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Executive Summary

Over the past several years, the Foundation for Individual Rights in Education (FIRE) has received an increasing number of reports that colleges and universities are inviting students to anonymously report offensive, yet constitutionally protected, speech to administrators and law enforcement through so-called “Bias Response Teams.” These teams monitor and investigate student and faculty speech, directing the attention of law enforcement and student conduct administrators towards the expression of students and faculty members.

To better understand this phenomenon, FIRE gathered data throughout 2016 on every bias reporting system we could locate. FIRE sought to determine who reviews the reports, what categories of bias they are charged with addressing, and whether the institution acknowledges that the system generates a tension with free speech and academic freedom.

FIRE discovered and surveyed 231 Bias Response Teams at public and private institutions during 2016. The expression of at least 2.84 million American students is subject to review by Bias Response Teams. While most students in higher education do not yet appear to be subject to bias reporting systems, we believe that the number of Bias Response Teams is growing rapidly.

The composition of Bias Response Teams is not always made public. About 28% did not reveal the names or rules of any team members. Of those whose membership FIRE could ascertain:

  • 42% report speech to members of law enforcement or campus security officers, even though the teams deliberately solicit reports of a wide variety of non-criminal speech and activity.
  • 12% of teams include at least one administrator dedicated to media relations, suggesting that part of the purpose of such teams is to deter and respond to controversies that might embarrass the institution.
  • Fewer than a third of teams included faculty members, whose absence diminishes the likelihood that the team will have a meaningful understanding of academic freedom.

Teams tend to cast a wide net when defining “bias.” Almost all use categories widely found in discrimination statutes (race, sex, sexual orientation, etc.), while others investigate bias against obscure categories, such as “smoker status,” “shape,” and “intellectual perspective.” A significant minority include political affiliation or speech as a potential bias, inviting reports of and investigations into political speech by law enforcement and student conduct administrators.

In responding to reports regarding this wide array of protected expression, administrators are frequently armed with vague or overly broad rules granting them leeway to impose sanctions for speech they dislike. In December 2016, FIRE found that some 92.4% of the 449 schools surveyed for our annual speech code report maintain policies that either clearly and substantially restrict speech, or can otherwise be interpreted to punish protected speech. At such schools, a Bias Response Team’s practice of broadly defining and identifying “bias” may expose a wide range of protected speech to punishment. Even where schools purport only to provide “education” to the offending speaker, instead of formal punitive sanctions (such as suspension or expulsion), this response is often undertaken by student conduct administrators, not educators, and more closely resembles a reprimand.

There is an unavoidable tension between promoting free speech and academic freedom and working to combat the presence of “bias” (however defined) on campus. Yet only 84 (50.6%) of the teams surveyed acknowledged a tension with freedom of speech, freedom of inquiry, or academic freedom on their websites or in their policies.

FIRE also used public records requests to discover the reports made at some institutions, how the schools responded to those reports, and the teams’ policies and training. Many institutions complied with these requests. Others stonewalled, hid records, deleted websites, or demanded thousands of dollars to view records, claiming that knowing how Bias Response Teams operate is not in the public interest.

Further, how universities respond to bias reports may expose them to First Amendment lawsuits. Individual team members risk being held personally liable for violating constitutional rights in some circumstances. They may not even be aware of where the lines are drawn. FIRE found little evidence that Bias Response Teams are trained on First Amendment issues.

Bias Response Teams, when armed with open-ended definitions of “bias,” staffed by law enforcement and student conduct administrators, and left without training on freedom of expression, represent an emerging risk to free and open discourse on campus and in the classroom. Bias Response Teams create—indeed, they are intended to create—a chilling effect on campus expression. Even if a Bias Response Team does not have the power to take punitive action, the prospect of an official investigation may make students and faculty more cautious about what opinions they dare to express.

Beyond First Amendment concerns, encouraging students and faculty to anonymously report one another to administrators for subversive or offensive views is illiberal, and antithetical to a campus open to the free exchange of ideas. While universities should certainly be listening to their students and offering resources to those who encounter meaningful difficulties in their lives on campus, the posture taken by many Bias Response Teams is all too likely to create profound risks to freedom of expression, freedom of association, and academic freedom on campus.

Methodology

what is a bias reporting system?

In order to distinguish bias reporting systems from other speech codes, and to identify systems that may not be explicitly identified as a “bias reporting” system,1 FIRE applied a three-part definition. Where it was unclear whether a particular element was met, we used our best judgment. Links to the websites of all Bias Response Teams are provided in Appendix B so that the reader may form his or her own opinion.

FIRE defines a bias reporting system as any system identified as such, or that provides:

  1. a formal or explicit process for or solicitation of
  2. reports from students, faculty, staff, or the community
  3. concerning offensive conduct or speech that is protected by the First Amendment or principles of expressive or academic freedom.

Under FIRE’s definition, a school policy or reporting system limited to criminal offenses involving hate or bias does not constitute a bias reporting system.

locating and observing bias reporting systems

FIRE relied on a number of methods to locate bias reporting systems, including mining schools’ websites for information, using tools to monitor websites for changes, and issuing public records requests to collect additional information.

