ACLU of Michigan threatens lawsuit against University of Michigan over trespass policy
The legal director of the American Civil Liberties Union of Michigan is threatening to sue the University of Michigan over its use of a trespass policy, saying it suppresses protected speech and may be unconstitutional.
Civil rights attorneys first raised questions about the constitutionality of the trespass policy in an Oct. 24 report by AnnArbor.com that detailed the university's use of the policy to banish then-state Assistant Attorney General Andrew Shirvell and others from the U-M campus.
“Now that a light has been shined on the deficient process for banning individuals from campus for life, our hope is that the university will take a second look at this problem, and take action, without the need for a lawsuit,” said Michael J. Steinberg, legal director for the ACLU of Michigan.
Chris Armstrong, the first openly gay student body president at U-M, requested a personal protection order against Shirvell on Sept. 13. Shirvell, who has since been fired from his state job, engaged in a months-long campaign against Armstrong over what Shirvell called his "radical homosexual agenda."
On Sept. 14, campus police issued Shirvell, a U-M alumnus, a trespass warning that banned him from campus. Police modified it Nov. 3, but Shirvell is still banned from areas where Armstrong is expected to be on campus, except sporting events.
Each of U-M’s 56 sworn police officers have discretion to read or mail trespass warnings. The policy permanently bans a person from campus and various other properties throughout the state and nation. Police also can ban individuals from smaller areas like a building floor, a whole building or a section of campus.
Only the director of public safety can modify the warning.
Individuals also can bring grievances to an elected, independent police oversight committee of U-M students, faculty and staff members, but the committee’s powers are advisory only.
Steinberg said he believes the policy puts constitutionally guaranteed rights including free speech and due process at risk. He said U-M should revise the policy to avoid a lawsuit from the ACLU.
“What is needed is notice of the reasons for being banished and an opportunity to be heard before a neutral fact finder that is not the police,” Steinberg said.
U-M's student ACLU chapter sent a letter Nov. 11 to U-M President Mary Sue Coleman and Public Safety Director Ken Magee. In it, the group provided specific ways it would like U-M and campus police to amend the policy, including an independent appeals process and language that protects free speech and assembly rights.
“These fundamental rights deserve special protection in any community and especially our dynamic university community that is built on the free exchange of ideas,” the letter signed by U-M students Mallory Jones and Bennett Stein states.
Other civil rights experts also questioned the use of the policy, which is based on state law and also is used at other colleges and universities around the state.
“I’m not saying they’re acting in bad faith, but when they draft these policies, they’re not thinking of the free speech concerns and the possibility that someone could be excluded because of his views,” said Robert Sedler, a civil rights attorney and professor at Wayne State University.
Eastern Michigan University’s trespass policy is similar, except the warning expires after one year. It’s also problematic, Steinberg said.
“By limiting the banishment to a year, instead of a lifetime, the EMU policy is less egregious,” Steinberg said. “But it does contain many of the same problems as U-M’s policy."
U-M police officials maintain the warnings are always issued in good faith. They also point out they have an appeals process even though one is not required by state statute.
“If they are stealing, if they are threatening people or assaulting people, then we read them the trespass to keep them from coming back on campus and committing crimes on campus and victimizing our community,” U-M Deputy Police Chief Joe Piersante said.
Roughly 3,300 individuals are banned from U-M's Ann Arbor campus in whole or in part, and around 80 people are prohibited from EMU's campus.
Those who violate a trespass warning can face misdemeanor charges punishable by a maximum $250 fine and/or 30 days in jail, said Konrad Siller, an assistant prosecuting attorney for Washtenaw County. U-M police said they interview rather than arrest most trespassers they find on campus.
Steinberg said the ACLU received three calls after the AnnArbor.com report from individuals who felt U-M used the trespass policy to suppress protected speech. He said it shouldn’t be applied in the same way a business owner or private institution might use it.
“The University of Michigan is not a private institution,” Steinberg said. “There are certain parts of the that are generally open to the public for the free expression of ideas. The University of Michigan cannot use the trespass statute as if it was a private entity to bar individuals from participating in the public life and in the public exchange of ideas in places like the Diag."
U-M spokesman Rick Fitzgerald said the school received the letter from U-M's student ACLU group and it's being reviewed, but he didn't directly answer a question about whether the policy could be revised.
“(The trespass policy) will continue to be an option, as it always has been, to Department of Public Safety officers at the University of Michigan," he said, noting the trespass warning “Is a tool available to police officers throughout the state.”
Steinberg declined to say whether the ACLU has been working with Shirvell. Sedler said he thinks Shirvell has a good case.
“He certainly has a plausible claim that the policy of the violates the First Amendment because it can be applied to exclude someone from the campus for the person’s views, and it doesn’t contain narrow, objective and definite standards,” Sedler said.