The DOJ’s statement of interest, joining plaintiff civil liberties group Speech First, also cites the Fourteenth Amendment in arguing that the language of the University of Michigan’s bias policy “chills protected speech”; according to the New York Times, that chilling stemmed from the environment created by the Bias Response Team, under which members of Speech First “were abused for wearing red ‘Make America Great Again’ hats and for supporting President [Donald] Trump.”
Trump’s DOJ alleges that the bias response policy itself is “an overbroad, vague, and subjective standard that is a paradigmatic example of the chilling of free expression”—an unconstitutional instance of bad policy. And while the DOJ’s statement of interest never explicitly explains the Fourteenth Amendment, it does argue that the vague wording of the Bias Response Team policies violates the Due Process Clause, which guarantees that an individual’s opportunities for speech aren’t abrogated by government organs—like, for example, law enforcement and other disciplinary officials at a taxpayer-funded university in Michigan.
To be sure, university judicial organs are basically kangaroo courts, often divorced from the legal realities of the topics they attempt to police (see: sexual assault). But the lack of any elaboration in the brief on the Fourteenth Amendment poses a major question: Why is the Trump administration really interested in this dispute? After all, free speech on college campuses is a favorite pet project for a Trump administration; the amicus brief represents an opportunity for the current DOJ to not just influence the course of judicial proceedings, but to highlight them by elevating them to the level of political drama.
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