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Navigating the Intersection of Free Speech and University Bias Response Teams

College and university campuses have been important incubators for how social justice awareness, ideas, and differing viewpoints are manifest. Over the last decade, institutions have been challenged to be more aware and proactive about engaging social justice issues. Disenfranchised groups continue to share their frustrations with being silenced when they disclose their experiences with bigotry, discrimination, and hate-filled speech and behaviors that are occurring on- and off-campus. They have challenged colleges and universities to do better through protest mechanisms like campus sit-ins, marches, and demand letters.

In response, institutions are creating strategic plans and priorities focused on diversity, equity, and inclusion as part of their efforts to become more inclusive. These plans often include the development of specialized groups and task forces, and the creation of a Bias Response Team has become a common approach. This team typically is charged with addressing biased conduct, and in some cases, biased speech. Subsequently, institutions have been criticized for violating individuals’ free speech rights under the First Amendment and the institution’s own stated commitment to “free expression.” The conundrum of balancing First Amendment rights with creating inclusive campuses is now at the forefront, as many Bias Response Teams have become the subject of lawsuits related to over-reach and trampling free speech rights.

In Speech First, 939 F.3d at 756 (2019), the Sixth Circuit analyzed whether the University of Michigan’s Bias Response Team created a culture of silencing speech, otherwise known as an “objective chill”, by virtue of the scope of its work. Under the First Amendment, mere “allegations of a subjective chill are not an adequate substitute for a claim of specific present objective harm or a threat of a specific harm.”[1]

In plain language, it’s not enough that speech might speculatively be chilled. A plaintiff must allege that real harm occurred or is imminent. Ultimately the court ruled in favor of the University citing no indication that Michigan’s Bias Response Team imposed sanctions or exercised any power over any student’s speech. Therefore, the Bias Response Team posed no real or objective threat of harm to the First Amendment rights of students. Thus, the team is working as it was intended to by increasing efforts toward tolerance, inclusion, and civility without a policing, punitive, or disciplinary function.

Another interesting takeaway from this case is the Sixth Circuit’s agreement that colleges and universities should be able to address speech that may offend or hurt others and can do so remedially and educationally without breaching the First Amendment. This demonstrates that institutions can constructively address bias without offending free speech, with care taken to precisely walk the tightrope as Michigan showed, to avoid what could be a slippery slope toward overreach and overbreadth.

Some recommendations that can assist in campus efforts include:

  • Establish safe and supportive resources for students.

  • Know the scope and limitations of the First Amendment.

  • Understand that biased language or behaviors may not automatically create a hostile or discriminatory environment.

  • Focus on whether the speech in question created a hostile or discriminatory environment in accordance with your non-discrimination policy, and make referrals accordingly.

  • Establish a mechanism for reporting conduct that potentially violates campus policy and consistently addresses such conduct in an impartial, unbiased way.

  • If you create a Bias Response Team, it should not be the vehicle for investigating and adjudicating conduct that potentially constitutes policy violations or unlawful behaviors.

  • If establishing a Bias Response Team, clearly articulate the mission of the Team in relation to institutional values.

  • Bias Response Team interventions are safer from legal challenge when they focus on supporting those impacted and on community remedies and healing, rather than on chastising or policing those who act with intolerance, exclusion, or bias.

  • Hot-button topics like microaggressions and lists of words to avoid may mire a Bias Response Team in reaction and defensiveness, rather than a focus on helping the community to demonstrate inclusive acts and remove barriers to access. We’re not suggesting these topics be avoided, but a heavy-handed approach will just provoke backlash.

  • Publish the protocol to be followed by the Bias Team and educate the campus on its function and how to contact the team.

  • Provide training for conduct officers on the intersection of constitutional protections with institutional policies.

Censoring or disciplining speech that is unpopular will never be the solution to creating inclusive campuses or mitigating biased speech. When hate and exclusion become actions, rather than thoughts or speech, referrals can and should be made to appropriate offices that have disciplinary jurisdiction. Colleges and universities aren’t prohibited from addressing speech that is offensive or counterproductive to your institution’s mission and goals, and doing so carefully may be a prerequisite to achieving the inclusive campus culture many of our stakeholders are encouraging and demanding.

For in-depth training on how bias can impact decision-making at your institution, check out ATIXA’s Title IX Coordinator Five: Bias and Cultural Competencies certification course.

[1] Clapper v. Amnesty Int’l USA, 568 U.S. 398, 418, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) quoting Laird, 408 U.S. at 13, 92 S.Ct. 2318.

TNG has developed comprehensive, proprietary audit and assessment tools for free speech and first amendment rights at your institution. Click here to learn more, and check out this blog post for further reading on the topic.

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