ACLU: Constitutional concerns remain after revision of University of Michigan trespass policy
Changes to the University of Michigan trespass policy, announced today, haven’t fully satisfied the American Civil Liberties Union of Michigan, which says there are lingering concerns about the policy’s constitutionality. Wednesday, U-M announced that it is will cut the length of time its police force can bar individuals from the public campus from life to one year, effective July 1. But the university’s police chief will have the option to renew each ban indefinitely after one year, with the indefinite ban reviewed annually.
While applauding the school’s overall effort to narrow its policy, the ACLU says the revised policy still lacks due process and may be used to chill free speech since bans will still be lifted or modified at the discretion of the police chief alone.
The University of Michigan announced it has revised its trespass policy after civil rights groups raised questions about its constitutionality. The ACLU of Michigan says concerns about due process remain because the campus police chief alone can lift or modify a ban.
Angela Cesere | AnnArbor.com
Individuals banned because they are deemed threatening to the university are not typically allowed to speak at public Board of Regents meetings, Suellyn Scarnecchia, U-M vice president and general counsel, said at the press conference announcing the changes.
“When it comes to potentially depriving people from speaking out at the state’s flagship university, we thought that an appeal should be to an independent body and not to the police,” said Michael Steinberg, legal director of the ACLU of Michigan. Steinberg said his office worked with U-M on changes to the policy.
Scarnecchia said an individual who disagrees with the interim chief’s ruling can appeal to U-M administrators.
The revised policy also requires the university to specify in writing the reason for the ban, something it did not do under the policy that has been in place for a decade. Under that policy, 2,000 people have been banned from the campus. All those cases will be reviewed, U-M officials said at a press conference Wednesday in Ann Arbor.
U-M had months of meetings on all three of its campuses and considered community input in making the changes, Scarnecchia said Wednesday.
University of Michigan, Eastern Michigan University campus trespass policies
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“The policy reflects the values of our community in a more robust way because it’s more transparent and detailed,” she said, adding she hopes the new policy provides “a good balance between fairness to the individual and the safety of the campus community.”
The campus trespass policy has been used to bar some of the university’s own students, staff and alumni in the last decade, months of AnnArbor.com reports have shown.
In November, the ACLU of Michigan threatened to sue U-M after an Oct. 24 report by AnnArbor.com detailed the university's use of the policy to banish then-state Assistant Attorney General Andrew Shirvell and others from the 3,300-acre U-M campus.
Shirvell, a Michigan alumnus, had for months protested what he deemed the “radical homosexual agenda” of Chris Armstrong, the school’s openly gay student body president. Among his actions was a one-man, late-night protest on the sidewalk outside of the student’s off-campus home in Ann Arbor. Campus police initially banned Shirvell for life, but modified the ban to keep him away from the student on campus. Armstrong has since graduated, but the ban remains in place.
Other changes to the policy announced Wednesday include a review by a supervisor of trespass warnings issued at the end of each officer’s shift. The supervisor may recommend the warning be lifted or modified at that time. Also, appeals must be heard within 30 days of the request.
The changes also expand officers’ powers to ban individuals from all three campuses - Ann Arbor, Flint and Dearborn - at once.
Scarnecchia said Wednesday the change will keep potentially threatening individuals out of regents meetings on all three campuses. If an individual is dangerous on one campus, he or she is dangerous on all three, she said.
That was an area of concern for Steinberg.
“It should not be used as a means to prevent individuals from speaking during the public comment time of meetings,” he said.
Among people banned under the old policy were protesters like Yousef Rabhi, a Washtenaw County commissioner. As a U-M student in 2007, Rabhi was barred from the Fleming Administration Building for life after protesting in President Mary Sue Coleman's office against the use of sweatshop labor in the manufacturing of U-M apparel. Rabhi appealed and managed to get the ban lifted this spring.
Not every case involved free speech.
Stories gathered by AnnArbor.com show a wide application of the lifelong banishments. Among them, was a lifelong ban issued to an Indiana doctor and Michigan alumnus who said he was banned from campus after he got into a shouting match at a Michigan football game.
The ACLU could still bring legal action if the ban isn’t applied in a constitutional way, Steinberg said.
“We’re going to be carefully monitoring how this policy is applied. If it’s applied in a way intended to prevent individuals from speaking at regents meetings, we’d be deeply disappointed. And would certainly see what remedies there were to address that problem.”
Juliana Keeping covers general assignment and health and the environment for AnnArbor.com. Reach her at julianakeeping@annarbor.com or 734-623-2528. Follow Juliana Keeping on Twitter
Comments
friend12
Thu, Jun 2, 2011 : 3:54 p.m.
I like the changes, but, without an appeals process that goes beyond the police chief and his boss, who are dependent on the university for employment, it is still a bad policy. The ACLU needs to take legal action to fix the process.
Bogie
Thu, Jun 2, 2011 : 12:17 a.m.
How absurd? There is not any addition of due process. 38 percent of this operation is supported by our taxes, and arrogance I see is unlimited.
Ricebrnr
Wed, Jun 1, 2011 : 10:34 p.m.
Now if only a "civil liberties" organization might look to other infringements on campus...
