Bias Response Teams and the Distinction Between Protected and Unprotected Speech

Yesterday, FIRE published a nationwide survey of 232 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. Today’s Inside Higher Ed coverage of our survey includes a reaction from an organization for student affairs administrators:

Kevin Kruger, president of NASPA: Student Affairs Professionals in Higher Education, challenged FIRE’s assessment somewhat, saying that bias response teams “play an important role in responding to behavioral incidents on campus around issues such as race, ethnicity, religion and gender identity.” Their design and intent is to make “a clear distinction between free speech and actual behavior that causes physical harm or speech that is harassment or threatening,” he added. “A well-developed bias response protocol provides a clear and consistent mechanism to respond to students most directly affected by the bias incident.”

Kruger said the distinction between protected speech and threatening or harmful behavior is “critical.” So even in cases in which reported speech or behavior is clearly protected, he said, teams can play an “important educational role in reinforcing the value of diverse and often controversial speech on a college campus.”

If Kruger means that Bias Response Teams should distinguish between protected speech and unprotected conduct to avoid having an impermissible chilling effect on protected speech, FIRE agrees. It is critical that Bias Response Teams’ policies draw a clear, consistent distinction between protected speech and harmful conduct, true threats, or actionable harassment, and act (with respect to the actor) upon the latter. There is also no problem with providing resources, guidance, or support to a student affected by offensive speech, whether that speech is protected or not. In these regards, a Bias Response Team can play an important role in addressing a variety of difficult situations faced by students.

But if Kruger means that most Bias Response Teams already appropriately distinguish between protected speech and unprotected speech or conduct, then FIRE respectfully disagrees.

Some institutions’ Bias Response Teams do define bias narrowly, reducing the likelihood that protected (and often political) speech will be swept up for scrutiny by law enforcement or administrators. We have little objection to Bias Response Teams when they have airtight, speech-protective definitions and make clear that they are not used for punitive purposes.

The first step to protecting speech on campus is to have written policies that clearly and consistently protect the expressive rights of students and faculty—or, put another way, written policies that do not authorize administrators to infringe on speech. But a written policy—which is what FIRE’s Spotlight database rates—is only the first step to protecting speech, and is not a guarantee that administrators will apply the policy appropriately. Administrators at a green light institution could still overstep the bounds of written policy and take actions that violate students’ First Amendment rights.

Contrary to what Kruger seems to suggest, though, many Bias Response Teams do not clearly distinguish between protected speech and proscribed conduct. Or, when they do make such a distinction, it’s because they’re explicitly asking for reports of protected speech.

For example:

• The University of Minnesota, in a recently-deleted definition of a “bias incident,” said that “some bias incidents might be protected speech, but still violate the University of Minnesota’s commitment to civility and diversity.”
• The University of Northern Iowa’s definition notes that “[a] bias-related incident is any word or action directed toward an individual or group based upon actual or perceived identity characteristics or background of a group or person that is harmful or hurtful.  Some bias-related incidents may be contrary to law or policy, while some may be speech protected by the First Amendment of the Constitution of the United States.”
• The University of North Carolina, Charlotte, in defining bias, includes “negative comments in social media” and cartoons that “belittle someone because of their beliefs ... or political affiliation.”
• At Williams College, bias incidents are distinguished from hate crimes, and bias incidents include “speech or expression,” including drawing “pictures that imitate, stereotype, or belittle/ridicule someone because of,” among other things, their “political affiliation.”

The definitions of “bias incident” and the reporting systems we’ve observed largely include protected speech, and we’ve seen few instances of Bias Response Teams utilizing robust training and policies concerning freedom of expression. These types of broad definitions actually result in universities monitoring a breathtakingly broad range of protected speech. When universities expressly solicit reports of protected speech, yet don’t train administrators on issues of freedom of expression, the risk that the response will have an impermissible chilling effect is abundantly clear.