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[Cite as: _Doe v. University of Michigan_, 721 F. Supp. 852 (E.D. Mich. 1989)]

                                 John DOE, Plaintiff, 
                      UNIVERSITY OF MICHIGAN, Defendant.
                              Civ. No. 89-71683.
                         United States District Court,
                                E.D. Michigan,
                              Southern Division.
                                Sept. 22, 1989.


 COHN, District Judge.

  [T]aking stock of the legal system's own limitations, we must realize
that judges, being human, will not only make mistakes but will sometimes
succumb to the pressures exerted by the government to allow restraints [on
speech] that ought not to be allowed.  To guard against these possibilities we
must give judges as little room to maneuver as possible and, again, extend the
boundary of the realm of protected speech into the hinterlands of speech in
order to minimize the potential harm from judicial miscalculation and misdeeds.
          L. Bollinger, The
         Tolerant Society 78

 It is an unfortunate fact of our constitutional system that the ideals of
freedom and equality are often in conflict.  The difficult and sometimes
painful task of our political and legal institutions is to mediate the
appropriate balance between these two competing values.  Recently, the
University of Michigan at Ann Arbor (the University), a state-chartered
university, see Mich. Const. art. VIII, 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.  However laudable
or appropriate an effort this may have been, the Court found that the Policy
swept within its scope a significant amount of "verbal conduct" or "verbal
behavior" which is unquestionably protected speech under the First Amendment.
Accordingly, the Court granted plaintiff *854 John Doe's (Doe) [FN1] prayer
for a permanent injunction as to those parts of the Policy restricting speech
activity, but denied the injunction as to the Policy's regulation of physical
conduct.  The reasons follow.

 According to the University, in the last three years incidents of racism and
racial harassment appeared to become increasingly frequent at the University.
For example, on January 27, 1987, unknown persons distributed a flier
declaring "open season" on blacks, which it referred to as "saucer lips, porch
monkeys, and jigaboos."  On February 4, 1987, 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.  These events and others prompted the University's President
on February 19, 1987 to issue a statement expressing outrage and reaffirming
the University's commitment to maintaining a racially, ethnically, and
culturally diverse campus.  The University was unable to identify any of the
perpetrators.  It is unknown whether the culprits were students.  Likewise,
there was no evidence to suggest that these were anything other than isolated
and purposeless acts.
 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.  
 Following the hearing, the United Coalition Against Racism (UCAR), a campus
anti-discrimination group, announced that it intended to file a class action
civil rights suit against the University "for not maintaining or creating a
non-racist, non-violent atmosphere" on campus.  Following discussions with a
national civil rights leader in March of 1987, the University adopted a six-
point action plan to remedy the racial problems on campus.  This included the
adoption of "[a]n anti-racial harassment policy ... as a component of the
University's rules and regulations with appropriate sanctions specified."
 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.
 Following the January meeting, the Acting President appointed the Director of
the University Office of Affirmative Action (Director) to draft a policy.  The
proposed policy went through twelve drafts.
... At the April 14, 1988 Regents meeting, the Policy was unanimously adopted. It became
effective on May 31, 1988 and was set to expire on December 31, 1989 unless

A. The Terms of the Policy
 The Policy established a three-tiered system whereby the degree of regulation
was dependent on the location of the conduct at issue.  The broadest range of
speech and dialogue was "tolerated" in variously described public parts of the
campus.  Only an act of physical violence or destruction of property was
considered sanctionable in these settings.  Publications sponsored by the
University such as the Michigan Daily and the Michigan Review were not subject
to regulation.  The conduct of students living in University housing is
primarily governed by the standard provisions of individual leases, however the
Policy appeared to apply in this setting as well.  The Policy by its
terms applied specifically to "[e]ducational and academic centers, such as
classroom buildings, libraries, research laboratories, recreation and study
centers[.]"  In these areas, persons were subject to discipline for:

  1. 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
  a. Involves an express or implied threat to an individual's academic efforts,
employment, participation in University sponsored extra-curricular activities
or personal safety;  or
  b. 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;  or
  c. Creates an intimidating, hostile, or demeaning environment for educational
pursuits, employment or participation in University sponsored extra-curricular
  2. Sexual advances, requests for sexual favors, and verbal or physical
conduct that stigmatizes or victimizes an individual on the basis of sex or
sexual orientation where such behavior:
  a. Involves an express or implied threat to an individual's academic efforts,
employment, participation in University sponsored extra-curricular activities
or personal safety;  or
  b. 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;  or
  c. Creates an intimidating, hostile, or demeaning environment for educational
pursuits, employment or participation in University sponsored extra-curricular
 On August 22, 1989, the University publicly announced, without prior notice to
the Court or Doe, that it was withdrawing section 1(c) on the grounds that "a
need exists for further explanation and clarification of [that section] of the
policy."  No reason was given why the analogous provision in paragraph 2(c) was
allowed to stand.
 The Policy by its terms recognizes that certain speech which might be
considered in violation may not be sanctionable, stating:  "The Office of the
General Counsel *857 will rule on any claim that conduct which is the
subject of a formal hearing is constitutionally protected by the first
 C. Sanctions

 The Policy provided for progressive discipline based on the severity of the
violation.  It stated that the University encouraged hearing panels to impose
sanctions that include an educational element in order to sensitize the
perpetrator to the harmfulness of his or her conduct.  The Policy provided,
however, that compulsory class attendance should not be imposed "in an attempt
to change deeply held religious or moral convictions."  Depending on the intent
of the accused student, the effect of the conduct, and whether the accused
student is a repeat offender, one or more of the following sanctions may be
imposed:  (1) formal reprimand;  (2) community service;  (3) class
attendance;  (4) restitution;  (5) removal from University housing;  (6)
suspension from specific courses and activities;  (7) suspension;  (8)
expulsion.  The sanctions of 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
D. Interpretive Guide
 Shortly after the promulgation of the policy in the fall of 1988, the
University Office of Affirmative Action issued an interpretive guide (Guide)
entitled What Students Should Know about Discrimination and Discriminatory
Harassment by Students in the University Environment.  The Guide purported to
be an authoritative *858 interpretation of the Policy and provided examples
of sanctionable conduct.  These included:
  A flyer containing racist threats distributed in a residence hall.
  Racist graffiti written on the door of an Asian student's study carrel.
  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
  Students in a residence hall have a floor party and invite everyone on their
floor except one person because they think she might be a lesbian.
  A black student is confronted and racially insulted by two white students in
a cafeteria.
  Male students leave pornographic pictures and jokes on the desk of a female
graduate student.
  Two men demand that their roommate in the residence hall move out and be
tested for AIDS.
 In addition, the Guide contained a separate section entitled "You are a
harasser when ..." which contains the following examples of discriminatory
  You exclude someone from a study group because that person is of a different
race, sex, or ethnic origin than you are.
  You tell jokes about gay men and lesbians.
  Your student organization sponsors entertainment that includes a comedian who
slurs Hispanics.
  You display a confederate flag on the door of your room in the residence
  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
 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."
 According to the University, the Guide was withdrawn at an unknown date in the
winter of 1989, because "the information in it was not accurate."  The
withdrawal had not been announced publicly as of the date this case was filed.

 [1] Doe is a psychology graduate student.  His specialty is the field of
biopsychology, which he describes as the interdisciplinary study of the
biological bases of individual differences in personality traits and mental
abilities.  Doe said 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.  He asserted that his right to freely and
openly discuss these theories was impermissibly chilled, and he requested that
the Policy be declared unconstitutional and enjoined on the grounds of
vagueness and overbreadth.

