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The Trump Administration's Free Speech Fight With the University of Michigan Is About Identity, Not Expression

It seems the Department of Justice is, once again, setting its sights on free speech on college campuses.
Students walk across the University of Michigan campus in Ann Arbor, Michigan.

Students walk across the University of Michigan campus in Ann Arbor, Michigan.

Earlier this week, the Department of Justice (DOJ) filed a statement of interest in the case of Speech First, Inc., v. Schlissel. The plaintiffs in Schlissel claim the University of Michigan's "Bias Response Team"—established by the university to fight back against "harassment" and "bullying"—effectively violates their First Amendment rights.

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.

Indeed, the DOJ's interest in the case is likely more symbolic than anything else: Supporting Trump isn't just free speech, but protected speech in what Trump would say is an America dominated by liberal elites and a mainstream media out to persecute his voters. The Equal Protection Clause of the Fourteenth Amendment, while among the most litigated in the Constitution, has applied to historically marginalized classes since its ratification in 1888 to protect freed slaves following the American Civil War. In fact, the University of Michigan was subject to two 2003 Supreme Court cases (Gratz v. Bollinger and Grutter v. Bollinger) that effectively upheld affirmative action measures based on face, implicitly affirming the university's commitment to protected classes. Why, the DOJ appears to ask, should those protections not cut both ways when it comes to speech?

The Trump administration has certainly attempted to carve protected classes out of historically uncontested social strata. The DOJ under Trump has sought to establish "police officer" as a protected class through hate crimes measures. In February of 2017, Trump signed an executive order directing his administration to "define new federal crimes" for violence against law enforcement officers; just over a year later, a majority of House lawmakers voted in support of the Protect and Serve Act of 2018. That bill would make "knowingly caus[ing] serious bodily injury to a law enforcement officer, or attempts to do so" a federal crime on par with hate crimes. Those who felt like targets during the Obama years—police officers after the Ferguson shooting and conservative whites in general—are finally getting even and then some. In Trumpian logic, wearing a "Make America Great Again" hat is tantamount to wearing a target on your back.

This subtle implication running through the DOJ's brief likely won't translate into law. The American Civil Liberties Union's standard for Equal Protection Clause violations depends on the rational basis test: Does the state have a "rational basis" for either passing a law or "making some difference between the two classes or groups of people that makes it reasonable to treat them differently?" To that end, does wearing a Trump hat or exercising pro-Trump speech rise to that protected class? Does speech constitute identity in that strict sense? Probably not, if only for one simple reason: The Trump hat can be removed, as much as it may constitute the equivalent of a hijab or turban for some Trump supporters. In all historical senses, "whiteness" is not a protected class in America.

But isn't it in Trump's America? After all, Trump has banked on white terror both psychologically and electorally, so far that chaos his reign has wrought on American institutions has sought to effectively revert the country back to its tribal instincts. And this is the secret meaning of the DOJ statement, the dog-whistle to a country fixated on the culture wars.