Following discussions with FIRE, University of Virginia Dean of Students Allen Groves has revised the university’s "bias reporting" policy, which previously infringed on students’ right to free speech. FIRE is grateful for Dean Groves’ commitment to Virginia students’ free speech rights and is happy to report on this exciting development.
The old policy encouraged students to report all "bias complaints," defined as
[A] report of a threat or act of bigotry, harassment or intimidation – verbal, written or physical – which is personally directed against or targets a University of Virginia student because of that student’s race, age, color, disability, national or ethnic origin, political affiliation, religion, sex (including pregnancy), sexual orientation, or veteran status. (Emphasis added.)
While harassment and intimidation are not protected forms of speech, the fact that speech is bigoted does nothing, in and of itself, to deprive that speech of First Amendment protection. There are many positions on political and social issues that may strike some people as bigoted, and it is essential that these positions are able to be aired and debated in the marketplace of ideas.
Although Virginia’s "bias reporting" policy does not form an independent basis for the punishment of speech, the risk of an official investigation is itself sufficient to have a powerful and impermissible chilling effect on student speech, so FIRE alerted the university that the policy as it stood was a threat to free speech on campus.
Fortunately, Virginia has now removed the word "bigotry" from its definition of a bias complaint, defining it as "a report of a threat or act of harassment or intimidation – verbal, written or physical – which is personally directed against or targets a University of Virginia student …." Additionally, in a letter introducing the policy, Dean Groves makes clear that constitutionally protected expression will never form the basis for an official university investigation. Dean Groves’ introduction states that
Some bias-motivated or otherwise disrespectful acts may be constitutionally protected speech and thus not subject to University disciplinary action or formal investigation. Indeed, as our founder Thomas Jefferson once wrote, "For here we are not afraid … to tolerate error so long as reason is free to combat it." However, we should do all that we can to foster a good dialogue on what is appropriate in our community of peers. [Emphasis added.]
So, it looks now as if Virginia’s bias reporting mechanism is merely a way for the university to keep track of troubling incidents on campus so that it can, when necessary, issue the appropriate institutional response. This is in line with one of FIRE’s guiding principles, which is that the best response to offensive speech is simply more speech. Although the University of Virginia still has a number of other policies that need reform before it can join its fellow state school William & Mary as a "green light" institution, this is a very positive development, and we are excited to report on it. Kudos to Dean Groves for having the courage and principle to stand up for free expression and the First Amendment.