By Matt Welsh

A decision from the Sixth Circuit Court of Appeals ruled the Michigan Bias Response Team would produce an “objective chill” and quell on-campus speech, violating the First Amendment. The ruling could have implications for the OU Bias Response Committee, which has similarities to Michigan’s now-defunct Bias Response Team.

The September 2019 decision came from a lawsuit brought by Speech First, a free speech advocacy organization, against Mark Schlissel, in his capacity as the University of Michigan president, challenging the University of Michigan’s Bias Response Team. According to the suit, Michigan’s response team acted as an “informal resource to support students who feel they have experienced bias in the University community, to refer them to other campus resources as appropriate, and to educate the University community with respect to issues related to bias.”

The Michigan Response Team did not have formal power to punish bias incidents. However, the suit claimed, the response team could refer potential bias incidents to police. Additionally, the response team invited those involved in bias incidents to speak with the team. The Sixth Circuit’s opinion said the power of referral and the implicit consequences of refusing a voluntary appearance when invited produced an “objective chill” over speech.

The case was settled after it was remanded to the district court, according to MLive. The appeal to the Sixth Circuit came after District Court Judge Linda V. Parker initially denied Speech First’s request for a preliminary injunction, which would have stopped the University of Michigan’s use of the Bias Response Team. In the denial of the preliminary injunction, Judge Parker wrote the chilling of speech was subjective and agreed with the University of Michigan that the response team was not a disciplinary body.

“The trial judge didn’t think that Speech First had any standing in this. It’s a three-judge panel of the Sixth Circuit and two of them disagreed with the trial judge,” said Joey Senat, associate professor at Oklahoma State University’s School of Media and Strategic Communications.

“In other words, they agreed with Speech First and said, ‘We think it does have standing’… It had to do with whether (Speech First’s) members could face punishment with this.”

The eventual settlement between Speech First and the University of Michigan ended the Bias Response Team but allowed for a Campus Climate Support body. According to the Campus Climate Support website, the “CCS is not a disciplinary body, cannot impose discipline, and does not require participation in any aspect of CCS’s work.”

The decision could have implications for the OU Bias Response Committee.

Michigan’s response team shared similarities with OU’s response committee, a part of the OU Office of Diversity and Inclusion. The purpose of the committee, according to its website, is to “evaluate and deliberate on bias and discrimination reports.”

The University of Michigan’s Bias Response Team did not have formal punishment abilities. However, the Sixth Circuit found the response team’s ability to make referrals to the police about reported conduct was a consequence that objectively chilled speech.

OU’s Bias Response Committee website lists its members. Members include Dianne Brittingham, director of residence life, Sherri Irvin, associate dean of the graduate college, and Elizabeth Woollen, chief of OU police.

Adam Steinbaugh, director of the Individual Rights Defense Program for the Foundation for Individual Rights in Education (FIRE), said the police chief’s presence on the committee may portray a purpose of punishment of speech.

“I don’t think it’s going to help the way a university presents a bias response team in a non-punitive manner if they have police sitting on the team itself,” Steinbaugh said. “I think that if you are a student and you see a bias response team and there’s a police officer on it, that’s going to sound a lot more like the team has a law enforcement or punitive purpose and not an educational or resource purpose.”

When asked about the implications of the Michigan case, the University of Oklahoma released a statement on the Bias Response Committee:

“OU’s Bias Response Committee plays a critical, but advisory, role in developing strategies to improve campus climate and support diversity and inclusion efforts on campus. OU requests feedback on all matters affecting campus climate to accurately monitor the climate to make appropriate changes – the Bias Response Committee helps in achieving this goal. The Office of Institutional Equity evaluates reports of discrimination and harassment – nonconfidential reports that are not actionable are referred to the Bias Response Committee for follow-up. The Student Code of Rights and Responsibilities acknowledges that the University cannot punish or censor student speech based on its content. However, speech that would potentially harm members of our community, including fighting words, incitement, true threats and proscribable harassment or other speech acts unprotected by the First Amendment, are prohibited.”

Senat said Woollen’s presence on OU’s Bias Response Committee clashes with the Sixth Circuit’s decision.

