Lawsuit: U. Michigan speech code and Bias Response Team “profoundly chill free speech and open discourse”

Lawsuit: U. Michigan speech code and Bias Response Team “profoundly chill free speech and open discourse”

If you have not heard of Bias Response Teams, then you haven’t been around campus in the last decade.

These teams, often referred to at BRTs, are the equivalent of SWAT teams standing by to enforce campus speech and conduct codes. All of the problems we have documented with campus sexual assault kangaroo courts apply equally to BRTs – the teams enforce often vague standards highly dependent on how a complainant feels, there is an opaque process with little due process, and the results often track accepted campus political correctness rather than a search for the truth. Yet the punishments can cause lasting damage.

A 2017 Report by the Foundation for Individual Rights in Education (FIRE) summarizes the role played by BIRTs (bold in original):

Over the past several years, the Foundation for Individual Rights in Education (FIRE) has received an increasing number of reports that colleges and universities are inviting students to anonymously report offensive, yet constitutionally protected, speech to administrators and law enforcement through so-called “Bias Response Teams.” These teams monitor and investigate student and faculty speech, directing the attention of law enforcement and student conduct administrators towards the expression of students and faculty members….

FIRE discovered and surveyed 231 Bias Response Teams at public and private institutions during 2016. The expression of at least 2.84 million American students is subject to review by Bias Response Teams. While most students in higher education do not yet appear to be subject to bias reporting systems, we believe that the number of Bias Response Teams is growing rapidly….

Teams tend to cast a wide net when defining “bias.” Almost all use categories widely found in discrimination statutes (race, sex, sexual orientation, etc.), while others investigate bias against obscure categories, such as “smoker status,” “shape,” and “intellectual perspective.” A significant minority include political affiliation or speech as a potential bias, inviting reports of and investigations into political speech by law enforcement and student conduct administrators.

In responding to reports regarding this wide array of protected expression, administrators are frequently armed with vague or overly broad rules granting them leeway to impose sanctions for speech they dislike….

Bias Response Teams, when armed with open-ended definitions of “bias,” staffed by law enforcement and student conduct administrators, and left without training on freedom of expression, represent an emerging risk to free and open discourse on campus and in the classroom. Bias Response Teams create—indeed, they are intended to create—a chilling effect on campus expression. Even if a Bias Response Team does not have the power to take punitive action, the prospect of an official investigation may make students and faculty more cautious about what opinions they dare to express.

A 2016 article in The New Republic by two Carleton College professors highlighted the problem with inconsistent or non-existent standards and the chilling effect on speech, The Rise of “Bias Response Teams” on Campus:

BRTs are rapidly becoming part of the institutional machinery of higher education, but have yet to face any real scrutiny. As Carleton College faculty members committed to “rigorous studies in the liberal arts disciplines” and the vitality of diverse campus communities, we believe that the proliferation of BRTs is a grave mistake. They degrade education by encouraging silence instead of dialogue, the fragmentation of campuses into groups of like-minded people, and the deliberate avoidance of many of the most important—and controversial—topics across all academic disciplines. They are inherently anti-intellectual enterprises, fundamentally at odds with the mission of higher education. And ultimately they will undermine a bedrock principle of the modern university: that more diversity leads to better learning….

Anyone can report a “bias incident,” including “faculty, staff, students, as well as parents, alumni and visitors to campus.” Reporters may be “victims,” “witnesses” or even “third parties”—and they may choose to remain anonymous. That opens the door to hoaxes. Indeed, more than 20 percent of all the bias incident reports filed at one university during a single academic year were “pranks,” the investigation of which “occupied a great deal of time and attention for multiple staff members and senior level administrators.”

We do not want our campuses overrun with eager “see something, say something”“student informants.”….

A new lawsuit is challenging BRTs at U. Michigan by a group called Speech First. What is Speech First? Robby Soave at Reason described the group in March 2018:

A brand new legal organization has joined the fight to defend free expression on college campuses.

Speech First, which plans to sue universities for violating students’ free speech rights, announced its arrival on Wednesday. Its president is Nicole Neily, a former executive director of the Independent Women’s Forum and manager of external relations for the Cato Institute.

“When students’ speech rights on campus are violated, it’s tough to fight back,” Neily said in a statement. “A lone student doesn’t stand a chance against a school with a huge endowment and an army of lawyers. It’s a real David versus Goliath situation. That’s why Speech First was created.”

