was filed against a student in an entrepreneurship class in the
School of Business Administration for reading an allegedly homophobic limerick
during a scheduled class public-speaking exercise which ridiculed a well known
athlete for his presumed
sexual orientation. Complaint No. 88-9-05. The Policy
Administrator was able to persuade the
perpetrator to attend an
educational
"gay
[**47] rap" session, write a letter of apology to the
Michigan Daily, and apologize to his class and the matter was dropped. No discussion of the
possibility that the limerick was
protected speech appears in the file or in the
Administrator's notes.
A third incident involved a comment made in the orientation session of a
preclinical
[*866] dentistry class. The class was widely regarded as one of the most difficult
for second year dentistry students. To allay fears and concerns at the outset,
the class was broken up into small sections to informally discuss anticipated
problems. During the ensuing discussion, a student stated that
"he had heard that minorities had a difficult time in the course and that he had
heard that they were not treated fairly." Complaint No. 88-9-07. A minority professor teaching the class filed a
complaint on the grounds that the comment was unfair and hurt her chances for
tenure. Following the filing of the complaint, the student was
"counseled" about the existence of the policy and agreed to write a letter apologizing for
making the comment without adequately verifying the allegation, which he said
he had heard from his roommate, a black former dentistry
[**48] student. n14
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n14 Only a single complaint involving allegedly harassing remarks made in the
context of a
classroom discussion was dismissed because of
First Amendment concerns. A complaint of anti-semitic
harassment was filed on March 27, 1989, by a Jewish student in a class on the Holocaust
who was offended by another student's suggestion that Jews cynically used the
Holocaust to justify Israel's policies toward the Palestinians. Complaint No.
89-3-2. Accordingly to the
Administrator's notes, the
perpetrator refused to apologize for the comment. The
Administrator phoned the complainant and informed her that the comment was
protected speech, not covered by the policy.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The manner in which these three complaints were handled demonstrated that the
University considered serious comments made in the context of
classroom discussion to be
sanctionable under the Policy. The innocent intent of the
speaker was apparently immaterial to whether a complaint would be pursued. Moreover,
the
Administrator generally failed to
[**49] consider whether a comment was protected by the
First Amendment before informing the accused student that a complaint had been filed. The
Administrator instead attempted to persuade the accused student to accept
"voluntary" sanctions. Behind this persuasion was, of course, the subtle threat that
failure to accept such sanctions might result in a
formal hearing. There is no evidence in the record that the
Administrator ever declined to pursue a complaint through attempted mediation because the
alleged harassing conduct was protected by the
First Amendment. Nor is there evidence that the
Administrator ever informed an accused harasser during mediation negotiations that the
complained of conduct might be protected. The
Administrator's manner of enforcing the Policy was constitutionally indistinguishable from a
full blown prosecution. The University could not seriously argue that the
policy was never interpreted to reach protected conduct. It is clear that the
policy was
overbroad both on its face and as applied. n15
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n15 The Court's finding that the University interpreted the Policy to reach
constitutionally
protected speech makes it unnecessary to consider whether the Policy was susceptible to a
saving construction.
See
Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 493-503, 86 L. Ed. 2d 394, 105 S. Ct. 2794 (1985).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**50]
C.
Vagueness
Doe also urges that the policy be struck down on the grounds that it is
impermissibly vague. A statute is unconstitutionally vague when
"men of common intelligence must necessarily guess at its meaning."
Broadrick, supra at 607. A statute must give adequate warning of the conduct which is to be prohibited
and must set out explicit standards for those who apply it.
Id.
"No one may be required at the peril of life, liberty or property to speculate
as to the meaning of penal statutes. All are entitled to be informed as to what
the State commands or forbids."
Lanzetta v. New Jersey, 306 U.S. 451, 453, 83 L. Ed. 888, 59 S. Ct. 618 (1939). These considerations apply with particular force where the challenged statute
acts to inhibit freedoms affirmatively protected by the constitution.
Smith v. Goguen, 415 U.S. 566, 573, 39 L. Ed. 2d 605, 94 S. Ct. 1242 (1974). However, the chilling effect caused by an overly vague statute must be both
real and substantial,
Young v. American Mini-Theatres, 427 U.S. 50, 49 L. Ed. 2d 310, 96 S. Ct. 2440 (1976),
[**51] and a narrowing construction must be unavailable before a court will set it
[*867] aside,
Screws v. United States, 325 U.S. 91, 98, 89 L. Ed. 1495, 65 S. Ct. 1031 (1945).
