RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 19a0249p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT SPEECH FIRST, INC., ┐ Plaintiff-Appellant, │ │ > No. 18-1917 v. │ │ │ MARK SCHLISSEL, in his official capacity as President │ of the University of Michigan, et al., │ Defendants-Appellees. │ ┘ Appeal from the United States District Court for the Eastern District of Michigan at Flint. No. 4:18-cv-11451—Linda V. Parker, District Judge. Argued: May 2, 2019 Decided and Filed: September 23, 2019 Before: COOK, McKEAGUE, and WHITE, Circuit Judges. _________________ COUNSEL ARGUED: William S. Consovoy, CONSOVOY MCCARTHY PARK PLLC, Arlington, Virginia, for Appellant. Kevin T. Baine, WILLIAMS & CONNOLLY LLP, Washington, D.C., for Appellees. ON BRIEF: William S. Consovoy, Jeffrey M. Harris, CONSOVOY MCCARTHY PARK PLLC, Arlington, Virginia, for Appellant. Kevin T. Baine, Stephen J. Fuzesi, Kathryn “Kylie” Hoover, Amy B. McKinlay, WILLIAMS & CONNOLLY LLP, Washington, D.C., Leonard M. Niehoff, HONIGMAN MILLER SCHWARTZ AND COHN LLP, Ann Arbor, Michigan, for Appellees. Thomas W. Kidd, Jr., KIDD & URLING LLC, West Chester, Ohio, Lawrence J. Joseph, Washington, D.C., for Amici Curiae. McKEAGUE, J., delivered the opinion of the court in which COOK, J., joined. WHITE, J. (pp. 16–23), delivered a separate dissenting opinion. No. 18-1917 Speech First, Inc. v. Schlissel, et al. Page 2 _________________ OPINION _________________ McKEAGUE, Circuit Judge. Universities have historically been fierce guardians of intellectual debate and free speech, providing an environment where students can voice ideas and opinions without fear of repercussion. According to Speech First, the University of Michigan has not lived up to this historic ideal. Instead, Speech First contends that the University of Michigan has stifled student speech through its policy prohibiting bullying and harassing behavior and its Bias Response Team initiative. Speech First claims that the policy and initiative violate the First Amendment, sweeping in protected speech through overbroad and vague prohibitions. Shortly after filing its complaint, Speech First moved for a preliminary injunction enjoining enforcement of the policy and use of the initiative. The district court declined to issue the preliminary injunction, based in part on its findings that Speech First lacked standing to challenge the Bias Response Team initiative and that the claims challenging the policy were moot. We disagree. Accordingly, for the reasons set forth below, we vacate the district court’s denial of injunctive relief and remand the case for the district court to consider the merits of Speech First’s motion for a preliminary injunction. I. Speech First first challenges the University of Michigan’s policy prohibiting harassing and bullying behavior. The Statement of Student Rights and Responsibilities (the Statement) contains the University’s policies. The Statement prohibits, among other things, “[h]arassing or bullying another person—physically, verbally, or through other means.” Punishments for violating the Statement—called “interventions” and “sanctions”—range from a formal reprimand to expulsion. Speech First does not challenge the prohibition of harassing or bullying behavior itself. Rather, Speech First argues that one set of the University’s definitions of “bullying” and “harassing” behavior is overbroad ...
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