Speech First is a membership organization for students, faculty, parents, alumni, and concerned citizens. Members pay a one-time $5 fee, which connects them to a network of people “who are fighting to preserve the freedom of speech on college campuses, according to the organization’s website.

In the future, the group will be filing lawsuits in defense of students’ First Amendment on specific campuses, in the same vein as the work being done by the Foundation for Individual Rights in Education and the Alliance Defending Freedom. There are certainly enough free speech violations on campuses each year to justify the existence of multiple legal defense groups concentrated on the issue….

You can view U. Michigan’s bias reporting website here, and reporting form here. U. Michigan also has an infographic describing the process.

The Wall Street Journal reports on the lawsuit just filed by Speech First:

‘The most important indication of bias is your own feelings,” the University of Michigan advises students. It then urges them to report on their peers, anonymously if they prefer, “and to encourage others to report if they have been the target or witness of a bias incident.”

The Bias Response Team is there, ready to investigate and mete out justice. More than 200 American campuses have established similar administrative offices to handle alleged acts of “bias” that violate no law. A federal lawsuit filed Tuesday against the University of Michigan is the first in the nation to challenge the constitutionality of these Bias Response Teams.

The case is brought by Speech First, a membership group primarily made up of college students, alumni and their families. It alleges that Michigan’s student code and Bias Response Team violate the First Amendment by threatening to penalize protected expression. “Even apart from any punishments that may result at the end of the process,” the lawsuit argues, the team’s existence has a chilling effect on speech. Speech First seeks a permanent injunction prohibiting the Bias Response Team from investigating students.

Speech First issued a press release announcing the lawsuit outlining the legal basis:

The University of Michigan has a disciplinary code that prohibits “harassment” and “bullying,” and increases the penalties if such actions are motivated by “bias.” As used, these concepts capture staggering amounts of protected speech and expression given that Michigan defines harassment as “unwanted negative attention perceived as intimidating, demeaning, or bothersome to an individual.” Worse still, Michigan has created a Bias Response Team that receives complaints of “bias” and “bias incidents” from offended students and is tasked with investigating and punishing those who commit offenses.

More than 150 reports of alleged “expressions of bias”—through posters, fliers, social media, whiteboards, verbal comments, classroom behavior, etc.—have been investigated by the university’s bias response team since April 2017. According to Michigan, “bias comes in many forms,” can be intentional or unintentional, and “can be a hurtful action based on who someone is as a person.” In the school’s words, “the most important indication of bias is your own feelings.” As a result, a student whose speech is seen by another student as hurtful to his or her feelings may receive a knock on the door from a team of school officials threatening to refer the student for discipline unless he or she submits to “restorative justice,” “individualized education,” or “unconscious bias training.”

In light of these policies, Speech First members enrolled at Michigan have abstained from speaking on topics including immigration, identity politics, and abortion because they fear their speech will be anonymously reported as offensive, biased, and/or hateful to university authorities through the bias response system. The complaint alleges that these hopelessly vague policies chill student speech and expression – a clear First Amendment violation.

Speech First asserts that the lack of clear and meaningful standards in both the school’s speech code and bias response system present a serious risk that it will be enforced in an arbitrary or discriminatory manner and may be used to target speech based on a speaker’s viewpoint. In addition, the subjective nature of both defining and enforcing “bias incidents” through the bias response team renders the program functionally unconstitutional.

The Complaint (pdf.)(full embed at bottom of post), takes particular issue with the vagueness of the disciplinary code:

31. The effect of these amorphous prohibitions on “bullying,” “harassment,” and “bias-motivated misconduct” is to profoundly chill free speech and open discourse at the University.

32. A student who voices a controversial or unpopular opinion—or who seeks to use humor, parody, or satire when discussing sensitive topics—could face severe punishment up to and including expulsion if even one other student perceives that speech to be “demeaning” or “bothersome.” Put differently, students must be certain before speaking that their words will not be perceived as offensive by even the most sensitive student on campus.

33. Many students will inevitably choose not to speak—or to speak less forcefully about controversial topics—rather than face the risk of disciplinary proceedings and punishment if another student takes offense at their words and files a complaint alleging violations of the Statement’s ban on “bullying,” “harassment,” and “bias-motivated misconduct.”

