Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989)

Doe v. University of Michigan
721 F. Supp. 852 (E.D. Mich. 1989)

This case involved the constitutionality of the University of Michigan at Ann Arbor’s “Policy on Discrimination and Discriminatory Harassment of Students in the University Environment,” which became effective on May 31, 1988 and was set to expire on December 31, 1989 unless reenacted. 

More information about the Policy is in Chapter 2 of the book, and in the opinion that follows.

COHN, District Judge.

It is an unfortunate fact of our constitutional system that the ideals of freedom and equality 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, 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 John Doe’s (Doe) prayer for 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 …

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 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 …

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. …

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. “Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.” NAACP v. Button. 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. …

The University repeatedly argued that the Policy did not apply to speech that is protected by the First Amendment. It urged the Court to [look] to “the manner in which the Policy has been interpreted and applied by those charged with its  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. 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. A formal hearing on the charges was held on January 28, 1989. The 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: 

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. The Policy Administrator was able to persuade the perpetrator to attend an educational “gay 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  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.” 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 student.

 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 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.

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.” 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. “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. These considerations apply with particular force where the challenged statute acts to inhibit freedoms affirmatively protected by the constitution. However, the chilling effect caused by an overly vague statute must be both real and substantial, and a narrowing construction must be unavailable before a court will set it aside.

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 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,  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. …

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. [T]here 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.