John Doe v. University Of Michigan

721 F. Supp. 852 (1989)

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Nature of the Case

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Facts

D, 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. D claims that in the last three years, incidents of racism and racial harassment are increasingly frequent at the University. On January 27, 1987, a flier declaring 'open season' on blacks, which it referred to as 'saucer lips, porch monkeys, and jigaboos' was disseminated. 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. D's President issued a statement expressing outrage and reaffirming D's commitment to maintaining a racially, ethnically, and culturally diverse campus. D was unable to identify any of the perpetrators. The United Coalition Against Racism (UCAR), a campus anti-discrimination group, announced that it intended to file a class action civil rights suit against D 'for not maintaining or creating a non-racist, non-violent atmosphere' on campus. D adopted a six-point action plan to remedy the racial problems on campus. In part, it adopted 'an anti-racial harassment policy . . . as a component of the University's rules and regulations with appropriate sanctions specified.' An analysis of the complaints which were filed reflects that D had neither independently verified the accuracy of the complaints nor identified a specific perpetrator for most of the incidents. D formulated 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.' D knew the proposed policy would engender serious First Amendment problems. The Policy was unanimously adopted. Persons were subject to discipline for any behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status, and that involves an express or implied threat to an individual's academic efforts, employment, participation in University sponsored extra-curricular activities or personal safety; or 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. Informal complaints could be filed and D officers were 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 the 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 settlement proved impossible, a formal complaint would be filed. An independent investigation would be conducted. 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. 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 the accused student was dissatisfied 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. D could impose a (1) formal reprimand; (2) community service; (3) class attendance; (4) restitution; (5) removal from D housing; (6) suspension from specific courses and activities; (7) suspension; and (8) expulsion. Suspension and expulsion could only be imposed for violent or dangerous acts, repeated offenses, or a willful failure to comply with a lesser sanction. The University President could set aside or lessen any sanction. D also made a guide that listed the types of infractions that would lead to punishment but it was quickly withdrawn. Almost all of the offenses listed were not even close to being criminal. They were just rude and in bad taste. P claimed 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. D claimed that D did not demonstrate a credible threat of enforcement as to himself.