Colleges and universities have long maintained unconstitutional speech codes that impermissibly prohibit speech or expression that offends others—particularly when it offends others because it allegedly conveys some sort of prejudice on the part of the speaker. Now, in addition to these speech codes, it is becoming increasingly commonplace for schools to have a complex set of protocols to address these so-called "bias incidents," which are often defined to include such minor acts as offensive jokes or messages written on dormitory residents’ whiteboards.
The appearance of "Hillary is a foxy lesbian" on a student’s whiteboard during the Democratic primary season appears to have been treated as just such a "bias incident" at Harvey Mudd College in California, despite the fact that it is protected speech and would not even be actionable according to Harvey Mudd’s official bias-incident protocol.
These bias-incident protocols are frequently written in language more appropriate for responding to natural disasters or terrorist acts than tacky references to presidential hopefuls. For example:
- The University of Chicago has a "Bias Response Team" and has promised to develop an "Incident Response System" to better address incidents of bias on campus. Examples of such bias listed on the university’s website include "A message on your whiteboard perceived as derogatory"; "In a verbal exchange with your roommate over keeping the apartment clean, the roommate calls you different names"; and "A neighbor complains about a noise disturbance in a derogatory manner."
- The University of Minnesota-Crookston has a "Campus Bias Incident Response Team" to deal with "Expressions of disrespectful bias, hate, harassment or hostility against an individual, group or their property because of the individual or group’s actual or perceived race, color, creed, religion, national origin, gender, gender identification, age, marital status, disability, public assistance status, veteran status and/or sexual orientation." Such expressions constitute bias incidents if they "could potentially cause alarm, anger, fear, or resentment in others"—"even when presented as a joke."
- At the Claremont Colleges in California, a bias incident at any one of the five colleges (including, as discussed above, "Hillary is a foxy lesbian") results in an e-mail from administrators about the incident sent to all students at all five of the colleges.
- Before FIRE got involved, the University of Delaware maintained "Residence Life Escalation Procedures" that required "immediate notification—day or night" of "[a]ny instance that is perceived by those involved as being racist, sexist, anti-Semitic, homophobic, or otherwise oppressive." By contrast, the same protocol required only "next day notification" in the event of "fights," "major vandalism," or "thefts." The revised and renamed "Residence Life Reporting Protocol" is somewhat improved, but it still assigns the reporting of bias incidents a higher priority than that of fights, vandalism, and thefts.
The list goes on—a Google search of the .edu domain for the phrase "Bias Response Team" brings up about 775 results, finding results at many schools nationwide. It is clear from the complexity of these protocols and the dramatic language used to describe them that universities—many of them public—are expending significant resources to deal with what is in many cases constitutionally protected speech. It is time for students, parents, and taxpayers across the country to demand some accountability.