Unconstitutional ‘Bias Reporting’ Programs: A Nationwide Problem

This fall, The College of William & Mary launched a Bias Incident Reporting System “to assist members of the William and Mary community—students, staff, and faculty—in bringing bias incidents to the College’s attention.” In its initial incarnation, the system was fraught with constitutional problems, from both free speech and due process standpoints. 

The system initially allowed for anonymous reporting, providing that “[a] person reporting online may report anonymously by leaving the personal information fields blank.” The definition of “bias” was overbroad and encompassed constitutionally protected expression: “A bias incident consists of harassment, intimidation, or other hostile behavior that is directed at a member of the William and Mary community because of that person’s race, sex (including pregnancy), age, color, disability, national or ethnic origin, political affiliation, religion, sexual orientation, or veteran status.” 

The homepage for the system even contained an explicit misstatement about the First Amendment, stating that the First Amendment did not protect “expressions of bias or hate aimed at individuals that violate the college’s statement of rights and responsibilities.”

Fortunately, the system’s launch drew the attention of concerned students, alumni, journalists, and bloggers. On October 23, a group calling itself “Free America’s Alma Mater” published an advertisement in William & Mary’s student newspaper, The Flat Hat, skewering the new program.

“Welcome to the new William & Mary’s Bias Reporting System, where W&M now invites you to shred the reputation of your neighbors . . . anonymously,” the ad read. “Prof gave you a bad grade? Upset at that fraternity brother who broke your heart? Did a colleague vote against you for tenure? Now you can get even!! Anonymously report anything that offends you to the William & Mary Thought Police."

After publishing the ad, the group also set up a website where it urged others to help “stop this assault on free speech.”

In the wake of the negative publicity, William & Mary quietly made a number of significant changes to the Bias Incident Reporting System. By Nov. 13, anonymous reporting was no longer permitted, with the website updated to the effect that “[a]nonymous reports will not be accepted.” 

The definition of “bias” was revised to be consistent with federal anti-harassment law, now providing that “A bias incident consists of harassment of a member of the William and Mary community, including racial or sexual harassment. The College defines harassment as abusive conduct that is sufficiently severe, persistent, or pervasive to threaten an individual or limit the ability of the individual to work, study, or participate in College activities.” 

The language about the First Amendment not protecting expressions of bias or hate also disappeared from the website. These changes make the system a lot less objectionable.

Problems still remain—for one thing, the website states that “If you are uncertain whether an occurrence meets the bias incident definition, please report the occurrence.” Even with the new, constitutional definition of a “bias incident,” this statement opens the door for abuse. Moreover, although anonymous reporting is no longer allowed, it is unclear whether someone accused of a “bias incident” has a right to know his or her accuser’s identity—and the right to confront one’s accuser is an essential aspect of due process.

Nonetheless, thanks to the many public expressions of outrage against the system in its original form, the rights of William & Mary students no longer appear to be in serious and immediate jeopardy.

The same cannot be said, however, of students at numerous other colleges and universities around the country. Bias incident reporting systems as outrageous as the one originally in place at William & Mary abound, and because they have not received the same degree of publicity as William & Mary’s program, they seem to be flying under the radar. We would like to put an end to that. Here are just a few of the worst (it is important to note that these are all in place at public universities, where students are legally entitled to free speech and due process rights):

• The University of Virginia maintains a Bias Reporting Web Site that allows for anonymous reporting. The Bias Incident Report Form provides: “If you wish to remain anonymous, please drop the completed form in the Bias Incident Reporting Box….” A bias incident is unconstitutionally defined as “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.”
• Oregon State University has a Bias Response Team dedicated to responding to “bias incidents” on campus. A “bias incident” at Oregon State is broadly and unconstitutionally defined as “any behavior, word, or action directed toward an individual or group based upon actual or perceived identity characteristics or background. Such acts may result in creating an unsafe environment or have a negative psychological, emotional, or physical effect on an individual, group, and/or community. Bias incidents occur regardless of whether the act is legal, illegal, intentional, or unintentional.” The Bias Incident Report Form provides that those reporting an incident “may choose to remain anonymous.”
• Ohio State University has a Bias Assessment and Response Team to which members of the university community may report bias anonymously. “Bias incidents” are broadly and unconstitutionally defined as any “[a]cts or behavior motivated by the offender’s bias against a race, religion, disability, veteran status, ethnic/national origin groups or sexual-orientation group.” According to the Bias Incident Report Form, accusers “have the option to file anonymously.”

These are just a few of many similar bias reporting programs in place at institutions across the country. Over the coming weeks and months, FIRE will continue to expose them here on The Torch. These programs violate students’ rights to free speech and due process, and they need to be stopped. Public exposure put an end to William & Mary’s program; we encourage students at Virginia, Oregon State, Ohio State, and other universities maintaining these outrageous programs to help FIRE bring them to the public’s attention.