We first gathered state-by-state lists of public and private institutions on Wikipedia, as well as in FIRE’s own Spotlight database,2 to identify leading institutions in the United States. We then reviewed each school’s website and Google presence, searching for references to bias reporting systems. To locate other systems, we searched for reporting forms provided by Maxient and other companies known to host reporting forms. The location process also utilized Google alerts and media reports concerning bias reporting systems.

Once the institutions were identified, FIRE monitored each Bias Response Team page for changes in text—a practice we will continue in order to observe whether, or how, institutions change their systems over time.3

FIRE also reviewed the public-facing websites of reporting systems to identify relevant policies, definitions, forms, and other information. We recorded the definitions of “bias” in both policies and reporting forms, which often differed from one another, to determine the categories of bias defined by each institution.

Finally, we utilized public records requests at some institutions to uncover the types of reports being made and how the Bias Response Teams acted in response to each submission.

a note about limitations

This survey documents how Bias Response Teams operate and who serves on them. Given the number of higher education institutions in the United States, this survey was not intended to identify the rate at which institutions have adopted such systems.

Findings

 

bias reporting systems are widespread

During the course of 2016, at least 231 Bias Response Teams were publicized on American university or college campuses. 143 are at public institutions and 88 are at private institutions.4 At least 2.84 million students are enrolled in these schools.

Of the 471 institutions catalogued in FIRE’s Spotlight database, 181 (or 38.4%) maintain bias reporting systems. The committees that administer these systems are known by a variety of names, usually a variation on “Bias Response Team.” Some schools do not provide an independent “team,” instead channeling reports directly to existing offices or departments, including law enforcement or security, human resources departments, or campus housing authorities.

casting a wide net: what categories of “bias” are reported?

immutable characteristics and other categories of bias

The most common categories of bias reports solicited5 come from federal and state laws governing educational and employment discrimination. Every system surveyed invites reports of bias concerning race or religion, and most invite reports concerning sex, sexual orientation, gender identity or expression, age, disability, and so on. Some are unusual, such as bias against “behavior” (Macalester College), which appears to define criticism of behavior of any kind as “bias.”

political and social beliefs

Some systems define “bias incidents” to include expressions of bias against political and social affiliations. 14% of institutions include “political affiliation” among their categories of bias. Still others include bias against similar categories such as “intellectual perspective” (University of Central Arkansas), “political expression” (Dartmouth), or “political belief” (University of Kentucky). It is critical to note that by soliciting reports of speech that is biased against political views, universities are expressly requesting that their students report one another to the authorities for expressing divergent political views.

definitions of “bias incidents” broadly encompass speech

Bias reporting systems raise free speech concerns because they solicit reports of legal, protected speech and expression in addition to unprotected conduct such as actionable discrimination or harassment. The definitions often explicitly state that students should report speech protected by the First Amendment.

Many policies include catch-all categories of bias—e.g., “other” biases. In such cases, the definition of a bias incident encompasses not only protected speech, but also any speech that offends anyone for any reason. The net effect is that broad definitions of “bias” invite reports of any offensive speech, whether or not it is tethered to a discernable form of bias, thereby inviting scrutiny of student activists, organizations, and faculty engaged in political advocacy, debate, or academic inquiry. For examples of reported political expression, see the Discussion section by clicking here.

who’s on a bias response team? often, law enforcement

FIRE was unable to determine the makeup of every Bias Response Team. Of the 167 teams whose composition FIRE could determine, almost half include law enforcement (“speech police,” in a quite literal sense) and more than half include what appear to be student conduct administrators. Only 27% include faculty members, reducing the likelihood that a Bias Response Team will have members likely to recognize issues of academic freedom. And 12% contain public relations administrators, raising the possibility that a team’s decisions, including about whether to seek discipline for those displaying “bias,” may be made on the basis of an institution’s desire to avoid public embarrassment. Both common sense and FIRE’s extensive experience suggest that public and donor relations can be significant factors driving universities’ decisions.

All institutions (166) Public (104) Private (62)
Law Enforcement6 42% (70) 41% (43) 43% (27)
Student Conduct7 63% (105) 56% (59) 74% (46)
Public or Media Relations 12% (21) 14% (15) 9.7% (6)
Faculty 27% (45) 24% (25) 32% (20)
Students 21% (35) 18% (19) 26% (16)

acknowledging a tension with freedom of expression and academic freedom, but providing little (if any) training

84 institutions (50.6%) acknowledged freedom of speech, freedom of inquiry, or academic freedom in the descriptions or policies of their Bias Response Teams. Of these, 50 are public and 34 are private.

However, despite professing a dedication to free expression and academic freedom, few schools provide meaningful training to Bias Response Teams on recognizing these issues. Public records requests issued to dozens of schools have revealed only one Bias Response Team, at Louisiana State University, that offered any substantial training whatsoever on First Amendment concerns.

