We have recently examined a number of college and university “green light” policies here on The Torch, in order to demonstrate how schools can fully protect their students’ free speech rights while at the same time addressing unlawful conduct falling outside of the First Amendment’s protections. We have already taken a look at green light policies relating to harassment, civility, computer use, and loyalty oaths. Today, we take a look at bias incident policies.
Some of the more memorable instances of campus censorship during my time at FIRE have come under the rubric of bias incident policies, which typically allow students to report any type of “biased” or “prejudiced” speech to a campus office and provide for investigation and punishment of the alleged speech or conduct. These policies have led to cases at, among other institutions, the University of Georgia, wherepolice reports were filed for such “acts of intolerance” as a student writing “Dick and Sideboob” on a dry-erase board on another student’s dorm room door. And who can forget Claremont University Consortium in California, where students at all five undergraduate campuses in the Consortium were emailed institutional reports regarding someone writing “Hilary is a foxy lesbian” on a whiteboard, an advertisement for a “Wild Wild West” party, and an advertisement for a “White Party.”
But bias incident policies are no laughing matter. While they are ostensibly aimed at keeping campuses safe for all students, it is deeply problematic for any public university, or any private university committed to free speech, to restrict and punish speech merely alleged to be biased or prejudiced. Standing alone, such speech includes clearly protected commentary about social and political issues—for instance, the expression of one’s views about immigration reform, affirmative action, or religious doctrine. The existence and operation of these policies on college campuses is an ever-present threat to students’ free speech rights.
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.
The policy goes on to define what constitutes a “bias complaint,” and it “encourages prompt reporting of bias complaints so that [the university] can evaluate the alleged facts for possible violation(s) of University policy … .” It then clarifies:
This definition is used for reporting and statistical purposes only. It carries no independent sanctioning weight or authority.
This policy leaves no doubt about the fact that students will not face disciplinary action for engaging in constitutionally protected expression. At the same time, UVa provides an avenue for students concerned about a particular incident to report that incident to authorities, and the university is able to evaluate whether or not that incident constitutes protected speech or actionable conduct. That is a proper way to balance the different interests involved.
As a proud green light institution (one of three in the state of Virginia), UVa maintains a number of good policies that other colleges and universities should emulate in order to protect free speech. This is one of them. We encourage other schools to follow UVa’s example and revise their own bias incident policies (if they have one) to look like UVa’s model policy.
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