CHICAGO — A federal appeals panel has rejected a bid by a group seeking to block alleged censorship and speech review policies at the University of Illinois, even as an organization representing a group of students say they fear reprisals on campus should they express "political, social and policy views that are unpopular on campus."
On July 28, a three-judge panel of the U.S. Seventh Circuit Court of Appeals upheld a federal judge’s decision to refuse a request for an injunction sought by the organization known as Speech First, as part of the group's free speech lawsuit targeting the University of Illinois at Urbana-Champaign.
Speech First Inc., which advocates for the First Amendment rights of college students, sued UIUC and 29 administrators on behalf of four unnamed students who claimed school policies prevented them from expressing unpopular political and social views. The complaint listed the school’s Bias Assessment and Response Team, the imposition of no contact directives and a rule requiring prior approval of certain literature distribution as structural impediments forcing students to self-censor.
U.S. District Judge Colin Bruce ruled Speech First lacked standing to request a preliminary injunction barring UIUC from its bias reduction efforts because its members couldn’t say they would face discipline under the cited policies. That decision was appealed.
The Seventh Circuit appellate panel backed Judge Bruce, however.
Seventh Circuit Judge Amy St. Eve wrote the opinion; Judge Michael Scudder concurred, while Judge Michael Brennan issued a partial concurrence and partial dissent.
“The university has not investigated or punished any of the students who are members of Speech First pursuant to any of the challenged university policies,” St. Eve wrote. “Rather, Speech First asserts that the university’s policies chill the students’ speech because the students fear the university will investigate or punish them under these policies.”
According to the panel, Bruce determined “being reported to BART or (the Bias Incident Protocol) results in essentially no consequences.” Further, St. Eve said, the complaint doesn’t describe “with any particularity” the statements the students wanted to make, rendering it unclear if they would even be reported for review. She also noted most students either ignore BART contacts or decline to meet with the team, and there are no consequences in those cases.
St. Eve said Bruce was right to give little weight to the “general, conclusory contentions” of Speech First President Nicole Neily, as she lacks firsthand experience with BART. Although the Team is able to refer potential Student Code violations to the Office for Student Conflict Resolution, and potential legal violations to university police, it is those bodies that determine and impose punishments.
Although Speech First said the Sixth Circuit Court of Appeals ruled in its favor last year in a similar dispute with the University of Michigan, St. Eve said the lawsuit against UIUC doesn’t contain evidence that invitations to meet with BART carry an implicit threat.
“The fact that the majority of students decline to meet signals that students do not fear consequences from their refusal to participate,” St. Eve wrote.
The panel also upheld Bruce’s finding on no contact directives: that they can only be imposed to prevent Student Code violations, not in response to student speech. St. Eve said Speech First showed no examples of a directive issued on the bases of speech.
“The uncontested statistics the university provided about the reasons for imposing NCDs demonstrate that the majority of NCDs arise as a result of a violation of the Student Code,” St. Eve wrote, “which, again, does not prohibit protected speech.”
She also said the university repealed its policy on posting materials for non-student elections, mooting that porting of Speech First’s complaint.
In his opinion, Brennan agreed Speech First didn’t show it suffered an injury but said the literature distribution dispute remains open because UIUC hasn’t “shown with absolute clarity that the prior approval rule has perished permanently.” As quickly as the rule was rescinded it could be reinstated, he wrote, and the school “remains unconstrained to reverse itself on the prior approval requirement.”
The proceedings will resume at the district court level, and Brennan said Bruce can consider whether to allow pleading amendments and further discovery.