Discussion

why do bias response teams exist?

University administrators receive many complaints about criminal conduct on campus. They also learn of students who encounter “offensive” but legally protected speech or expression.8 A proper response to these incidents would involve prompt, fair, and impartial discipline for instances of physical misconduct, true threats, and harassment, while fostering an environment in which offensive speech would be answered with more speech.

Campuses with Bias Response Teams have chosen to go further, often deploying administrators to conduct an “investigation” of the incident and, if the “respondent” is found “guilty,” summon them for a “hearing” or an “educational” discussion, which may more closely resemble a reprimand than an enlightening exchange of views.

Such procedures risk becoming tools not only for imposing some form of political or intellectual orthodoxy, but also for policing politeness or civility.9 They invite law-enforcement authorities and administrators, who are likely to be wary of expression that can cause conflict of any kind, to scrutinize activism, debate, and political speech regarding every ideology and viewpoint. Yet the essential elements of free discourse, whether on campus or off, require that people have right to offend or to cause conflict through speech.10

Other factors may also contribute to a university’s decision to implement a Bias Response Team, such as:

  • Inability to implement speech codes. FIRE has seen a continuous, nine-year decline in the maintenance of speech codes that prohibit speech11, and courts routinely strike down speech codes at public universities on First Amendment grounds.12 In fact, some bias reporting systems, such as Longwood University’s, have cited the unconstitutionality of speech codes as a reason for their existence.13
  • The low cost of expanding employment-based anti-discrimination systems. A university cannot function as a true “marketplace of ideas” if campus expression is as highly regulated as expression among employees in business corporations. Borrowing well-developed and widely available corporate procedures is a tempting shortcut. For as little as $8,600, schools can create reporting forms derived from existing systems used by employers to permit employees to report employment-based sexual harassment.14 But using the tools of corporate anti-discrimination systems—perhaps even those used internally among their own employees—to solicit bias reports from and about the larger campus community sets colleges on a collision course with free discourse.
  • Avoiding public controversy. By learning of events and disputes quickly, public and media relations administrators can attempt to frame the institution’s response in the media. At the University of New Mexico, for example, administrators pushed to release a statement “rather than waiting for the media to get ahold of” flyers criticizing UNM’s logo (which involves a conquistador) that were reported to the Bias Response Team.15 Some 12% of Bias Response Teams include media relations administrators.
  • Student demand. Certain student groups have called upon administrators to implement bias reporting systems.16 But this seems to be relatively rare: Of the various recent demands from students across the country, few have involved requests for reporting systems,17 and one institution’s audit suggested that students are unfamiliar with the term “bias incident.”18

Whatever their motivations, universities implementing Bias Response Teams have cast a wide net, inviting reports of any offensive speech, on virtually any topic, for any reason. The result is that speech on political and social subjects, which is likely (and may be intended) to offend, gets reported to law enforcement and student conduct administrators, and bias reporting systems serve to “alert administrators to specific individuals … who would benefit most from diversity inclusion training.”19 This institutionalizes surveillance of activists of all political persuasions, exposes universities (and their administrators) to the prospect of costly First Amendment claims, and encourages an illiberal culture of anonymously reporting students or faculty for subversive or offensive speech—on hundreds of campuses across the country.

bias response teams are found on hundreds of american college campuses

In early 2016, when Appalachian State University explored a proposal to create a Bias Response Team, administrators wanted to see what other schools were doing. They didn’t have to look far; one said she was “hard pressed to find a school without” a Bias Response Team.20 Boston College’s student government described them as “ubiquitous.”21

To a certain extent, FIRE found this to be true. According to publicly available records, there were at least 231 Bias Response Teams publicized by four-year or post-graduate institutions during 2016. Of these, 143 were at public institutions, all of which are bound by the First Amendment, while 88 were at private institutions, most of which advertise or commit to respecting students’ freedom of expression and freedom of academic inquiry in official policy. At a conservative estimate,22 at least 2.84 million American students are subject to often-anonymous reporting systems monitored by administrators and police officers.23 But while Bias Response Teams are in use at hundreds of institutions, and appear to be growing in number, it does not appear that they can yet be found on a majority of campuses.

The names and acronyms used for bias reporting systems vary from campus to campus. The University of Oregon’s team is currently known as the “Bias Education and Response Team,”24 and the University of North Carolina at Asheville’s team is the “Bias Incident Response Team.”25 While most team names appear to include some variation on “Bias Response Team,” some do not. Arizona State University previously hosted a “Campus Environment Team,”26 and Illinois State University currently utilizes an “Inclusive Community Response Team.”27 The University of Central Florida’s “Just Knights Response Team” reflects the name of its athletic teams.28 And some institutions do not have a separate team for bias reports, instead relying on existing offices or departments. Some direct reports to police departments,29 various deans30 or human resources offices,31 or housing authorities.32

To better understand these report-and-response systems, and to distinguish them from other types of speech codes, FIRE views “Bias Response Teams” as identified as such or generally adhering to three criteria:

  1. a formal or explicit process for or solicitation of
  2. reports from students, faculty, staff, or the community
  3. concerning offensive conduct or speech that is protected by the First Amendment or principles of expressive or academic freedom.33

These criteria are designed to include systems that invite reports of protected speech without specifically labeling it as “bias,” while distinguishing speech codes unaccompanied by formal or explicit policies for reporting such incidents.

casting a wide net for bias incidents

What constitutes a “bias incident” varies widely from campus to campus. As the University of West Florida puts it, defining the term “seem[s] like a murky ground to traverse.”34

Even the use of the term “bias incident” engenders debate and confusion. In a February 2015 audit of Colgate University’s bias reporting system, a campus committee reported that, although the sample size was small, no student was aware that they could file bias reports online, most had never heard the phrase “bias incident” before, and the majority had “incorrect interpretations” about its meaning.35

Broad applications of the term can diminish serious misconduct by equating political squabbles and caustic speech with violent criminal conduct. For example, The New York Times was widely and credibly criticized36 for an article37 noting that “[b]ias incidents on both sides have been reported” at the University of Michigan, with one student alleging38 that she had been “threatened with being lit on fire because she wore a hijab.” The article continued: “Other students were accused of being racist for supporting Mr. Trump … .”39

Such political criticism can hardly be placed under the same umbrella as true threats of violence. Yet this is precisely what many bias reporting systems do. Schools largely define bias incidents to encompass more than hate crimes or actionable conduct. Hate crimes—criminal conduct undertaken on the basis of a protected characteristic of the victim, which is not protected by the First Amendment40—are always bias incidents. “Bias incidents,” however, include speech or expressive conduct that is not necessarily criminal or in violation of applicable policy.

Take, for example, the University of Northern Iowa’s definition:41

A bias-related incident is any word or action directed toward an individual or group based upon actual or perceived identity characteristics or background of a group or person that is harmful or hurtful. Some bias-related incidents may be contrary to law or policy, while some may be speech protected by the First Amendment of the Constitution of the United States.

Western Washington University’s definition extends to “demonstrations” of bias, including “language, words, signs, symbols, threats, or actions that could potentially cause alarm, anger, or fear in others[.]”42 Moreover, the existence of a bias incident under the policy turns entirely on whether the complainant subjectively perceived the incident to be motivated by bias, rather than on the intent of the speaker.43

In targeting speech that may cause “alarm, anger, or fear,” or that might otherwise offend on the basis of a proscribed subject, universities expressly set their sights on constitutionally protected speech. All speech is presumptively protected by the First Amendment unless it falls within certain narrow exceptions carved out by the Supreme Court: incitement to immediate violence; so-called “fighting words”; harassment44; true threats and intimidation; obscenity; child pornography; and defamation. Speech is not unprotected simply because it is offensive,45 insulting,46 causes anger,47 or is viewed as prejudiced or as “hate speech.”48 If the speech in question does not fall within one of the listed exceptions, it most likely is protected speech.49

Most reporting systems are predicated on specific, enumerated characteristics. Of the systems identified by FIRE, 199 (or 86%) explicitly set forth these characteristics. Among them, the categories vary widely on different campuses. Each of these teams solicits reports about bias against race or religion, and all but one explicitly solicit reports about disability or sexual orientation.50 There is less agreement on more specific categories. For example, while 94.5% seek reports of bias based on national origin or nationality, only 14.1% explicitly seek reports of bias against immigration or citizenship status.

Some categories of “bias” are peculiar. For example, the University of Kentucky permits reports of bias against “smoker status,”51 perhaps as a result of borrowing language from a state law concerning employment discrimination against tobacco users.52

There is also significant divergence when it comes to reporting bias based on political affiliation, views, or conduct. Worryingly, 21% of public institutions seek out reports of bias on the basis of political affiliation, as opposed to 2.6% of private institutions. Among them, concerns regarding bias against political and social views vary:

Other systems invite reports of even broader ranges of criticism and discussion:

Some of these examples are likely the result of definitions borrowed from state employment discrimination statutes. Yet asking students to report one another for broadly defined bias against their voluntary political or social affiliation invites surveillance of and intrusion into political speech, subjecting it to the scrutiny of administrators and police.

examples of reported incidents: caught in a wide net, universities entangle themselves into refereeing political speech

It is not mere speculation that core political speech, academic discourse, and outspoken activists are likely to become the subjects of bias incident reports. FIRE used public records requests, reviewed similar requests by media outlets, and examined the sparse public disclosures by Bias Response Teams to discern what gets reported.

The reports we reviewed, which often fail to disclose what action (if any) was undertaken in response, span the ideological spectrum:

To be sure, Bias Response Teams also field a number of reports of conduct not protected by the First Amendment. For example, many reports involve vandalism, assault, or true threats motivated by bias. These, however, are acts that may be reported to existing resources, such as student conduct administrators or police departments. Schools could also invite students to report unlawful conduct using online reporting systems, or even to a team set aside to address unlawful conduct motivated by bias. But schools are implementing broad definitions of “bias” to expressly invite reports of protected speech, including a broad range of political speech, and they often do so without any training on First Amendment rights.

who scrutinizes the speech? police, conduct administrators, and media relations staff

Having cast a wide net, who reviews the reported speech? Bias Response Teams are often populated by police and student conduct administrators. They also include, to a lesser extent, media relations administrators, faculty members, and students.