Looking at the plain language of the Policy, it was simply impossible to
discern any limitation on its scope or any conceptual distinction between
protected and unprotected conduct. The structure of the Policy was in two
parts; one relates to cause and the other to effect. Both cause and effect must
be present to state a prima facie violation of the Policy. The operative words
in the cause section required that language must
"stigmatize" or
"victimize" an individual. However, both of these terms are general and elude precise
definition. Moreover, it is clear that the fact that a statement may
victimize or
stigmatize an individual does not, in and of itself, strip it of protection under the
accepted
First Amendment tests.
The first of the
"effects clauses" stated that in order to be
sanctionable, the
stigmatizing and
victimizing statements had to
"involve an express or implied threat to an individual's academic efforts,
employment, participation in University
sponsored
extra-curricular activities
[**52] or personal safety." It is not clear what kind of conduct would constitute a
"threat" to an individual's academic efforts. It might refer to an unspecified threat
of future retaliation by the
speaker. Or it might equally plausibly refer to the threat to a victim's academic
success because the
stigmatizing and
victimizing speech is so inherently distracting. Certainly the former would be unprotected
speech. However, it is not clear whether the latter would.
Moving to the second
"effect clause," a
stigmatizing or
victimizing comment is
sanctionable if it has the purpose or reasonably foreseeable effect of interfering with an
individual's academic efforts, etc. Again, the question is what conduct will be
held to
"interfere" with an individual's academic efforts. The language of the policy alone gives
no inherent guidance. The one interpretive resource the University provided was
withdrawn as
"inaccurate," an implicit admission that even the University itself was unsure of the
precise scope and meaning of the Policy.
During the oral argument, the Court asked the University's counsel how he would
distinguish between speech which was merely
offensive, which he conceded was protected,
[**53] and speech which
"stigmatizes or
victimizes" on the basis of an invidious factor. Counsel replied
"very carefully." The response, while refreshingly candid, illustrated the plain fact that the
University never articulated any principled way to distinguish
sanctionable from
protected speech. Students of common understanding were necessarily forced to guess at whether a
comment about a controversial issue would later be found to be
sanctionable under the Policy. The terms of the Policy were so vague that its enforcement
would violate the due process clause.
See
Cramp v. Board of Public Instruction, 368 U.S. 278, 285-88, 7 L. Ed. 2d 285, 82 S. Ct. 275 (1961).
VI. CONCLUSION.
A.
The foregoing constitutes the Court's findings of fact and conclusions of law.
Fed. R. Civ. P. 52. However, at this juncture, a few additional observations of
a general nature would seem to be in order. As the Court noted at the hearing
on August 25, 1989, there is nothing in the record to suggest that the
University looked at the experience of any other university in developing its
approach to the problem of
discriminatory
harassment. Had it done so, it might have discovered that Yale University,
[**54] a private institution not subject to the strictures of the
First Amendment, faced a similar dilemma pitting its efforts to promote equality against its
commitment to
free speech. In 1986, a sophomore at Yale was put on probation for two years by a
University
discipline board for disseminating a malicious flier intended to ridicule the homosexual
community. The board eventually reversed the sanction, but only after a second
hearing was held at which the student was represented by historian C. Vann
Woodward, author of the University's 1975 report on
free speech. N.Y.
[*868] Times, Oct. 15, 1986, at A27. That report concluded that
"freedom of expression is a paramount value, more important than civility or
rationality." N.Y. Times, Sept. 22, 1986, at B4. Writing about the case, Professor Woodward
observed:
It simply seems unnatural to make a fuss about the rights of a
speaker who offends the moral or political convictions passionately held by a
majority. The far more natural impulse is to stop the nonsense, shut it up,
punish it -- anything but defend it. But to give rein to that inclination would
be to make the majority the arbiters of truth for all. Furthermore, it
[**55] would put the universities into the business of censorship.
New York Times, Oct. 15, 1986, at A27.
