How to Address Campus 'Bias Incidents' Without Restricting Free Speech

Such discourse may be unpleasant and off-putting, but campus community members should use their own voices to respond, not call for disciplinary action and the silencing of others.
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Ask yourself: What do you consider to be a "bias incident" that you encounter in your daily life? Is it an insensitive remark about another person's culture or nationality? Is it a comment during a political conversation that could be construed as racist or sexist? Is it a viewpoint that opposes another person's religious beliefs?

If you answered "yes" to any of those questions, the speech you are referencing is most likely protected by the First Amendment. Yet at too many colleges and universities, the same expression can -- and does -- subject students and faculty members to censorship and punishment. Such discourse may be unpleasant and off-putting, but campus community members should use their own voices to respond, not call for disciplinary action and the silencing of others.

At the Foundation for Individual Rights in Education (FIRE, the nonpartisan, nonprofit organization where I work), we have long advocated against overbroad, poorly written, and inconsistently enforced "bias incident" policies on college campuses. After all, the university setting is the quintessential marketplace of ideas, where students and professors should be free to explore and debate a wide range of viewpoints, even -- or perhaps especially -- those that they find offensive or abhorrent.

Now, of course, if your definition of a "bias incident" involves unlawful conduct such as discrimination and hostile environment harassment, that's a different story. The First Amendment certainly doesn't protect such conduct, and colleges and universities have a paramount legal and moral obligation to address this type of behavior.

The problem is that very few university bias incident policies or protocols stay limited to such unlawful conduct. Instead, they ban considerable amounts of constitutionally protected expression. Consider, for example, Central Michigan University's "Bias Incident Response Team" policy, which defines bias incidents to include "expressions of hate or hostility," whether through "words, signs [or] symbols." The policy adds:

Anytime anyone in the CMU community feels belittled, disrespected, threatened, or unsafe because of who they are, the entire university community is diminished. That's why it's important to report all bias incidents - even those intended as jokes. If you have observed or experienced a bias incident, it should be reported as soon as possible.

That's overstating things quite a bit. "Anytime anyone in the CMU community feels belittled" or "disrespected," the incident should be reported to the authorities, even in the case of a joke? Imagine the chilling effect on campus expression when students come across this provision in CMU's policy materials.

Nor is CMU alone in promulgating such policies. Bates College in Maine defines a bias incident as "any event of intolerance or prejudice, not involving violence or other criminal conduct, intended to threaten, offend or intimidate another" (emphasis added) on the basis of listed personal characteristics such as race, religion, and gender. As if to further make clear that the policy is intended to reach protected speech that merely offends another, Bates provides such purported examples of bias incidents as "sexist jokes or cartoons," "hate speech," and "disparaging remarks on social media sites."

Likewise, Williams College in Massachusetts maintains a "Bias Incident Reporting" protocol in which listed examples of bias incidents include "[t]elling jokes based on a stereotype," "[n]ame-calling," "[a]voiding or excluding others," and even "[d]isplaying a sign that is color-coded pink for girls and blue for boys."

These and many other examples of poorly written bias incident policies and protocols can be found in FIRE's Spotlight Speech Codes Database. The chilling effect from these absurd policies is real; what rational student isn't likely to self-censor rather than risk disciplinary action? Moreover, FIRE has witnessed these policies enforced to silence, investigate, and punish student expression in cases at Dartmouth College, Rutgers University, Tufts University, and many other institutions.

There is good news, however. Universities that wish to address unlawful conduct falling outside the protections of the First Amendment can do so by simply following the law instead of maintaining these overbroad speech codes. Narrowly written policies aimed at hostile environment harassment, true threats, disruptive behavior, and other unprotected conduct will better serve all members of the campus community.

And students don't need to fear just because their institution scraps a bias incident policy. If students witness or are targeted by biased or prejudiced speech, they are perfectly capable of using their own voices to speak out against racism, sexism, and other forms of intolerance. Indeed, student activism and protests across the country over the past year have demonstrated this to be the case. Students can, and should, use their strength in numbers to expose wrongheaded viewpoints for being wrong. They can, in doing so, make clear that their campus communities are welcome places for all.

They just don't need overregulation of speech and the restriction of First Amendment rights in order to reach those ends.

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