Some institutions, including the University of West Florida98 and Montana State University,99 embed police or security officials within their Bias Response Teams. Others, such as the University of Montana100 and DePaul University,101 direct reports straight to police or security officers.

Some 42% of Bias Response Teams include police or security officials. By including police and student conduct administrators on their Bias Response Teams, schools send a message to students that undercuts claims of respect for freedom of expression: If you say something that offends someone, you may (or in some cases will) be investigated by police. Their inclusion can also lead universities to use police to investigate offensive speech or anonymous speakers.102 For example, at Evergreen State College, administrators responded to anonymous flyers critical of, among other things, Black Lives Matter, by emailing students:103

The College wants to identify the individual(s) engaged in posting and distributing these flyers. If you have any information about who may be doing this, it is critical that you contact Police Services or provide information anonymously using the online incident report form.

Including student conduct administrators, as do approximately 63% of Bias Response Teams, also sends a chilling message. Students summoned to meet with a member of the office of the dean of students are likely to view the meeting not as educational, but as punitive. Even when the intention is not punitive, administrators are likely to approach “offensive” speech or sharp disagreement from a conflict-resolution perspective. This approach may conflict with a student speaker’s purpose; many use speech to heighten or clarify conflict and disagreement in order to further their message.

Including media relations administrators is also concerning, because it suggests that a school’s decision to respond to offensive speech may be driven by the potential impact to the school’s reputation. Where this is the case, it undermines the notion implicitly underlying Bias Response Teams that universities are primarily concerned with providing a safe environment.

UNMAnd there is reason to be concerned that universities’ responses may be driven by a desire to manage the institutions’ reputation at the expense of protecting freedom of expression. At the University of New Mexico, administrators wanted to rush to release a statement from the Office of the President “rather than waiting for the media to get ahold of” flyers critical of the university’s logo, which included conquistadors but not Native Americans.104 These flyers were perceived by the Bias Response Team as a threat to Native Americans because the mock logo incorporated skulls and bones underneath the feet of conquistadors—a rather obvious criticism of the treatment of Native Americans in the New Mexico area. Ultimately, it was faculty members on the Diversity Council who placed the flyers in context. Without their intervention, it is possible that administrators who erroneously viewed the flyers as threatening could have continued their investigation and initiated charges.

In other words, the lack of faculty or student membership may deprive Bias Response Teams of valuable insight into instances of purportedly offensive speech, as well as principles of academic freedom. That may explain why the University of Northern Colorado’s Bias Response Team warned at least one professor that he could face lengthy, intrusive investigations for permitting students to debate controversial issues in class.105

bias response teams may expose universities to first amendment lawsuits

To date, FIRE is aware of no legal challenges to a bias reporting system. It’s unclear whether a legal challenge could be mounted by a student or faculty member based on the mere existence of such a system. However, each time a Bias Response Team embarks upon an investigation or intervention with the reported person, it risks exposing the institution and its administrators to claims under the First Amendment.

That a university provides a mechanism for community members to share information concerning offensive speech may not, alone, amount to a justiciable First Amendment controversy. In Laird v. Tatum (1972), the Supreme Court of the United States held that the “mere existence” of broad, intelligence-gathering programs does not, “without more,” impermissibly chill speech.106

The First Amendment, however, does not simply restrict the government from expressly penalizing or prohibiting speech. It also prohibits “adverse government action against an individual because of First Amendment freedoms.”107 When universities depart from the Laird baseline by mounting investigations or interventions with offending speakers, they expose themselves to the possibility of a First Amendment retaliation claim. This exposure isn’t limited to legal action against the university; because many First Amendment principles are so well established under the law, members of a Bias Response Team risk being held personally liable for their actions in some circumstances.

To mount a First Amendment retaliation claim, for example, an aggrieved party must demonstrate three things: “first, that his speech or act was constitutionally protected; second, that the defendant’s retaliatory conduct adversely affected the protected speech; and third, that there is a causal connection between the retaliatory actions and the adverse effect on speech.”108 Whether government conduct has an adverse effect is determined by an objective standard: if the retaliatory conduct “would likely deter ‘a person of ordinary firmness’ from the exercise of First Amendment rights.”109 The retaliatory conduct need not be successful, as the cause of action is intended to address “conduct that tends to chill [speech], not just conduct that freezes it completely.”110

To the extent that Bias Response Teams are used to better understand students’ perspectives, to prepare general programming to constituents of the institution, or to provide resources to a complaining student, these goals are unobjectionable on First Amendment grounds. But the reality is that Bias Response Teams are generally intended to deter offensive speech and conduct. Their goal is to chill speech that the institution or its constituents find offensive or unkind.111

