Recent pro-Palestinian and pro-Israel demonstrations at universities across the country have thrust the issue of campus free speech into the spotlight, but an advocacy group has been quietly working the legal system to protect students’ right to express themselves without fear.
Speech First has won a series of court battles over schools’ attempts to restrict students’ speech with bias response teams and other monitoring activities. It often accuses schools of exhibiting bias against conservative or religious speech and now has Indiana University, one of the nation’s top research schools, in its sights.
“BRTs have increased on campuses over the last decade. In more recent years since COVID, we have seen them more widely used and advertised,” said Speech First Executive Director Cherise Trump.
“Students are encouraged to report on one another anonymously, and the way universities define reportable ‘bias incidents’ ranges from incredibly broad and vague definitions that would encompass all sorts of constitutionally protected speech to specifying that ‘microaggressions, mean jokes, stereotyping, offensive speech’ are all reportable offenses,” said Ms. Trump, who is not related to former President Donald Trump.
In a lawsuit against Indiana University filed in May, Free Speech claims that the university’s bias police board, which reviews allegations of biased student speech, violates the First Amendment.
Under the university’s bias incident policy, school officials investigate allegations of bias on or off campus, including on social media, and can initiate formal disciplinary proceedings against students.
According to the complaint, a bias incident is defined as “any conduct, speech, or expression, motivated in whole or in part by bias or prejudice meant to intimidate, demean, mock, degrade, marginalize, or threaten individuals or groups based on that individual or group’s actual or perceived identities.”
“Living up to their Orwellian name, bias response teams encourage students to monitor each other’s speech and report incidents of ‘bias’ to the University (often anonymously). ‘Bias’ is defined incredibly broadly and covers wide swaths of protected speech; in fact, speech is often labeled ‘biased’ based solely on the listener’s subjective reaction to it,” the lawsuit reads.
It said incidents reported on campuses with similar monitoring schemes include writing an article about “safe spaces,” tweeting #BlackLivesMatter and writing “Build the Wall” in chalk on a sidewalk.
A spokesperson for Indiana University said the school doesn’t comment on pending litigation.
Speech First has succeeded in striking down similar policies at other schools. Ms. Trump said her organization has won or settled challenges to bias response teams at Oklahoma State University, the University of Central Florida, the University of Texas at Austin, the University of Michigan and Virginia Tech.
After Speech First took the Virginia Tech case to the Supreme Court, the school eliminated its bias response team. The 4th U.S. Circuit Court of Appeals had ruled against Speech First, reasoning it did not have standing or sufficient legal injury to sue.
The high court did not set oral arguments, but Justices Clarence Thomas and Samuel A. Alito Jr. said it should. In a dissent joined by Justice Alito, Justice Thomas said he had “serious concerns” about bias response policies.
“This petition presents a high-stakes issue for our Nation’s system of higher education,” the conservative justice wrote. “Until we resolve it, there will be a patchwork of First Amendment rights on college campuses: Students in part of the country may pursue challenges to their universities’ policies, while students in other parts have no recourse and are potentially pressured to avoid controversial speech to escape their universities’ scrutiny and condemnation.”
The 5th, 6th and 11th U.S. Circuit Courts of Appeals have ruled that bias response teams chill student speech. The 4th and 7th Circuits have reasoned that they do not.
More than 450 schools are estimated to have these review boards, though they employ different procedures and standards.
George Washington University has a Bias Incident Response Team, but officials from the school’s diversity, equity and community engagement office cannot sanction anyone. They can support students who feel targeted and refer them to available campus resources and units that would initiate formal investigations.
Georgetown University, just down the road in the nation’s capital, allows school officials from its bias response team to investigate people accused of bias incidents and even lead to university sanctions.
Genevieve Lakier, a law professor at the University of Chicago, said she thinks the issue will return to the Supreme Court. She noted that college policies regarding bias response teams vary widely.
She said schools have designed these bias boards to permit free speech while responding to demands surrounding hateful or offensive speech, which is protected under the First Amendment.
“This is maybe a response to the tricky dilemma,” Ms. Lakier said. “Some of the devil is in the details here.”
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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