Ricebrnr
Fri, Jun 3, 2011 : 4:20 p.m.
"U of M's Deputy Police Chief summed up the problem, thusly: "We get a lot of people, of a criminal element, who come on our campus and prey on our students."" Yes, yes you do.
Roadman
Wed, Jun 1, 2011 : 10:22 p.m.
I believe the 2,000+ individuals who are on the trespass list should be removed forthwith since the procedure that put them on the list was constitutionally infirm and therefore void. One Michigan federal district court has stated, in a case against a college, that a person has a "property interest" in their own reputation that is protected by the Due Process Clause of the Fourteenth Amendment which bars a state from depriving a person of life, liberty, or property without due process of law. Liberty interests may also be implicated if a citizen is barred by the DPS from areas of the University that are otherwise open to the public. The Federal Civil Rights Act of 1871 is a legal mechanism for persons deprived of their constitutional rights to seek monetary damages and injuctive relief as possible remedies. It is possible that some of these "Trespass List"persons may have legal redress against the university for possible violations of thier rights. I wonder if a civil rights attorney is not researching for a possible class action proceeding against the university for possible civil rights abridgments?
trespass
Wed, Jun 1, 2011 : 9:53 p.m.
Penelope LANKHEIM, Appellant, v. FLORIDA ATLANTIC UNIVERSITY, BOARD OF TRUSTEES, Appellee. <a href="http://scholar.google.com/scholar_case?case=4964432619678387237&q=lankheim+v+florida+atlantic+university&hl=en&as_sdt=2,23" rel='nofollow'>http://scholar.google.com/scholar_case?case=4964432619678387237&q=lankheim+v+florida+atlantic+university&hl=en&as_sdt=2,23</a> Penelope Lankheim appeals a final summary judgment entered in favor of Florida Atlantic University, Board of Trustees (FAU) on her claim for injunctive relief, contending that a trespass order issued against her while she was enrolled in courses on FAU's campus denied her access to the campus without procedural due process. We agree and reverse for further proceedings.
Roadman
Thu, Jun 2, 2011 : 12:41 a.m.
That appears to be a legally sound ruling that incorporates long-standing Supreme Court authority, incuding the landmark Goss vs. Lopez decision applying the Due Process Clause to school suspensions.
trespass
Wed, Jun 1, 2011 : 9:49 p.m.
If the University thinks that someone is dangerous, what prevents them from getting a restraining order? Even if they use a trespass warning to temporarily ban them from campus, how can they justify maintaining a ban beyond a year without getting a restraining order. I think they know that they do not have sufficient evidence that these people are dangerous that would allow a court to give them a restraining order. Judge Easthope recently dismissed a case brought at the behest of the UM for trespassing by Robert Redmond. In his remarks from the bench Judge Easthope said that there needs to be a mechanism for judicial review of these trespass orders and it should not require someone to bring a civil suit against the University. I think he was probably speaking of a procedure such as a hearing for a restraining order. The new procedures do not call for any such judicial review.
Roadman
Wed, Jun 1, 2011 : 10:02 p.m.
Due process must be incorporated into the published procedures of the relevant governmental unit by statute, ordinance or administrative rule and not at the whim of a governmental officer - this has been the holding of Michigan courts for over one hundred years. "Judicial review" is not necessary to be inserted in the administrative hearing procedures to comport with the Due Process Clause as the citizen has that option already by filing suit in the court system to challenge arbitrary or capricious university action, however the university must provide due process to citizens by its own published procedures before it deprives the citizen of any rights.
trespass
Wed, Jun 1, 2011 : 9:41 p.m.
Linda Martinson was a nursing student until she received a trespass warning that prevented her from attending classes. John Anderson was an engineering student until he got a trespass warning in the middle of class one day. Was there a written complaint to DPS in either case? No? Was there a description of what they did to make anyone think they were dangerous? No! Did DPS speak to any witnesses? No! All that DPS had was a request from an administrator to read them a trespass warning and there is nothing in the new procedures that will prevent that from happening again. Who has gotten a trespass warning that has ever subsequently hurt anyone? I don't know of any cases. If all 2,000 individuals are supposedly dangerous but none have ever harmed anyone, the standard for declaring someone dangerous must be very low. Linda Martinson went to the Regents meeting last summer in Dearborn to speak about her case during public comments. She never threatened anyone either physically or in her speech but the University administration is so thin skinned that they now have to change the trespass policy so that the DPS can ban her from speaking on any campus.
Roadman
Wed, Jun 1, 2011 : 10:04 p.m.
The ACLU needs to test that procedural rubric in a court of law. At the very least, the newly promulgated procedures are highly questionable and a lawsuit to test their constitutionality would be non-frivolous.
Roadman
Wed, Jun 1, 2011 : 9:32 p.m.
