Bullying and Free Speech

The U.S. Justice Department on Monday filed a brief backing a lawsuit that challenges an anti-bullying policy at the University of Michigan. The department said the policy limited the free speech rights of students and others. But the same day, Michigan announced that it had clarified its policy, explicitly pledging support for First Amendment rights and adopting definitions of bullying and harassment based on state law.

Whether the university's clarifications will resolve the Justice Department's concerns is unclear.

The Justice Department announcement said that it found the university's code of student conduct to be "unconstitutional because it offers no clear, objective definitions of the violations" for bullying or harassing. "Instead, the statement refers students to a wide array of 'examples of various interpretations that exist for the terms,' many of which depend on a listener’s subjective reaction to speech."

Acting Associate Attorney General Jesse Panuccio issued this statement: “Freedom of speech and expression on the American campus are under attack. This Justice Department, under the leadership of Attorney General Jeff Sessions, is committed to promoting and defending Americans’ first freedom at public universities."

The Justice Department also challenged the constitutionality of the university's Bias Response Team, which the department said "consists of university administrators and law enforcement officers" and, the department says, "has the authority to subject students to discipline and sanction."

With regard to the team, the university is saying that the Justice Department is overstating the power of the team. A spokesman for the university told The Detroit News, "Contrary to the department’s statement, the university’s Bias Response Team does not 'ha[ve] the authority to subject students to discipline and sanction.' Rather, it provides support to students on a voluntary basis."

While the university did not say that its previous policies on bullying and harassment were problematic, the revised policies released Monday appear to speak to some of the Trump administration's concerns. The university said that it eliminated general definitions of bullying and harassment and left only definitions from Michigan law. Further, the revisions state that First Amendment protections apply to activities at the university.

The new definitions of bullying and harassment follow.

Bullying: Any written, verbal or physical act, or any electronic communication, directed toward a person that is intended to cause or that a reasonable person would know is likely to cause, and that actually causes, physical harm or substantial emotional distress and thereby adversely affects the ability of another person to participate in or benefit from the university’s educational programs or activities. Bullying does not include constitutionally protected activity or conduct that serves a legitimate purpose.

Harassing: Conduct directed toward a person that includes repeated or continuing unconsented contact that would cause a reasonable individual to suffer substantial emotional distress and that actually causes the person to suffer substantial emotional distress. Harassing does not include constitutionally protected activity or conduct that serves a legitimate purpose.