The Complaint then details the role of the BRT:

34. The University has further supplemented the bullying/harassment provisions of the Statement with a “Bias Response Team” (BRT).

35. The BRT is comprised of University administrators and law enforcement. It also may include students and “community representatives who serve the U-M community.” The BRT is tasked with managing “the response and management of bias incidents.”

36. Like the definitions of harassment and bullying in the Statement, the University has adopted an extremely vague, open-ended, and subjective definition of bias that can encompass a wide array of conduct, including speech and expression protected by the First Amendment.

37. The University defines “bias” as “a pre-formed negative opinion or attitude toward a group of persons who possess common physical characteristics, such as skincolor; or cultural experiences, such as religion or national origin.” Such “bias,” according to the University, “often stems from fear, misunderstanding, hatred, and stereotypes, and may be intentional or unintentional.”

38. The University’s definitions of “bias” encompass countless instances of protected speech and expression on all manner of topics. Under the plain text of these definitions, a student may be deemed to have acted with “bias” if, for example, she gives a speech sharply criticizing the Catholic Church and its adherents for not allowing women to become priests; this student has expressed a “negative opinion” or “attitude” about a certain group of people based on their “cultural experience” of religion.

* * *

64. The BRT has a profound chilling effect on speech and expression at the University.

65. Based on a vague and highly subjective definition of “bias,” any student who offers an opinion that may be deemed by another student to be “hurtful” to his or her “feelings” risks an investigation from the University’s disciplinary apparatus and the potential for punishment ranging from “restorative justice” and “individual education” to formal disciplinary action. The inevitable result is that many students will be deterred from speaking at all, especially on controversial topics that another student may find “hurtful” or “offensive.”

66. The mere existence of the BRT mechanism chills protected expression even apart from any punishments that may result at the end of the process. The University has created and promoted a system in which students can file anonymous reports of “bias” under an amorphous definition based on anything that harms their “feelings,” which will then lead a team of University officials to spring into action to investigate. Students voicing controversial or unpopular opinions, or seeking to engage in humor, satire, or parody, may credibly fear that the BRT will be summoned in response to their speech and that they will be forced to defend themselves against accusations of “bias.” The prospect of facing such an investigation will inevitably lead many students to refrain from speaking altogether, to articulate their views less forcefully, or to steer clear of controversial topics. This chilling of protected speech and expression will exist regardless of whether a student is ultimately exonerated at the end of the BRT process.

The Complaint then spends a lot of time detailing the chilling effect on speech on campus, including as to specific students (identified only as Student A, etc.).

The following causes of action are asserted:

COUNT I
Violation of the First Amendment
(Harassment/Bullying Speech Code)

COUNT II
Violation of the First and Fourteenth Amendments – Void-for-Vagueness
(Harassment/Bullying Speech Code)

COUNT III
Violation of the First Amendment
(Bias Response Team)

COUNT IV
Violation of the First and Fourteenth Amendments – Void-for-Vagueness
(Bias Response Team)

COUNT V
Violation of the First Amendment – Prior Restraint of Speech
(Bias Response Team)

The following relief is sought:

A. A declaratory judgment that the Statement’s prohibitions on
“harassment” and “bullying”—and its recently adopted amendments
prohibiting “bias-related misconduct”—violate the First and Fourteenth
Amendments;
B. A declaratory judgment that the BRT and its prohibitions on “bias” and
“bias incidents” violate the First and Fourteenth Amendments;
C. A permanent injunction prohibiting Defendants from taking any actions
to investigate, threaten, or punish students for violations of the
Statement’s prohibitions on “harassment,” “bullying,” and “bias-related
misconduct”;
D. A permanent injunction prohibiting Defendants from using the BRT to
investigate, threaten, or punish students (including informal punishments
such as “restorative justice” or “individual education”) for “bias
incidents”;
E. A preliminary injunction granting the relief specified above during the
pendency of this action;
F. Plaintiff’s reasonable costs and expenses of this action, including
attorneys’ fees, in accordance with 42 U.S.C. 1988 and all other applicable
laws; and
G. All other further relief to which Plaintiff might be entitled.

In a statement to the Wall Street Journal (see link above), U. Michigan denied any chilling of speech:

University spokeswoman Kim Broekhuizen said the Bias Response Team has operated “for a number of years, and we have certainly not seen it chill speech here.”

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Speech First v. U. Michigan – Complaint by Legal Insurrection on Scribd

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