“ 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 Harassment." ”

“ 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
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. ”

“ 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 would put the universities into the business of censorship. ”

“ At the January 15, 1988 meeting of the Regents, the Acting President informed the 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. [3] 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." ”

“ 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. ”

“ 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. ”

“ 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
[w] e 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. ”

“ 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. ”

“ 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. ”

“ 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 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 ... ”

“ 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, see United States v. O'Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (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. ”

“ 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. [15]
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 413 U.S. at 607, 93 S.Ct. at 2913. 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. ”

“ 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. 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. ”

“ 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.
↑ 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. ”

“ 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, 94 S.Ct. 1209, 39 L.Ed.2d 505 (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, 738 F.2d 1375 (D.C.Cir.1984) . Rather, the threat of enforcement must be specific and direct and against a particular party. ”

“ 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.↑ 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. ”

“ A non-American governmental edict may still be copyrighted outside the U.S. Similar to {{PD-in-USGov}}, the above U.S. Copyright Office Practice does not prevent U.S. states or localities from holding copyright abroad, depending on foreign copyright laws and regulations. ”