 Were the Court to look only at the plain language of the Policy, it might have
to agree with the University that Doe could not have realistically alleged a
genuine and credible threat of enforcement.  The Policy prohibited conduct
which "stigmatizes or victimizes" students on the basis of "race, ethnicity,
religion, sex, sexual orientation" and other invidious factors.  However, the
terms "stigmatize" and "victimize" are not self defining. [FN8]  These words
can only be understood with reference to some exogenous value system.  What one
individual might find victimizing or stigmatizing, another individual might
not.  Accordingly, the likelihood of a complaint being filed in response to
Doe's anticipated classroom comments would be speculative at best.  
  The slate was not so clean, however.  The Court had before it not only
the terms of the Policy, but also its legislative history, the Guide, and
experiences gleaned from a year of enforcement.  The record clearly shows that
there existed a realistic *860 and credible threat that Doe could be
sanctioned were he to discuss certain biopsychological theories.

 Doe initially moved for a preliminary injunction against the Policy on the
grounds that it was unconstitutionally vague and overbroad and that it chilled
speech and conduct protected by the First Amendment.  The University in
response said that the Policy has never been applied to reach protected speech
and a preliminary injunction should therefore be denied.  At the August 25,
1989 hearing on Doe's motion, the Court, without objection, consolidated the
hearing on the motion with the trial on the merits pursuant to Fed.R.Civ.P.
65(a)(2). [FN10]  This obviated the need to consider whether Doe had made the
requisite showing to warrant the issuance of a preliminary injunction.  See
Mason County Medical Association v. Knebel, 563 F.2d 256 (6th Cir.1977).

     FN10. The University reserved the right to supplement the record to
    clarify any disputed factual issues, which it subsequently did.  Doe chose
    not to respond.  Nothing in the University's clarification papers
    materially changed any of the facts the Court relied upon in reaching its

 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.
 Although the line is sometimes difficult to draw with precision, the
Court must distinguish at the outset between the First Amendment protection of
so-called "pure speech" and mere conduct.  See L. Tribe, Constitutional Law
sec. 12-7 (2d Ed.1988).  As to the latter, it can be safely said that most
extreme and blatant forms of discriminatory conduct are not protected by the
First Amendment, and indeed are punishable by a variety of state and federal
criminal laws and subject to civil actions.  Discrimination in employment,
education, and government benefits on the basis of race, sex, ethnicity, and
religion are prohibited by the constitution and both state and federal
statutes. [FN11]  See, e.g., U.S. Const. amends. V, XIV;  Mich Const. art. I,
sec. 2;  42 U.S.C. sec. 2000e-16 (employment);  Mich.Stat.Ann. sec. 3.548(202)
[M.C.L.A. sec. 37.2202] (employment);  42 U.S.C. sec. 2000c (education);  Mich.
Const. art. VIII, sec. 2 (education);  42 U.S.C. sec. 2000d *862 (government
benefits).  In addition, the state provides criminal penalties and civil
remedies for assault and battery, Mich.Stat.Ann. secs. 28.276-28.278 [M.C.L.A.
secs. 750.81-750.83];  Mich.Stat.Ann. sec. 28.344(2) [M.C.L.A. sec. 750.1476]
(physical assault for purposes of ethnic intimidation). ...
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.  Chaplinsky v. New
Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).  These would
include "the lewd and obscene, the profane, the libelous, and the insulting or
'fighting words'--those which by their very utterance inflict injury or tend to
incite an immediate breach of the peace."  Id. at 572, 62 S.Ct. at 769.  Under
certain circumstances racial and ethnic epithets, slurs, and insults might fall
within this description and could constitutionally be prohibited by the
University.  In addition, such speech may also be sufficient to state a claim
for common law intentional infliction of emotional distress. ...
 Finally, the University may subject all speech and conduct to
reasonable and nondiscriminatory time, place, and manner restrictions which are
narrowly tailored and which leave open ample alternative means of
communication.  Heffron v. International Society for Krishna Consciousness, 452
U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981). 
 What the University could not do, however, was establish an anti-
discrimination policy which had the effect of prohibiting certain speech
because it disagreed with ideas or messages sought to be conveyed.  Texas v.
Johnson, --- U.S. ----, ----, 109 S.Ct. 2533, 105 L.Ed.2d 342, 360 (1989);
Chicago Police Department v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2289-90,
33 L.Ed.2d 212 (1972);  Cohen v. California, 403 U.S. 15, 24, 91 S.Ct. 1780,
1787, 29 L.Ed.2d 284 (1971);  NAACP v. Button, 371 U.S. 415, 445, 83 S.Ct. 328,
852, 9 L.Ed.2d 405 (1963);  Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct.
894, 895, 93 L.Ed. 1131 (1949).  As the Supreme Court stated in West Virginia
State Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187,
87 L.Ed. 1628 (1943):