When Bias Response Teams intervene directly with the reported student, the risk of exposing the university to First Amendment claims increases. Bias Response Teams often submit speech to the review of police and campus conduct administrators, who launch an “investigation”112 or bring “charges”113 against the “respondent,”114 who may be summoned for a “hearing”115 and found “guilty”116 or be provided with an “educational”117 reprimand—or, in the case of Longwood University, “education sanctions.”118 This is the language of punitive systems, not educators, and it is likely to be perceived as such by students and by courts. Simply calling a quasi-punitive response system “educational” doesn’t make it so. After all, many institutions already describe at least some of their punitive measures as “educational” in nature.119

Even the public pronouncement that an investigation is underway—particularly when conducted by law enforcement—can itself have a chilling effect.120 While universities need not remain silent about offensive speech, going “beyond simple vocal condemnation” and implying that particular instances of protected speech may be punished can amount to a violation of the First Amendment.121

The Supreme Court’s perspective in Bantam Books, Inc. v. Sullivan (1963) is instructive. There, the state of Rhode Island established a commission whose goal was to, among other things, “educate the public” about books and printed materials it viewed as obscene, acting as a gatekeeper to “investigate and recommend the prosecution” of persons found to be distributing obscene materials.122 The commission promulgated lists of “objectionable” publications to police departments and, when booksellers were reportedly selling objectionable material, the commission sent them notices suggesting that the commission had the power to recommend prosecution if materials were found to be obscene.123 The Supreme Court held that the commission’s claim that it simply “exhort[ed]” publishers to avoid distributing obscenity, and could not itself punish booksellers, was “untenable”:124

It is true that [the] books have not been seized or banned by the State, and that no one has been prosecuted for their possession or sale. But though the Commission is limited to informal sanctions—the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation—the record amply demonstrates that the Commission deliberately set about to achieve the suppression of publications deemed “objectionable” and succeeded in its aim. We are not the first court to look through forms to the substance and recognize that informal censorship may sufficiently inhibit the circulation of publications … .

Bias Response Teams are arguably quite comparable to the Rhode Island commission discussed in Bantam Books. While they might protest that they are intended not to punish speech but to discourage speech contrary to the values of the institution, even if that speech is protected, Bias Response Teams are nevertheless intended to chill speech. By using the language, tools, and administrators associated with disciplinary systems, Bias Response Teams risk being perceived as intimidating, not educating. While some systems strike an appropriate balance by, among other things, limiting their definitions of reportable conduct to speech unprotected by the First Amendment,125 the vast majority do not.

The prospect of a retaliation claim should alarm colleges and universities. The central question of such a claim—whether the conduct would deter a person of ordinary firmness from continuing to speak—is fact-based, meaning it’s unlikely to be resolved before summary judgment, increasing universities’ legal exposure.126 Additionally, many of the scattered decisions on what meets the “ordinary firmness” test are based in the context of government employment, where the government’s interest is given substantially more weight, than in the context of retaliation against a non-employee.127

This is not to say that universities must refrain from criticizing or condemning offensive conduct or speech. Criticism is not censorship, whether it is broadcast to the student body or public at large or instead sent directly to a student. University officials retain their own First Amendment right to contribute to discourse on campus and can do so without creating a substantial risk of a First Amendment retaliation claim.128 The tools universities deploy in response to speech, how they are deployed, and how universities describe these systems to students matter.

Finally, because universities often keep opaque records documenting their interventions with reported speakers (discussed below), universities have a diminished ability to argue that such interventions provided meaningful education, as opposed to a chilling instruction to stop speaking.

despite acknowledging first amendment tensions, universities provide little if any training

The First Amendment issues faced by Bias Response Teams are complex, nuanced, and fraught with potential pitfalls that may lead public institutions into costly lawsuits. Leaving aside legal risks, Bias Response Teams also risk conflicting with essential principles of academic freedom, freedom of expression, and freedom of inquiry. Yet despite these risks, few Bias Response Teams receive meaningful training, if any, on the contours of these issues.

Of institutions surveyed, 84 (50.6%) acknowledge a tension with freedom of speech, freedom of inquiry, or academic freedom on their websites or in their policies. Of these, 50 are public institutions and 34 are private.

While Bias Response Team training requirements and materials were not part of FIRE’s survey, FIRE has utilized state public records requests to explore the types of training required of members of Bias Response Teams. Although FIRE has issued or reviewed dozens of public records requests to universities seeking training materials distributed to Bias Response Teams, we’ve only seen materials from one school, Louisiana State University, that provided substantive training on First Amendment issues.129

Other institutions, despite acknowledging that identifying First Amendment issues can be nuanced, do not appear to provide training. For example, the University of California, San Diego (UCSD) notes on its website that “[i]ssues pertaining to freedom of speech and expression can be very complicated and confusing.”130 The university’s definition of “bias incidents” likewise observes that the “protection of freedom of expression, including controversial speech and sometimes even offensive or hurtful words, is vital to a community of teachers and learners” and that some “acts of bias may either not be severe enough to violate policy or be protected expressions of speech.”131 Yet despite freedom of expression being both “complicated” and “vital,” the University of California’s Office of the President, responding on UCSD’s behalf to a public records request issued by FIRE, did not produce any training materials relating to the First Amendment at UCSD.

