Learn More About Speech Codes: Policies on Bias and Hate Speech

Summary

Many colleges and universities have enacted policies aimed at eliminating “bias” and “hate speech” from campus, frequently interfering with student expression due to their broad definitions and their reporting and disciplinary elements. Instead, colleges should solicit reports of harassment, discrimination, and other violations of policy, and connect those who report behavior that does not rise to the level of those violations with supportive resources. Colleges can also enact voluntary educational programming to address pervasive issues around protected identities on campus.

Consult FIRE’s Model Speech Policies for College Campuses webpage to explore policies from various institutions in our Spotlight database that earn a “green light” rating in each category, including policies on bias.

Common Mistakes

Undefined or broadly defined terms

Policies often broadly define bias by including expression that would be protected under the First Amendment when standing alone, like a single “degrading” joke. Alternatively, many policies fail to define the term bias at all, leaving students guessing as to what type of speech may land them in trouble with the administration.

Investigating or punishing “bias”

University policies on bias often state the institution will investigate or even punish bias, without tying that term to unlawful behavior, such as harassment or discrimination. Investigation or punishment of biased speech serves to chill expression on campus.

Soliciting Reports of “bias”

Even soliciting reports of biased expression or behavior by the university risks chilling speech that is deemed subjectively biased but nonetheless protected under First Amendment standards.

Vague Consequences

Often these policies include vague consequences such as “mandatory educational projects” or compulsory meetings with administrators. Being forced to write a contrived essay about wrongdoing violates students’ freedom of conscience.

Policy Examples

Red light

Mount Holyoke College: Protocols for Bias Incidents and Hate Crimes

Bias incidents are any act, conduct, or communication that reasonably is understood to demean, degrade, threaten, or harass an individual or group based on an actual or perceived identity characteristic such as race, color, national or ethnic origin, ancestry, religion, sex, sexual orientation, gender identity, gender expression, age, genetics, physical or mental disability, and veteran/military service status or other protected status. Bias can occur whether intentional or unintentional and may not violate college policy or state or federal law to be defined as a bias incident. . . . The range of outcomes depends on the outcomes of the investigation into the case and which courses of action the target chooses to pursue. . . . Outcomes may include, but are not limited to: a letter of reprimand, mandatory educational project, social probation, suspension, required withdrawal, and inconclusive findings.

Yellow light

Central Washington University: Diversity & Inclusivity: Bias Response Plan

CWU defines bias related incidents as behavior, conduct, speech, images, or expression that discriminates, stereotypes, excludes, harasses, or harms anyone based upon their actual or perceived identity such as race, color, ethnicity, national origin, sex, gender identity or expression, sexual orientation, disability, age, or religion . . . Central Washington University encourages all members of the campus community who believe they are victims of a bias motivated incident or crime to immediately report the incident to the police agency of jurisdiction.

Green light

Plymouth State University: Student Rights and Code of Conduct: Bias Incidents

The University defines a “bias complaint” as “any report of a threat or act of harassment or intimidation – verbal, written or physical – which is personally directed against or targets a Plymouth State University community member because of that student’s age, color, disability, marital status, national or ethnic origin, political affiliation, race, religion, sex (including pregnancy), sexual orientation, veteran status or family medical or genetic information.”

[. . . ]

Although the expression of an idea or point of view may be offensive or inflammatory to some, it is not necessarily a violation of law or University policy. The University values and embraces the ideals of freedom of inquiry, freedom of thought, and freedom of expression, all of which must be vitally sustained in a community of scholars. While these freedoms protect controversial ideas and differing views, and sometimes even offensive and hurtful words, they do not protect personal threats or acts of misconduct, which violate criminal law or University policy.