“If the police chief is on it, and these other vague terms (on the committee website), seem to fall closely to what the Sixth Circuit disagreed with,” Senat said.  “In other words, that can have a chilling effect on speech when it seems to have a threatened punishment. If the response team submits a report to an office or somebody that can expel a student or arrest a student for some perceived violation of speech, then I think that would be what the Sixth Circuit was frowning on.”

The decision from the Sixth Circuit is in a separate jurisdiction than the Tenth Circuit where the University of Oklahoma is located. However, Senat believes the decision could affect the Tenth Circuit.

“Of course, it’s not binding on the Tenth Circuit, which we’re in, but it can certainly be persuasive to judges and certainly a free-speech group would use it in an argument,” Senat said. “The reasoning that the majority of that three-judge panel used would be in their favor.”

Steinbaugh said the Michigan decision will influence universities throughout the country and inspire inspection of bias response teams.

“I think (the decision) requires universities to look at how they are framing and how they are presenting their bias response teams,” Steinbaugh said. “Are they presenting it as a solution that is going to entail initiating investigations or imposing discipline on students? If so, that is going to run that into questionable First Amendment territory. Are they instead, creating systems so that universities can respond with resources to the impacted students? That might be a better way to address it.”

“There is a long tradition on American campuses of speaking out against bias or some back and forth in regard to what can or can’t you say about these various marginalized groups,” said Sigal Ben-Porath, a professor in the literacy, culture and international education division at the University of Pennsylvania. “This is by no means new. I think what is newer is, first of all, we have more diverse campuses.”

As a part of this new diverse atmosphere, Ben-Porath said the response to bias on campus has changed.

“There is more attention being paid to it and some of this attention has to do with the greater diversity and the greater visibility of diversity on college campuses,” Ben-Porath said.

“Whereas historically student and some others were mostly focusing on the permissibility of speech… This was more like the focus during the Vietnam War or some prior eras when there was more intense attention given to this matter,” Ben-Porath said. “Now more of the attention is given to what are we allowed to say, what is permissible on a college campus and what is the impact. This is one change that the students are just thinking more about the impact of words.”

Ben-Porath said colleges in the past, and sometimes currently, say they do not have much leverage to counteract racist or heinous speech. Ben-Porath said this reasoning has not met today’s expectations.

“This is insufficient for many students, and I think for good reason. They come back and they say, ‘Wait, fine it’s protected but see what it’s doing, see the impact.’” Ben-Porath said. “Campuses are grappling to figure out more ways to maintain the protection for legally protected speech but still do something more, because they recognize as a result of protests by students, that it is not enough to say, ‘Stop complaining, it’s legally protected speech. There’s nothing we can do.’ It’s not enough if you want to maintain an inclusive learning environment.”

Ben-Porath said these higher expectations on campuses are the result of changing norms on campus.

“The norms are evolving, as we are seeing. There is a generational change in the attention that the students are giving to the need to attend the concerns or the marginalization or the opportunities afforded to various student groups on campus,” Ben-Porath said. “I think the changing norms are reflecting a growing commitment to realizing democratic values such as inclusion and equality in the younger generation of students.”

Steinbaugh said that universities have a responsibility to students to facilitate an inclusive atmosphere.

“I think that universities have an obligation, not just legally, to address situations that are going to make it difficult for students to live and learn in a positive campus environment. A university should not be faulted for listening to students who say, ‘Hey, these are the situations that I am encountering, what are you going to do about that or how can you help me?’” Steinbaugh said. “The question then becomes is the university able to respond to those complaints in a manner consistent with their First Amendment obligations.”

However, Senat said the First Amendment was geared to protect the very speech that bias response committees face.

“The U.S. Supreme Court has even said public university campuses are a marketplace of ideas. And in that marketplace are going to be ideas expressed that make people uncomfortable or they outright hate, that they disagree vehemently with an idea expressed by someone else,” Senat said. “That’s what happens in a marketplace of ideas. That’s what the First Amendment is intended to protect. We don’t need it for speech that’s popular that everybody agrees with. We need it for speech that’s often radical and makes people angry.”

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