There was a time, in the recent past, when universities were in the grip of a kind of speech-code fever. Even as recently ten years ago, after a wave of litigation striking down campus speech regulations, the vast majority of American colleges and universities still kept clearly unconstitutional speech codes on the books. They kept losing in court, yet they still couldn’t quit their codes.
Fast-forward a decade and that’s changed. Between 2009 and 2019, the portion of surveyed American universities with what the Foundation for Individual Rights in Education classifies as “red light” speech codes has shrunk from 74.2 percent to a mere 28.5 percent, and a total of 17 states have enacted some form of campus free-speech legislation. But the impulse to censor dies hard, and some schools have been nothing if not creative in their efforts to control speech without explicitly and clearly running afoul of the law. Witness, for example, the phenomenon of the “bias-response team.”
While the system varies from university to university, in general a bias-response team represents an institutional effort to identify alleged student bias and bigotry and eliminate it through some form of reeducation. Students report speech they find discriminatory or otherwise problematic, a university team investigates the “incident” — including sometimes meeting with the alleged offender — and then often creates a report describing the events. Sometimes bias-response teams can and will refer conduct to university disciplinary officials or university police if they feel more substantial punishment is warranted.
Last year, a group called Speech First filed an important lawsuit against the University of Michigan, challenging the content of the university’s bullying and harassment policy and its bias-response team’s procedures. The district court denied Speech First’s request for an injunction, holding in part that the group lacked standing to challenge the policy. Under the law, a court will not grant standing to a plaintiff in the absence of what’s called an “injury in fact,” and the question was whether the members of Speech First had suffered an “objective chill” to their free-speech rights or a mere “subjective chill.” For the chill to be objective, there must be proof that a “concrete harm” (enforcement of a statute or regulation) “occurred or is imminent.” If the plaintiff is concerned merely with the defendant’s “data-gathering activity,” and can’t meet the “concrete harm” standard, then the chill is subjective.
Make sense? To put it as plainly as possible, Michigan argued that the courts should move along — that there was nothing to see here because the bias-response team itself couldn’t punish anyone. Speech First said that actually, there was a problem, because the bias-response process itself could act as a form of punishment, and the team could still refer incidents to those with power to explicitly punish students.
Yesterday, in a decision with national implications, the Sixth Circuit Court of Appeals sided with Speech First, reversed the district court and ordered it to reconsider the group’s request for an injunction. Its ruling recognized the obvious power of the bias-response team:
The Response Team’s ability to make referrals — i.e., to inform OSCR or the police about reported conduct — is a real consequence that objectively chills speech. The referral itself does not punish a student — the referral is not, for example, a criminal conviction or expulsion. But the referral subjects students to processes which could lead to those punishments. The referral initiates the formal investigative process, which itself is chilling even if it does not result in a finding of responsibility or criminality.
This is quite right: There isn’t a student alive who wouldn’t find the bias-response team’s investigative process intimidating. But the problem extends beyond the team’s ability to refer students for punishment; it reaches to the team’s power to request a meeting with an accused student, as the court went on to explain:
Additionally, the invitation from the Response Team to meet could carry an implicit threat of consequence should a student decline the invitation. Although there is no indication that the invitation to meet contains overt threats, the referral power lurks in the background of the invitation. It is possible that, for example, a student who knows that reported conduct might be referred to police or OSCR could understand the invitation to carry the threat: “meet or we will refer your case.” Additionally, the very name “Bias Response Team” suggests that the accused student’s actions have been prejudged to be biased. The name is not the “Alleged Bias Response Team” or “Possible Bias Investigatory Team.” It is the “Bias Response Team.”
The dissent argues that Speech First did not present any evidence of actual or imminent interaction with the bias response team, but — as the majority notes — that’s the entire point of the chilling-effect analysis. When the spectral threat of government action looms, private actors will refuse to engage in any speech that could even potentially result in state investigation.
The university will now be required to defend its response team on the merits, and it is highly likely to lose. But even this standing ruling alone is likely to spawn additional litigation, including in different federal circuits. Once again, universities will find themselves on the defense — at least until the day comes when they at long last rediscover their true historical purpose, to serve, in the court’s words, as “guardians of intellectual debate and free speech.”