Last week, FIRE published a nationwide survey of Bias Response Teams (PDF) demonstrating that many of these systems call upon students to report fellow students and faculty for protected speech, including political speech. One of the institutions we criticized for a particularly egregious definition of “bias incident” was Longwood University, which expressed its displeasure to the Richmond Times-Dispatch:
[Virginia Commonwealth University] and [the University of Virginia] were among the universities criticized by FIRE, as were [Virginia] Tech, George Mason, Mary Washington, the University of Richmond and Longwood University, which was singled out for special scrutiny for including the threat of “education sanctions” in its policy.
“The FIRE report is extremely misleading,” Longwood spokesman Matthew McWilliams said.
Longwood has a protocol to identify when bias might be a factor in behaviors such as harassment that may violate the law or conduct code, “but we do not under any circumstances punish students simply for their beliefs or opinions.”
No bias issues have been reported, he said.
Talk about misleading.
For one, Longwood University produced records of reported bias incidents to my colleague, Alex Morey, in response to a public records request. They wouldn’t produce those records to me, even though I requested them, because I’m not a resident of the Commonwealth of Virginia, and Virginia’s Freedom of Information Act is limited to “citizens of the Commonwealth.” Yes, Longwood insisted that one FIRE employee rather than another physically send the public records request. Some stonewalling is built by amassing pebbles.
There have been relatively few bias incidents reported at Longwood, and most concern criminal conduct. But Longwood’s policy is not limited, as its spokesman claims, to conduct outside the scope of the First Amendment. And Longwood knows this because I’ve pointed this out before.
Let’s take a look at Longwood’s policies.
Longwood distinguishes a “bias incident” from a hate crime, and defines the term this way:
- Conduct, speech, or expression that is motivated by bias or prejudice.
- Does not involve a criminal act.
- May, however, violate campus codes or policies.
This definition is also inconsistent with another definition of “bias” offered by Longwood on the same website:
Bias is a tendency or inclination; irrational preference or behavior that prevents unprejudiced consideration of people, events, or situations. Bias can manifest itself in a performed negative opinion or attitude toward a person or group of persons based on their actual or perceived:
Both definitions are among the broadest definitions of “bias incident” we’ve seen. The first involves virtually any speech “motivated by bias or prejudice” even if it does not violate “campus codes or policies” or constitute a criminal act. The second is limited to particular categories, but includes bias against “[p]olitical or social affiliation,” which could encompass virtually any political speech.
But Longwood told the Times-Dispatch that it would punish someone only for a violation of their conduct code that is also a bias incident. Even assuming that’s true, it’s the conduct code itself that makes the university’s bias reporting system constitutionally suspect.
Longwood’s “bias” website provides “[e]xamples of charges” students might face for a bias incident. These charges include “Abuse to Persons.” How is this offense defined? Broadly:
According to the 2015-2016 Student Handbook, bias incidents may fall under the “Abuse to Persons” violation. Abuse to Persons includes:
- Harassment, threats, intimidation, coercion or abuse (e.g., physical, verbal, graphic, or electronic) directed toward any person or group of people.
This definition is not limited to speech unprotected by the First Amendment. In particular, prohibitions against verbal “abuse” have been routinely struck down, including by the Supreme Court, because the word “abuse” doesn’t convey what conduct or speech is impermissible. This leaves police or administrators with “unconstitutional discretion in” deciding when to enforce the prohibition against “abuse.” Houston v. Hill (1987). As South Carolina’s Supreme Court has observed, “[o]ne’s view as to what [‘abuse’] was intended to mean or connote would likely vary considerably, depending upon whether the viewpoint was that of the alleged abuser or that of the person allegedly abused.”
And there’s reason to be concerned that this definition can be applied to protected speech. Immediately after defining the “Abuse to Persons” prohibition, Longwood’s website provides some examples of how “[b]ias can manifest itself,” including:
- Offensive … images/drawing
- Drawing, creating pictures, or speaking/acting in a way that reinforces stereotypes, or belittles/ridicules someone because of their gender, gender expression, race, ethnicity, national origin, disability, sexual orientation, faith, or political affiliation
That would mean that belittling someone with pictures, drawings, or words because of their political affiliation might qualify as a bias incident—and perhaps even “Abuse to Persons.” Even a protest sign ridiculing a presidential candidate could be seen as expression which “ridicules someone because of their … political affiliation.”
So far, it doesn’t appear that Longwood’s bias reporting system has led to abuse or violations of its students’ First Amendment rights. But Longwood’s policies are remarkably susceptible to abuse, leaving administrators with broad discretion to impose “educational sanctions”—if not outright punishment for violations.
That Longwood hasn’t yet been significantly tested by controversial speech isn’t an indication that its system is well-formed. Creating broad definitions of prohibited speech or conduct and leaving it to government officials to pick and choose when they’ll enforce the regulation is an invitation to censorship.
As our Supreme Court observed over a century ago:
It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.
If Longwood believes its system is limited to speech or conduct that is unprotected by the First Amendment, it should memorialize its belief by enshrining it in written policy. But it cannot insist that its bias reporting system poses no threat to freedom of speech when its policies, as written, plainly permit punishment for protected speech.