University of Oregon on ‘Bias Response Team’: Nothing to See Here

This month, a number of commentators have criticized the University of Oregon’s (UO’s) bias incident reporting system—an online tool to report perceived incidents of “bias” to campus administrators—and some of the university’s “Bias Response Team’s” (BRT’s) responses to those reports. In March, FIRE filed a public records request with UO, seeking documents about students’ complaints and whether the BRT’s handling of those complaints has the potential to chill or infringe on First Amendment rights.

UO, however, is resisting public scrutiny.

In its response on April 1, 2016, the university told FIRE that it would not benefit the public to produce records relating to how they respond to what students perceive to be offensive speech. FIRE has asked UO to reverse its position and produce the records in a letter sent to the university this week.

Oregon’s BRT is like those of many universities, which are designed to create systems for students to report offensive speech or conduct directly to administrators. UO’s BRT “seeks to create a just campus by providing resources for the university community to respond to incidents of bias and harassment.” The scope of potential biases includes not only immutable traits—race, ethnicity, and so on—but also beliefs, such as “political or religious ideology.” In many, maybe most, contexts, these biases may be part of speech or opinion unquestionably protected by the First Amendment.

As Reason notes, some of the BRT’s responses to reported incidents—vaguely described in annual reports—are concerning, particularly where administrators intervene with offending speakers. One report, concerning a complaint that “a newspaper gave less press coverage to trans students and students of color,” resulted in a meeting between a BRT “Case Manager” and a reporter and editor of the newspaper. That university administrators intervened with student journalists concerning whether they were providing enough coverage of a topic—regardless of what that topic might be—is questionable, at best.

Another report involved a student who “reported feeling unsafe due to other students expressing anger about oppression.” How did UO respond to students who discussed how they feel oppressed? By dispatching a case manager to dictate “community standards and expectations to” those involved.

A previous annual report, no longer linked from the BRT website (but still stored on UO’s website), includes similar student reports. Unlike the summary reviewed by Reason, this document doesn’t disclose what the university’s response was to these and other reports:

• “Three separate students reported that a faculty member gave relationship advice that was sexist and heterosexist.”
• “A student reported that an email marketed a program by praising Columbus and Lewis & Clark as role models.”
• “An anonymous person reported that sorority members wore offensive themed costumes at an event.”
• “A student reported that an emcee of an event made racist and sexist remarks.”
• “A student of color reported that a faculty member belittled her request for trigger warnings.”
• “A student reported that a faculty member made a comment stereotyping people of a certain race and religion.”

Based on the information provided, these all sound like instances of speech protected by the First Amendment. So, too, are the students’ complaints that these incidents are offensive to them. So what role do UO’s administrators have in intervening, and what specifically did they do? Are the BRT’s responses likely to chill protected expression, or are they valuable tools to get students to engage one another in greater dialogue? And should administrators play this role at all, or are they simply providing a tool for students to silence one another? As with the student’s (apparent) complaint that other students were complaining about feeling oppressed, mechanisms of administrative intervention can and will be used to target the very students that administrators believe they’re helping.

Criticism of bias reporting systems is widespread and comes from across the ideological spectrum. In the New Republic, two professors catalogued varying bias incident reporting systems—including UO’s—and concluded that the initiatives may make it less likely that students will directly engage the speaker, and more likely to instead seek administrative intervention to punish:

BRTs are fatally flawed. Adjudicating “he said, she said” incidents is a logistical nightmare, if not downright impossible for thinly stretched administrators. There will no doubt be examples of injustice where the “accused” are investigated—even penalized—over paltry evidence, or where the discipline meted out is far too harsh for the alleged “crime.” What’s more, BRTs will result in a troubling silence: Students, staff, and faculty will be afraid to speak their minds, and individuals or groups will be able to leverage bias reporting policies to shut down unpopular or minority viewpoints. BRTs will substitute diktats for debate when what we need most is constant, frank conversation. By almost any measure, colleges and universities are more diverse today than they have ever been, and that’s the paradox: BRTs will turn the genuine, transformative educational power of diverse voices into a farce.

FIRE largely agrees. Schools can minimize the potential that Bias Response Teams will chill protected speech by making clear that speech protected by the First Amendment won’t be acted upon—and even then, administrators must actually adhere to those policies. For example, the University of Virginia and the University of Chicago both have systems which make clear that no action will be taken against speakers whose expression is protected by the First Amendment. Nonetheless, encouraging students to report on one another—if you hear something, say something (to administrators)—may not be conducive to the free and open debate that makes higher education valuable. Moreover, subjecting students and faculty to investigations can have a chilling effect on speech, even where no official punishment is ultimately meted out.

The question, then, is how universities actually implement their systems and how they respond to bias reports. This can be broken into a number of other questions:

• Are they encouraging complaining students to use their own voices to respond to offensive speech, and using reports to better understand students’ views? Or are they requiring offending speakers to meet with administrators to defend their statements?
• Are they suggesting to students or faculty members that they may be disciplined, or, worse, actually disciplining students or faculty members for protected speech?
• Can the BRTs’ conversations with students be credibly characterized as the university exercising its right to engage in “more speech”?
• How are members of the response teams trained on approaching incidents of protected speech?
• To what extent does the response team refer incidents to law enforcement, security, or other rule-enforcement bodies?

That’s why FIRE, in March, filed a request under Oregon’s Public Records Law, the state equivalent to the Freedom of Information Act, seeking records relating to UO’s BRT.

Under Oregon law, a government agency may charge fees for producing public records, but may waive fees if it first determines that disclosure “primarily benefits the general public.” At that point, the agency has the discretion of whether to charge these fees, charge only some of the fees, or charge no fees at all.

UO could have simply determined that the request was of public interest, yet still exercised its discretion to charge fees because of the complexity of the request. UO, rather, told FIRE that producing these records would not primarily benefit the public.

UO’s position is contradictory. Even without the recent media attention to the school’s BRT, UO apparently believes that it’s important to share details about its responses to such incidents—that’s presumably why it publishes annual reports about the incidents and UO’s responses. The BRT is, ultimately, a government program that guides official responses to what often turns out to be protected speech by students, faculty, and media.

That’s worth public scrutiny, and the University of Oregon’s determination that sunlight cast upon its responses to what students perceive as racist, sexist, or offensive speech is not in the public interest is perplexing. That’s why we’ve written to the University of Oregon, requesting that they reconsider their position. If FIRE ultimately receives these public records, we’ll keep you posted on what they reveal.