While the Court is sympathetic to the University's obligation to ensure equal
educational opportunities for all of its students, such efforts must not be at the expense
of
free speech. Unfortunately, this was precisely what the University did. From the Acting
President's December 14
memorandum forward to the adoption of the Policy and continuing through the August 25
hearing, there is no evidence in the record that anyone at the University ever
seriously attempted to reconcile their efforts to combat discrimination with
the requirements of the
First Amendment. The apparent willingness to dilute the values of
free speech is ironic in light of the University's previous statements of policy on this
matter. In 1977, the Regents adopted the
"Statement on Freedom of Speech and Artistic Expression: The Rights and
Obligations of
Speakers, Performers, Audience Members, and Protesters at the University of Michigan" (Statement) which
"reaffirm[ed] formally [the University's] deep and lasting commitment to freedom
of speech and artistic expression." The Statement provides in part that
[**56]
freedom of speech must not ordinarily be restricted, governed or curtailed in
any way by content except where the law, as interpreted by the Supreme Court of
Michigan or the Supreme Court of the United States, holds that such an
expression does not fall within constitutionally protected
free speech. In all instances, the University authorities should act with maximum
constraint, even in the face of obvious bad taste or provocation. The belief
that some opinion is pernicious, false, or in any other way detestable cannot
be grounds for its suppression. n16
Needless to say, the philosophy expressed in the Statement is diametrically
opposed to that reflected in the Acting President's December 14
Memorandum. Apparently, no one involved in the drafting process noted the apparent
inconsistency with the Regents' views as expressed in the Statement.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n16 The Statement was redrafted by the University's Civil Liberties Board in
1988. The new Statement, substantially identical to the old, was formally
re-enacted by the Regents at their July 1988 meeting.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**57]
Throughout the case, the University's counsel strenuously urged that
First Amendment concerns held a top priority in the development and administration of the
Policy. Counsel repeatedly argued that the University interpreted the Policy to
reach conduct such as racial slurs and epithets in the
classroom directed at an individual victim. However, as the Court observed in its August
25, 1989 bench opinion,
what we have heard here this morning . . . from University counsel is a
revisionist view of the Policy on Discrimination and
Discriminatory
Harassment by Students in the University Environment, and it is a view and interpretation
of the Policy that was not in the minds of the legislators when it was adopted.
And there is nothing in the record that has been presented to the Court which
suggests that this was an appropriate interpretation of the policy.
Not only has the administrative enforcement of the Policy been wholly
inconsistent with counsel's interpretation, but withdrawal of the Guide,
see supra at 13, and the eleventh hour suspension of section 1(c),
see supra at 8, suggests that the University had no idea what the limits of the Policy
were and it was
[**58] essentially making up the rules as it went along.
[*869] B.
In his famous treatise on constitutional law, Thomas Cooley, Justice of the
Michigan Supreme Court and Professor of Law at the University's Law School,
came out as an early and forceful proponent of an expansive interpretation of
the
First Amendment. He reasoned that even if speech
exceed[s] all the proper bounds of moderation, the consolation must be that the
evil likely to spring from the violent discussion will probably be less, and
its correction by public sentiment more speedy, than if the terrors of the law
were brought to bear to prevent the discussion.
T. Cooley,
A Treatise on the Constitutional Limitations 429 (Da Capo ed. 1972) (1st ed. 1868). This observation appears as compelling
today as when it was first written over one hundred and twenty years ago.
Dated: SEPTEMBER 22, 1989
Detroit, Michigan
JUDGMENT - September 7, 1989
At a session of said Court, held in the Federal Building, City of Detroit,
County of Wayne, State of Michigan on September 07 1989.
PRESENT: Hon. AVERN COHN
This matter having come before the Court on Plaintiff's Motion for Preliminary
Injunctive
[**59] Relief, and the Court having consolidated the hearing with the trial on the
merits under Fed. R. Civ. P. 65, the Court having read the Briefs, Affidavits
and Exhibits, having heard the arguments of the parties, and having rendered
its opinion;
IT IS HEREBY ORDERED that The University of Michigan is permanently enjoined
from enforcing its Policy on Discrimination and
Discriminatory
Harassment by Students in the University Environment ("Policy") which was adopted April 15, 1988, as to
verbal behavior or
verbal conduct, but may enforce its Policy as to physical behavior or physical
conduct.
ADDENDUM
Inexplicably the Court did not become aware of a conference on legal story
telling at the University's Law School in April 1989 until after its Opinion
was docketed. Important for consideration of a broader perspective of the
issues put by the Policy and the Court's holding of unconstitutionality under
the
First Amendment is a paper delivered at the conference by Mari J. Matsuda, an associate
professor of law at the William S. Richardson School of Law at the University
of Hawaii:
Public Response To
Racist Speech: Considering The Victim's Story,
87 Mich. L. Rev. 2320,
[**60] August 1989.* Professor Matsuda's description of her purpose amply describes
the significance of the paper:
This article attempts to begin a conversation about the
first amendment that acknowledges both the civil libertarian's fear of tyranny and the
victims' experience of loss of liberty in a society that tolerates
racist speech. It suggests criminalization of a narrow, explicitly defined class of
racist hate speech, to provide public redress for the most serious harm, while
leaving many forms of
racist speech to private remedies . . . . This is not an easy legal or moral puzzle,
but it is precisely in these places where we feel conflicting tugs at heart and
mind that we have the most work to do and the most knowledge to gain.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
* The Opinion was signed and filed around noon on September 22, 1989. The
August 1989 issue of the Law Review, while delivered by mail to chambers that
morning, was not first read by the Court until that evening. An earlier
awareness of Professor Matsuda's paper certainly would have sharpened the
Court's view of the issues.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**61]
DATED: September 25, 1989
Detroit, Michigan
Prepared: March 26, 2003 - 5:02:29 PM
Edited and Updated, March 27, 2003
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