Another school, Longwood University, claimed as recently as August 2016 that because universities could not impose “campus judicial codes that include specific prohibitions related to bias and hate” under the First Amendment, it instead “train[s] board members to identify bias-related behavior and include appropriate education sanctions when a student is found responsible.”132 An August 2016 “Bias Response Team Training” memorandum, in discussing “consequences” for bias incidents, asserted that there are “no laws for bias incidents” and that the team doesn’t “get the firm backing through law or the institution in general about these topics.”133 A contemporaneous training slideshow indicated that Bias Response Team members would be trained on “legal issues” without elaboration.134 None of the materials provided to FIRE indicate that any training on First Amendment issues was provided.

a resistance to transparency

With few exceptions, Bias Response Teams suffer from a lack of transparency, and universities are too often willing to stonewall public records requests concerning their teams. While protecting the privacy of both reporting and reported parties is important, this hesitance to engage in meaningful transparency is worrisome. The ways in which universities respond to offensive speech and discrimination are of particular public concern,135 and doing so without being transparent, or being selectively transparent,136 risks being seen as an effort to hide incidents from the community.

Approximately 28% of institutions with bias reporting systems do not even disclose who reviews the reports. If universities are unwilling to publicly identify who is responsible for reviewing and responding to reports, then students, faculty, and the public will be hindered in holding public servants accountable. Similarly, a refusal to identify Bias Response Team members does not instill confidence that schools take complaints seriously by devoting capable people to overseeing them.

And while many Bias Response Teams purport to exist for the purpose of keeping statistics, the statistics themselves are rarely published. The University of California, for example, developed its multi-campus reporting system in 2010 with the “[p]rimary purpose” of “statistical reporting,”137 yet it appears to have never published statistics. The University of California Office of the President, in response to a public records request for all statistics,138 only provided statistics last compiled in 2012 and apparently never published.139 Some institutions publish statistics on periodic bases, with varying degrees of transparency. And while the Clery Act requires federally funded institutions to publish statistics concerning hate crimes,140 most schools define “bias incident” more broadly than criminal acts. In any event, most institutions publish neither statistics nor reports.

FIRE has utilized public records requests under state law—similar to requests pursuant to the federal Freedom of Information Act—to ask dozens of schools to produce records relating to complaints; how they responded to those complaints; and the composition, policies, and training of their Bias Response Teams. While most complied with both the letter and spirit of the law,141 a number have resisted. Ominously, even where schools produce records, those records often fail to substantially document the actions the university took in response to the report, instead stating that the respondent was provided with “education.” This does not inspire confidence that the response was meaningful education, as opposed to a reprimand.

Justice Louis Brandeis famously opined that sunlight was the best of disinfectants.142 But a popular tactic of sunshine-shy administrators is the employment of hefty fees to locate and redact public records, notwithstanding open records laws encouraging universities to reduce or waive fees when releasing documents that would serve the public interest. The University of Northern Colorado attempted to charge FIRE hundreds of dollars for records eventually obtained by a media outlet, Heat Street, which revealed that UNC’s Bias Response Team had discouraged professors from discussing subjects of debate raging in legislatures and the media.143 That blast of sunlight caused UNC to shutter its Bias Response Team.144

Similarly, the University of Oregon concluded that releasing its records would not be in the public interest,145 demanding that FIRE pay $1,483.30 to review its team’s records.146 The university’s steadfast refusal to acknowledge the public interest was plainly belied by criticism by national media outlets,147 which spurred a faculty inquiry into the team’s activities. When the records were eventually produced, Oregon was unable to locate records of some incidents, including one pilloried in the media.148

Other institutions have been quick to delete or hide once-public websites documenting bias incidents following public criticism. Colby College placed its log of bias incidents behind a password-protected field after it was publicly criticized.149 So, too, did Skidmore College.150 More alarmingly, several institutions responded to FIRE’s public records requests by initially claiming that there were no records to produce. When FIRE issued additional requests seeking records of what efforts the school made to search for records, the originally-requested records were suddenly located and produced. This suggests a certain lack of good faith from these institutions in following their legal obligations.

Other institutions found more creative ways to stonewall. The University of California’s Office of the President (UCOP), for example, intervened to respond on behalf of its subsidiary campuses after FIRE issued records requests to each campus about its processes. Months later, UCOP professed that it would be too difficult for the central office to locate records of how its campuses responded to reported incidents. UCOP also refused to produce records of any reported incident whatsoever, claiming that it would be too difficult to redact students’ names—a task somehow accomplished without complaint by dozens of other schools, many of which boast far fewer resources than the University of California system.

normative criticisms of bias response teams

Given that reported incidents of perceived “bias” run the ideological gamut, subjecting campus speech to review by conflict-averse administrators runs the risk of chilling speech from any and every perspective. This illiberal approach invites administrative intervention whenever there are impolite words or disagreement of any sort. College campuses must remain open for vehement disagreement and impolite rhetoric lest they invite administrators to limit speech and debate.