  "If there is any star fixed in our constitutional constellation, it is that no
official, high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion or force citizens to confess
by word or act their faith therein."

  It is firmly settled that under our Constitution the public expression of
ideas may not be prohibited merely because the ideas are themselves offensive
to some of their hearers.  
 These principles acquire a special significance in the university setting,
where the free and unfettered interplay of competing views is essential to the
institution's educational mission.  Keyishian v. Board of Regents, 385 U.S.
589, 603, 87 S.Ct. 675, 683, 17 L.Ed.2d 629 (1967);  Sweezy v. New Hampshire,
354 U.S. 234, 250, 77 S.Ct. 1203, 1211-12, 1 L.Ed.2d 1311 (1957).  With these
general rules in mind, the Court can now consider *864 whether the Policy
sweepswithin its scope speech which is otherwise protected by the First

 B. Overbreadth

 [4] Doe claimed that the Policy was invalid because it was facially
overbroad.  It is fundamental that statutes regulating First Amendment
activities must be narrowly drawn to address only the specific evil at hand.
Broadrick v. Oklahoma, 413 U.S. 601, 611, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830
(1973).  "Because First Amendment freedoms need breathing space to survive,
government may regulate in the area only with narrow specificity."  NAACP v.
Button, supra 371 U.S. at 433, 83 S.Ct. at 845-46.  A law regulating speech
will be deemed overbroad if it sweeps within its ambit a substantial amount of
protected speech along with that which it may legitimately regulate. ...
...The Supreme Court found that this statute was overbroad as well, because it
punished speech which did not rise to the level of "fighting words," as defined
in Chaplinsky v. New Hampshire, supra.  The Supreme Court struck down a similar
ordinance in Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214
(1974), on the same grounds.  In Papish v. University of Missouri, 410 U.S.
667, 93 S.Ct. 1197, 35 L.Ed.2d 618 (1973), the Supreme Court ordered the
reinstatement of a university student expelled for distributing an underground
newspaper sporting the headline "Motherfucker acquitted" on the grounds that
"the mere dissemination of ideas--no matter how offensive to good taste--on a
state university campus may not be shut off in the name alone of conventions of
decency."  Id. at 670, 93 S.Ct. at 1199.  Although the Supreme Court
acknowledged that reasonable restrictions on the time, place, and manner of
distribution might have been permissible, "the opinions below show clearly
that [plaintiff] was dismissed because of the disapproved content of the
newspaper."  Id.  Most recently, in Texas v. Johnson, supra, the Supreme Court
invalidated a Texas statute prohibiting burning of the American flag on the
grounds that there was no showing that the prohibited conduct was likely to
incite a breach of the peace.  These cases stand generally for the proposition
that the state may not prohibit broad classes of speech, some of which may
indeed be legitimately regulable, if in so doing a substantial amount of
constitutionally protected conduct is also prohibited.  This was the
fundamental infirmity of the Policy.


