The University of Michigan just rescinded a school policy
and settled a case that will allow students to have an opinion without fear of
being punished for it.
Last week, the university agreed to dissolve its Bias
Response Team (BRT), a shocking form of censorship practiced by colleges around
the U.S. Schools with BRTs investigate students based on reports—even anonymous
reports—from individuals over something a student may have said or done that the
accuser considers “bothersome.” Students
could have faced formal discipline because of such a report.
Speech First, a
Washington, D.C.-based free speech advocacy and litigation organization, sued
the University of Michigan last year and said the BRT “can
capture staggering amounts of protected speech and expression” and
“the most sensitive student on campus effectively dictates the terms under
which others may speak.”
“Sadly, there are hundreds of schools across the country
that maintain BRTs – and dozens more consider adding them each year,” said
Speech First President Nicole Neily via email. “I think it’s virtually
impossible to have a program in place where students are encouraged to
anonymously report each other – resulting in being called in to a meeting – and
NOT chill speech.”
The U.S. Department of Justice agreed and a filed a
statement of interest in the case in June 2018. The agency cited
a problem with BRTs that appears regularly in descriptions of such speech
codes—that BRTs “chill” speech, preventing the exchange of ideas and
interfering with the pursuit of truth. “The United States…argues that the
University’s Bias Response Policy chills protected speech” and “offers no
clear, objective definitions of the violations,” the agency said in its press release.
As a
result, Speech First’s victory should have schools reconsidering their BRTs. “I
hear from students on a regular basis about their concerns with
similarly-themed programs,” Ms. Neily said. “I’m surprised there’s not more
pushback against them from faculty, however – because often, BRT complaints are
filed about professors based on what’s being taught in class.”
The
University of Michigan had already adjusted its policies after earlier court
rulings criticized the speech code, but Speech First argued the school left
intact some damaging parts of the BRT. Ms. Neily says, “The 6th
Circuit called out the school for changing the policies hastily after we filed,
asserting that ‘timing of the University’s change also raises suspicions that
its cessation is not genuine’ – and we couldn’t agree more.”
“In
addition, the court suggested that just because a student hasn’t personally
been prosecuted by the university (yet), they could still challenge the program
for chilling their speech – in fact, the decision noted that ‘The lack of
discipline against students could just as well indicate that speech has already
been chilled,’” Ms. Neily says.
Litigation
that puts an end to such policies, then, matters for students’ daily lives. Ms.
Neily explains: “Being a student on campus now is holistic – it’s not just
class and dorms, but now 24/7 student life programming. And in turn, that
provides a lot more opportunities for social engineering.” As research from the
Goldwater
Institute, Heritage
Foundation, and others has demonstrated, universities are hiring
non-instructional, administrative staff at a rapid clip. Ms. Neily agrees and says,
“The growth in mid-level bureaucratic departments at universities has exploded
over the past few decades.” As a result, there are many opportunities today for
students to express themselves and for universities to create unconstitutional
regulations for such expression.
Ms.
Neily says, “There is a profound misunderstanding of what free speech and the
First Amendment protect and why those protections are important (polling
reflects this, it’s not just me being critical of college students!).”
But
how do we win back the hearts and minds of students, faculty, and
administrators on the necessity of protecting everyone’s right to listen and be
heard? “It’s hard to be confronted with other opinions, and to have to defend
your point of view. But it’s also constructive – it helps you to better
articulate your ideas, refine your strongest arguments, and develop a thicker
skin,” Ms. Neily says.
“It’s going to take a lot of work from a lot of different stakeholders,” including faculty, boards of trustees, and alumni, she says. But for Speech First and the students they represent, the effort is worth it.
Jonathan Butcher is a Senior Fellow at the Goldwater Institute.