This view is not FIRE’s alone. Writing in the New Republic, Carleton College professors Jeffrey Aaron Snyder and Amna Khalid aptly observed the limitations of Bias Response Teams and their potential chilling effects on academic discourse and campus speech:

We do not want our campuses overrun with eager “see something, say something” “student informants.” Far from empowering students with the requisite skills for having difficult conversations, bias response initiatives, as a Boston College student asserted, encourage “students to ask the administration to solve problems instead of solving them amongst themselves.”

[…]

Let us be clear: Bias and discrimination are real and pressing concerns on campuses across the country. There must be channels for students, especially those from historically underrepresented populations, to communicate their concerns to administrators and their peers. Institutions need to keep on top of “campus climate” concerns through surveys and community-wide discussions. But to institute a formal body that assesses the merits of bias incident complaints is profoundly misguided.

[…]

BRTs will result in a troubling silence: Students, staff, and faculty will be afraid to speak their minds, and individuals or groups will be able to leverage bias reporting policies to shut down unpopular or minority viewpoints.151

At John Carroll University, a private, Catholic institution, Bias Response Team administrators acknowledged that critiques concerning freedom of speech “must be taken seriously.”152 Troubled both by the potential for “malicious-anonymous” abuse of the ability to anonymously report others and by the possibility that the system might have a chilling effect on speech, the university’s annual report observed:153

If a person is able to report a peer, professor, supervisor, or other community member for “speech code violations,” and particularly if those reports result in punitive action toward the offender, the system could shut down, rather than open up, critically important dialogue. On a university campus with an implicit commitment to the free exchange of ideas, such a result must be considered unacceptable.

Other institutions have recognized these risks. In August 2016, the University of Iowa scrapped a planned bias response team, observing a “high failure rate in the [teams] at other institutions” as they became “almost punitive in nature,” rendering them “scolding panels.” Although the University of Iowa’s planned team did not involve a punitive component, the type of response undertaken by other BRTs “accomplishes nothing,” said one administrator.154

As academic freedom expert Donald Downs, professor of political science, law, and journalism at the University of Wisconsin—Madison, observed, Bias Response Teams attempt to strike a difficult balance:155

In some telling respects, some of these new policies [including Bias Response Teams] do not overtly call for censorship, as the old speech codes did. Rather, they are meant to “educate” the academic community about the negative impact that certain types of speech can have. Such educational schemes can be consistent with the goals of higher education if done right and in the right spirit. There is nothing intrinsically wrong with educating students and others about the potential impacts of speech, so long as such educational endeavors are not smokescreens for informal or formal ideological bullying. However, given the climates on many campuses today, such educational efforts too often amount to speech codes in disguise. The new policies may not be overt speech codes, but they can accomplish censorship by other means.

striking a balance

It is understandable that universities wish to monitor the climate for students on their campuses and to have support systems in place for students who, for one reason or another, may be struggling to feel at home on campus. But it does not follow from these precepts that universities must effectively establish a surveillance state on campus where students and faculty must guard their every utterance for fear of being reported to and investigated by the administration.

While not every Bias Response Team impermissibly limits protected speech, the reality is that it is extremely difficult to have a system in place for the reporting of protected speech without creating a risk that speech and expression on campus will be chilled as a result. As lawyer, writer, and former FIRE President David French wrote, universities with Bias Response Teams are playing a “dangerous constitutional game” by not explicitly prohibiting protected speech but creating a “process-is-punishment” mechanism that deters people from speaking out.156

When setting parameters for their teams and implementing responses, universities must be cognizant of the risks created by broad definitions, anonymous reporting systems, unclear policies, and lack of training, and must take steps to minimize or eliminate these risks. While some Bias Response Teams have demonstrated familiarity with freedom of speech in their responses to reports of offensive speech, such actions are too often not the result of effective training and policies.

If bias reporting systems are to exist on campuses, they should describe reportable situations narrowly, excluding protected speech, or at the very least avoid characterizing the teams and their responses in ways that convey a punitive message. Universities should also recognize that even narrow definitions of bias are likely to result in reports of protected speech, and provide accurate and impartial training to Bias Response Team members so that they are able to identify protected speech.

Universities would do best to focus on how they can help the reporting student, not on the reported speaker. Unless a community member has engaged in conduct unprotected by the First Amendment or academic freedom, any institutional response to bias should avoid uninvited intervention with the speaker and instead focus on providing resources to the reporting student. In doing so, they will help encourage all community members to express themselves and participate in the marketplace of ideas that our nation’s colleges and universities are uniquely suited to provide.

Appendices

appendix a: categories of bias

The following is the percentage of schools that promulgate the following categories of bias:

appendix b: institutions with bias reporting systems

Footnotes