Michael Steinberg not only correctly discerns constitutional issues with banning public commentary at U-M Regents meetings, but also I have seen the issue of Michigan Student Assembly meetings. During Michigan Student Assembly gatherings a majority of the speakers were non-students and a majority of the non-students were civil rights activists - the ones I personally saw were from By Any Means Necessary (a pro-affirmative action group) and various other persons involved in the Israel-Palestine issue, including the Boycott Israel Goods movement. Some persons spoke on mundane issues such as bicycle path safety or encouraging students to vote locally. The Michigan Student Assembly debated in 2009 on whether or not to bar non-UM-Card carrying persons from speaking at public commentary periods. The motivations of the assembly reps in supporting such a ban appeared to be the content of the civil rights activists, while others expressed appreciation of those activists interest in their forum. The first vote failed but a second vote passed on an amended version that barred those without a UM-Card from giving public commentary. I see First Amendment abridgment issues in the Michigan Student Assembly apparently trying to "weed out" civil rights activists from conveying protected political speech on frivolous pretextual grounds. All citizens should be able to address the Board of Regents or the Michigan Student Assembly during Public Commentary period.
bern
Thu, Jun 2, 2011 : 2:43 p.m.
I certainly agree that non UM card carrying persons have the right to address the Regents during Public Commentary, as the Regents represent the entire population of Michigan. However, the Student Assembly represents only the students, so I think non students can be legitimately barred from "public commentary" if desired by the Assembly.
bedrog
Thu, Jun 2, 2011 : 12:31 a.m.
If i suggest that you, 'trespass' , henbry herskovitz and blaine coleman "get a room" i'd probably be deleted... so i won't.
trespass
Wed, Jun 1, 2011 : 9:30 p.m.
In the recently settled case of Dr. Andrei Borisov the UM made an apology of sorts that said that the "the series of events and actions surrounding that transition were both unfortunate and unintended" and "more fully articulated procedures and expectations could have led to a more positive outcome". So what do the new procedures show about what the University has learned from that $550,000 lesson. The new procedures do not require any standard of proof that an individual is dangerous. Nothing in the new procedure prevents an officer from simply taking the word of a chairman or dean that the person is dangerous. There is no requirement for the officers to talk to witnesses or to ask for a written complaint to the DPS. They do not even have to ask what the subject did that the administrator thought was dangerous. That is what happened in Dr. Borisov's case. No written complaint. No description of his behavior. No witnesses. Just a Chairman who said she had "concerns". Police officers are supposed to protect the rights of all members of the community but with the University's hierachical system they just listen to their bosses and do what they are told and there is nothing in the new procedures that will change that.
Roadman
Wed, Jun 1, 2011 : 9:48 p.m.
The Due Process Clause of the Fourteenth Amendment requires standards being promulgated before rights may be taken away. In the 1973 case of Smyth vs. Lubbers a federal district court in Michigan ruled that a disciplinary process was constitutionally infirm where a student was accused by a university with a drug possession violation and there was no burden of proof enunciated in the college's disciplinary procedures to govern the hearing. Possible burdens of proof in a quasi-judicial hearing include substantial evidence, preponderance, clear and convincing proof or guilt beyond reasonable doubt. An applicable burden of proof that is incorporated into the published procedure is a must. A detailed hearing procedure must also be incorporated to satisfy the Due Process Clause.
Roadman
Wed, Jun 1, 2011 : 9:04 p.m.
I have serious reservations about the new procedure. The Michigan Supreme Court in the Crampton vs. Secretary of State held that it is a violation of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution to have a law enforcement officer sit in an adjudicative capacity where legal violations are alleged since the probability of actual bias is too high to be constitutionally tolerated; the law enforcement officer is allied and is identified with the power of the state in enforcing criminal violations and his role is repugnant to the position of a neutral and detached judicial officer - even though, the court stressed, that the police official as such may hold an honorable position. Clearly a trespass notice emanates from some sort of alleged illegal conduct perceived by the L.E.O.; a neutral and detached quasi-judicial official is needed to feret out unmeritorious charges and the DPS chief, as an L.E.O., does not fit the bill. Also, to the extent a person is banned before any hearing occurs, I question the constitutionality of that absent exigent circumstances that would warrant a person being barred from the property of U-M as an imminent danger. There are a number of U.S. Supreme Court decisions such as Mathews vs. Eldridge and Logan vs. Zimmerman Brush Co. which define the contours of procedural due process that must be given before the government can take away or suspend one's rights. I have an issue if a pimply-faced police cadet can approach me and ban me upon his own whim from U-M property absent a pre-deprivation hearing before a neutral hearing officer. I have seen instances where campus police have approached faculty members or students with "an attitude" and a hubbub ensued; there are such abuses. The Shirvell case is an example where the AAPD gave a First Amendment "thumbs up" to Shirvell and the D.P.S. served its trespass notice in an overzelous manner. I applaud the ACLU in its continued monitoring of this sit
Juliana Keeping
Wed, Jun 1, 2011 : 8:58 p.m.
I have added pdf documents of old and new trespass policies for U-M, as well as EMU's policy for comparison, to an info box about half way through the text.
Rick Fitzgerald
Wed, Jun 1, 2011 : 8:50 p.m.
To read the revised policy for yourself, please go to this website: <a href="http://www.vpcomm.umich.edu/pa/key/Trespass.html" rel='nofollow'>http://www.vpcomm.umich.edu/pa/key/Trespass.html</a>