Under Pressure, UNLV Scraps Proposed Bias Incident Policy

By on April 29, 2009

In a victory for freedom of speech and conscience on campus, the chancellor of the University of Nevada system has ordered UNLV to rewrite a proposed bias incident policy that drew the ire of free speech activists, including FIRE and the ACLU of Nevada. According to an article in the Las Vegas Sun,

Chancellor Jim Rogers, who read the policy this morning for the first time, said, "My initial reaction is that I’m very, very uncomfortable with it. I think it is far too restrictive. I think it really will impede freedom of speech."

"The chancellor’s office would never support a policy that is a campus policy that impedes anybody’s right of free speech," Rogers said.

Rogers said he would ask UNLV to have its lawyers and law professors who understand the First Amendment to review the draft policy.

The draft policy was vigorously opposed by the ACLU of Nevada (with which FIRE worked closely, along with student activists, to dismantle an unconstitutional free speech zone at the University of Nevada – Reno), which argued that the policy’s broad definition of "bias incidents" included constitutionally protected expression.

FIRE also publicly questioned UNLV’s policy. As Adam told the Las Vegas Review-Journal, "[Bias incident policies are] the new fad in higher education…. They have a chilling effect on free speech and prevent rational discussions on controversial issues. You’re going to be worried about being reported to the police if just one person takes offense to what you’re saying." Indeed, UNLV’s proposed policy provided that the campus police would be dispatched to the scene of any alleged bias incident, a drastic measure that would seriously chill free speech on UNLV’s campus, particularly since the policy defined "bias incidents" in a vague manner that could easily encompass protected speech. The proposed definition banned any

verbal, written, or physical acts of intimidation, coercion, interference, frivolous claims, discrimination, and sexual or other harassment motivated, in whole or in part, by bias based on actual or perceived race, ethnicity, color, religion, creed, sex (including gender identity or expression, or a pregnancy related condition), sexual orientation, national origin, military status or military obligations, disability (including veterans with service-connected disabilities), age, marital status, physical appearance, political affiliation, or on the basis of exercise of rights secured by the First Amendment of the United States Constitution.

"Interference" is probably the most vague of these terms, and the policy did not provide any further explanation as to its meaning, leaving the door wide open for bias incident allegations based solely on protected speech. And while the policy made a few salutory nods to free speech, it also asked the UNLV community to accept certain politicized assumptions about the nature of free speech on campus:

[T]his policy asks us to acknowledge that while the legal construct of freedom extends equally to everyone, in practice it is clear that some members of our campus, as well as of our larger society, are afforded greater latitude to, in fact, freely express themselves than are others. This latitude derives, in varied measure, from an individual’s formal power within the University, as well as from their membership in, and/or special affiliation with, particular groups in the larger society that have historically had greater access to full participation in democracy than others. In acknowledging this, we ask that all members of the University community make a constant effort to recognize the profound complexities associated with the actual realization of free expression for members of our community who are the least institutionally empowered by their roles and/or functions on campus and/or because of their actual or perceived race, ethnicity, color, religion, creed, sex (including gender identity or expression, or a pregnancy related condition), sexual orientation, national origin, military status or military obligations, disability (including veterans with service-connected disabilities), age, marital status, physical appearance, political affiliation, or on the basis of exercise of rights secured by the First Amendment of the United States Constitution.

While a public university may make a statement about what ideals it values, the inclusion of this extensive discussion in a policy already fraught with constitutional problems raises serious additional concerns over the extent to which the university would fairly enforce the policy.  It seems to be committing UNLV wholesale to the "repressive tolerance" ideas of Herbert Marcuse, and other early proponents of campus speech codes.

Thankfully, those concerned with free speech on campus won out and the proposed policy will not take effect. Instead, the ACLU of Nevada has offered to help UNLV draft a constitutional policy, and according to the Sun, "[UNLV] President David Ashley said the university will take the organization’s input." FIRE will be keeping a close eye on the situation and will update Torch readers when a new proposed policy is available.

Schools: University of Nevada, Las Vegas