breif-Doe vs. Michigan

breif-Doe vs. Michigan - JOHN DOE, Plaintiff, v. UNIVERSITY...

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JOHN DOE, Plaintiff, v. UNIVERSITY OF MICHIGAN, Defendant No. 89-71683 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOU-THERN DIVISION 721 F. Supp. 852 ; 1989 U.S. Dist. LEXIS 11226 September 22, 1989, Decided SUBSEQUENT HISTORY: [**1] As Amended October 3, 1989. Second Amendment October 10, 1989. Plaintiff’s motion asks that policy of defendant university be declared unconstitutional and enjoined on the grounds of vagueness and overbreadth. JUDGES: Avern Cohn, United States District Judge. OPINION BY: AVERN COHN, UNITED STATES DISTRICT JUDGE. Taking 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 exer- ted 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 pos- sible and, again, extend the boundary of the realm of protected speech into the hinter- lands of speech in order to minimize the potential harm from judicial miscalculation and misdeeds. L. Bollinger, The Tolerant Society 78 (1986). II. FACTS GENERALLY According to the University, in the last three years incidents of racism and racial harassment ap- peared to become increasingly frequent at the University. For example, on January 27, 1987, un- known 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 ra- dio station allowed racist jokes to be broadcast. At a demonstration protesting these incidents, a Ku
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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 isol- ated and purposeless acts. At the April 14, 1988 Regents meeting, [a ] Policy [prohibiting discriminatory harassment] was unanimously adopted. It became effective on May 31, 1988 and was set to expire on December 31, 1989 unless reenacted. III. THE UNIVERSITY OF MICHIGAN POLICY ON DISCRIMINATION AND DISCRIMIN- ATORY HARASSMENT 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 vari- ously described public parts of the campus. Only an act of physical violence or destruction of prop- erty 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 stu-
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breif-Doe vs. Michigan - JOHN DOE, Plaintiff, v. UNIVERSITY...

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