 The University repeatedly argued that the Policy did not apply to speech that
is protected by the First Amendment.  It urged the Court to disregard the Guide
as "inaccurate" and look instead to "the manner in which the Policy has been
interpreted and applied by those charged with its *865 enforcement."
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.  
 Although the student was not sanctioned over the allegations of sexual
orientation harassment, the fact remains that the Policy Administrator--the
authoritative voice of the University on these matters--saw no First Amendment
problem in forcing the student to a hearing to answer for allegedly harassing
statements made in the course of academic discussion and research.  Moreover,
there is no indication that had the hearing panel convicted rather than
acquitted the student, the University would have interceded to protect the
interests of academic freedom and freedom of speech.
 A second case, which was informally resolved, also demonstrated that the
University did not exempt statements made in the course of classroom academic
discussions from the sanctions of the policy.  On September 28, 1988, a
complaint was filed against a student in an entrepreneurship class in the
School of Business Administration for reading an allegedly homophobic limerick
during a scheduled class public-speaking exercise which ridiculed a well known
athlete for his presumed sexual orientation.  Complaint No. 88-9-05.  The
Policy Administrator was able to persuade the perpetrator to attend an
educational "gay rap" session, write a letter of apology to the Michigan Daily,
and apologize to his class and the matter was dropped.  No discussion of the
possibility that the limerick was protected speech appears in the file or in
the Administrator's notes.
 A third incident involved a comment made in the orientation session of
a preclinical *866 dentistry class.  The class was widely regarded as one of
the most difficult for second year dentistry students.  To allay fears and
concerns at the outset, the class was broken up into small sections to
informally discuss anticipated problems.  During the ensuing discussion, a
student stated that "he had heard that minorities had a difficult time in the
course and that he had heard that they were not treated fairly."  Complaint No.
88-9-07.  A minority professor teaching the class filed a complaint on the
grounds that the comment was unfair and hurt her chances for tenure.  Following
the filing of the complaint, the student was "counseled" about the existence of
the policy and agreed to write a letter apologizing for making the comment
without adequately verifying the allegation, which he said he had heard from
his roommate, a black former dentistry student.
 The manner in which these three complaints were handled demonstrated that the
University considered serious comments made in the context of classroom
discussion to be sanctionable under the Policy.  The innocent intent of the
speaker was apparently immaterial to whether a complaint would be pursued.
Moreover, the Administrator generally failed to consider whether a comment was
protected by the First Amendment before informing the accused student that a
complaint had been filed.  The Administrator instead attempted to persuade the
accused student to accept "voluntary" sanctions.  Behind this persuasion was,
of course, the subtle threat that failure to accept such sanctions might result
in a formal hearing.  There is no evidence in the record that the Administrator
ever declined to pursue a complaint through attempted mediation because the
alleged harassing conduct was protected by the First Amendment.

 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.  Id.  "No one may be required at the peril of life, liberty or
property to speculate as to the meaning of penal statutes.  All are entitled to
be informed as to what the State commands or forbids."  Lanzetta v. New Jersey,
306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939).  These
considerations apply with particular force where the challenged statute acts to
inhibit freedoms affirmatively protected by the constitution.  Smith v. Goguen,
415 U.S. 566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974).  However, the
chilling effect caused by an overly vague statute must be both real and
substantial, Young v. American Mini-Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49
L.Ed.2d 310 (1976), and a narrowing construction must be unavailable before a
court will set it *867 aside, Screws v. United States, 325 U.S. 91, 98, 65
S.Ct. 1031, 1033, 89 L.Ed. 1495 (1945).
 [5] Looking at the plain language of the Policy, it was simply
impossible to discern any limitation on its scope or any conceptual distinction
between protected and unprotected conduct.  The structure of the Policy was in
two parts;  one relates to cause and the other to effect.  Both cause and
effect must be present to state a prima facie violation of the Policy.  The
operative words in the cause section required that language must "stigmatize"
or "victimize" an individual.  However, both of these terms are general and
elude precise definition.  Moreover, it is clear that the fact that a statement
may victimize or stigmatize an individual does not, in and of itself, strip it
of protection under the accepted First Amendment tests.
 The first of the "effects clauses" stated that in order to be sanctionable,
the stigmatizing and victimizing statements had to "involve an express or
implied threat to an individual's academic efforts, employment, participation
in University sponsored extra-curricular activities or personal safety."  It is
not clear what kind of conduct would constitute a "threat" to an individual's
academic efforts.  It might refer to an unspecified threat of future
retaliation by the speaker.  Or it might equally plausibly refer to the threat
to a victim's academic success because the stigmatizing and victimizing speech
is so inherently distracting.  Certainly the former would be unprotected
speech.  However, it is not clear whether the latter would.
 Moving to the second "effect clause," a stigmatizing or victimizing comment is
sanctionable if it has the purpose or reasonably foreseeable effect of
interfering with an individual's academic efforts, etc.  Again, the question is
what conduct will be held to "interfere" with an individual's academic
efforts.  The language of the policy alone gives no inherent guidance.  The one
interpretive resource the University provided was withdrawn as "inaccurate," an
implicit admission that even the University itself was unsure of the precise
scope and meaning of the Policy.
 During the oral argument, the Court asked the University's counsel how he
would distinguish between speech which was merely offensive, which he conceded
was protected, and speech which "stigmatizes or victimizes" on the basis of an
invidious factor.  Counsel replied "very carefully."  The response, while
refreshingly candid, illustrated the plain fact that the University never
articulated any principled way to distinguish sanctionable from protected
speech.  Students of common understanding were necessarily forced to guess at
whether a comment about a controversial issue would later be found to be
sanctionable under the Policy.  The terms of the Policy were so vague that its
enforcement would violate the due process clause.  See Cramp v. Board of Public
Instruction, 368 U.S. 278, 285-88, 82 S.Ct. 275, 279-281, 7 L.Ed.2d 285 (1961).

