The advent of bias reporting protocols on university campuses is viewed by FIRE as a pernicious threat to student speech, and with good reason.
Universities that maintain and operate such policies typically encourage students and others on campus to report, often anonymously, occasions in which they experience or overhear any speech that they deem biased, prejudiced, or hostile on the basis of listed categories. Even though speech that is prejudiced or biased, standing alone, is entitled to constitutional protection, many universities have unwisely enacted such reporting protocols in order to protect students from mere offense or politically incorrect speech.
In so doing, they have placed a harmful chilling effect on speech on their campuses, ignoring that the investigation of protected expression—even absent official punishment—is impermissible under the First Amendment and free speech principles. Thankfully, at least one university has expressed to FIRE its understanding of these problems and its willingness to do away with the constitutional infirmities in its own bias reporting policy.
Washington State University (WSU) was recently the recipient of a letter from FIRE pointing out the threat to freedom of expression presented by its "Bias Hotline" policy. (The letter was part of FIRE’s national mailing campaign to universities in the wake of the Third Circuit Court of Appeals’ precedent-setting decision in DeJohn v. Temple University.) As currently formulated, the policy reads in pertinent part:
If you witness or experience something that discriminates, stereotypes, excludes, or harasses anyone based on some part of their identity – such as race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap, report it immediately.
Washington State University and Washington State University Police Department is committed to responding to and investigating all reported incidents of discrimination, harassment, hate, and bias.
In our letter to WSU, we explained that the Bias Hotline policy threatens much protected speech. We pointed out, for instance, that the policy’s aim at speech that merely "stereotypes" another person "based on some part of their identity" renders it overbroad on its face. Indeed, by its terms the policy has seemingly no bounds and could be applied against some of the most innocuous speech imaginable, such as speech that stereotypes another on the basis of his or her sports allegiances, musical preferences, regional ties, and much more. Likewise, the statement that WSU is committed to investigating any and all reported incidents of "hate" and "bias" encompasses protected speech; even so-called "hate speech," as FIRE has had to point out time and time again, is protected under the First Amendment, as the Supreme Court has made clear. Our letter also pointed out that the policy’s use of amorphous, undefined terms likely renders it unconstitutionally vague. Due to these and other flaws, we warned that the policy unquestionably places a major chilling effect on speech at Washington State, violating the rights of its students.
Last week, the university sent us a response letter in which it recognized the concerns we raised and promised to revise the policy in order to bring it into compliance with the First Amendment. In relevant part, the university’s response letter reads:
The Hotline is introduced by a statement crafted to encourage those victimized by hate crimes and discrimination to report the incident. It is not a policy and is not directly reflective of WSU policy. Nonetheless, WSU understands your concerns that these introductory statements should be crafted to encourage appropriate reporting without chilling constitutionally protected speech. Accordingly, WSU will review case law guidance, including the cases cited in your letter, and amend the language as appropriate to reflect WSU’s actual practice, which is to investigate only those reports of behavior which, if found to be true, would constitute illegal discrimination, harassment or criminal behavior.
We are hopeful that Washington State will follow through on its word, and we will be following along to see if they do. If the university truly intends to investigate only matters in which the reported behavior would fall into one of the enumerated categories that fall outside the First Amendment, it has some substantial revisions to make to the Bias Hotline policy’s introductory statements. FIRE will be watching keenly to see whether these revisions end up happening.
If WSU makes good on its promise, the policy change will be a benefit to students on its campus. One need not look far to see the harm that comes from such bias reporting protocols. California’s Claremont University Consortium by itself has seen a number of instances in which students engaging in clearly protected expression, typically harmless jokes and parody, have been accused of violating the respective policy on bias-related incidents at one of the Consortium’s five campuses. On each such occasion, the Consortium’s administration has responded by sending a warning e-mail to students on all five campuses, an over-the-top reaction to something as silly as "Hilary is a foxy lesbian" or a "Wild Wild West" party advertisement.
That the administration has had these disproportionate reactions, instead of letting common sense prevail and employing more measured responses, demonstrates the dangers of bias reporting protocols and the chilling effect they engender. What student at any of the Claremont campuses, after seeing these e-mails, is going to say or write something that might be controversial (especially edgy, pointed humor) and thereby risk a lengthy investigation? The typical student will instead self-censor. This deprives students on campus from hearing the full range of ideas and views out there and from enjoying a true marketplace of ideas.
Finally, there is an another major incentive for Washington State to pursue policy revision. A look at WSU’s policies on expression reveals that it has one red-light policy, the Bias Hotline policy, and a number of green-light policies. As such, if WSU were to correct the constitutional infirmities in its policy in a manner sufficient to earn a green light, the university may be in line to receive an overall green-light rating from FIRE. This would place WSU in a rare, prestigious group of colleges and universities—indeed, there are currently only 11 green-light institutions in FIRE’s Spotlight database. It would be an achievement that WSU could be justifiably proud of, and FIRE would be only happy to sing the university’s praises publicly to our many supporters and to our nationwide media network.
Therefore, I urge Washington State’s administration to follow through on its promise to FIRE, not only to earn a prestigious green-light rating for the university, but also to set an example for the many other schools that maintain bias reporting protocols to the detriment of their students’ speech rights.
Schools: Washington State University