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A Victory for Free Speech on Campus: An Interview with Speech First’s Nicole Neily

November 5, 2019

The University of Michigan just rescinded a school policy and settled a case that will allow students to have an opinion without fear of being punished for it.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.



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