 The foregoing constitutes the Court's findings of fact and conclusions of
law.  Fed.R.Civ.P. 52.  However, at this juncture, a few additional
observations of a general nature would seem to be in order.  As the Court noted
at the hearing on August 25, 1989, there is nothing in the record to suggest
that the University looked at the experience of any other university in
developing its approach to the problem of discriminatory harassment.  
 While the Court is sympathetic to the University's obligation to ensure equal
educational opportunities for all of its students, such efforts must not be at
the expense of free speech.  Unfortunately, this was precisely what the
University did.  From the Acting President's December 14 memorandum forward to
the adoption of the Policy and continuing through the August 25 hearing, there
is no evidence in the record that any officials at the University ever
seriously attempted to reconcile their efforts to combat discrimination with
the requirements of the First Amendment.
 Not only has the administrative enforcement of the Policy been wholly
inconsistent with counsel's interpretation, but withdrawal of the Guide, see
supra at 13, and the eleventh hour suspension of section 1(c), see supra at 8,
suggests that the University had no idea what the limits of the Policy were and
it was essentially making up the rules as it went along.
                                    *869 B.
 In his famous treatise on constitutional law, Thomas Cooley, Justice of the
Michigan Supreme Court and Professor of Law at the University's Law School,
came out as an early and forceful proponent of an expansive interpretation of
the First Amendment.  He reasoned that even if speech
  exceed[s] all the proper bounds of moderation, the consolation must be that
the evil likely to spring from the violent discussion will probably be less,
and its correction by public sentiment more speedy, than if the terrors of the
law were brought to bear to prevent the discussion.
 T. Cooley, A Treatise on the Constitutional Limitations 429 (Da Capo ed.
1972) (1st ed. 1868).  This observation appears as compelling today as when it
was first written over one hundred and twenty years ago.


     FN1. 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
    Doe was represented by counsel provided by the American Civil Liberties
    Union.  His attorneys are to be commended for the consistently high quality
    of the representation they provided Doe in this case.
     FN8. "Stigmatize" is defined in The American Heritage Dictionary 1266
    (1978) as "1. To characterize or brand as disgraceful or ignominious mark
    with stigma or brand.  2. To brand or mark with a stigma or stigmata.  3.
    To cause stigmata to appear on."  "Victimize" is defined as "1. To subject
    to swindle or fraud;  to cause discomfort or suffering to.  2. To make a
    victim of as if by slaying."  Id. at 1428.

Case adapted from the Electronic Fronteir Foundation
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