General Counsel's Corner: Bias Response Teams - No Easy Answers
February 1, 2022
By: Barbara A. Lee
Over the past decade, bias response teams have proliferated on college campuses. A survey conducted in 2016 concluded that bias response teams (BRT) existed on “at least 231 campuses” across the United States.1 Motivated by concern about an increasing number of bias incidents on campus,2 which may or may not rise to the level of a violation of the institution’s nondiscrimination policy or campus conduct code, these entities typically allow a student (or less often, an employee) to report either receiving some form of biased treatment or having witnessed a bias incident against another. On most campuses, these reports may be made anonymously.
Although the laws of some states require public institutions to report bias crimes annually and to provide information to students on the institution’s policies for responding to incidents of bias,3 several public universities have been sued by a group calling itself “Speech First,” an entity that argues, in some cases successfully, that BRTs are used to suppress free speech.
How Do BRTs Operate on Campus?
BRTs were created in the last decade at both public and private institutions to respond to and support individuals who believed they had been subjected to biased treatment and often under circumstances that were not addressed by institutional policy, either because the speech or behavior was protected by the First Amendment or because the incident was not a crime. Membership of BRTs varies by institution, but often includes student conduct staff, a member of campus law enforcement, student affairs staff, mental health staff, a representative from the institution’s media relations office and a member from the diversity/inclusion office.4 Although BRTs typically do not have the power to discipline an individual responsible for an alleged bias event, some BRTs have the power to refer such an individual to student conduct or discipline offices, or to the campus police, as well as referring recipients of biased treatment to appropriate resources. Most also collect data on bias incidents and create programming to counter bias and to educate students as well.
Attitudes toward BRTs range from strong support from those who abhor the proliferation of bias events, want to reduce or eliminate them and feel that the institution’s duty is to support recipients of bias incidents, to those who reject these interventions on free speech grounds and believe that only certain viewpoints and beliefs are protected by the college. This is, of course, of particular concern at public colleges and universities, but many private institutions include freedom of speech protections in their policies, and in some states, such as California, state law affords students at private colleges the same protections for speech that apply to public institutions.5
Litigation Against BRTs
As noted above, a group called “Speech First” is funded by individuals who believe that BRTs punish students or others with conservative points of view in violation of constitutional free speech protections. To date the group has initiated six federal lawsuits against public institutions.6 Although the claims and institutional policies differ somewhat in each of these cases, the approach used by Speech First is to attack the creation and operation of the BRT and to challenge the constitutionality of the institutions’ policies on bullying and harassment, their acceptable computer use policies, and in one case, a prohibition on chalking related to political issues. The plaintiffs generally allege that these policies are overbroad and vague, pulling in speech or expressive conduct that is constitutionally protected, and that the ability of the BRT to refer incidents of biased speech or behavior to the college’s disciplinary office or campus police chills otherwise protected speech. Litigation has concluded in four of these cases, while it is still pending in two others. A brief discussion of the cases follows.7
In each of the five cases that resulted in a published opinion,8 federal trial courts dismissed the case involving the BRTs on the basis of standing, deciding that no plaintiff, nor the organization itself, provided evidence of actual harm to one or more students enrolled at that institution, and that the BRT’s lack of authority to discipline obviated harm for the plaintiffs. Two appellate courts reversed that ruling and returned the case to the trial court for determination of whether Speech First’s request for a preliminary injunction against the operations of the BRT and the objectionable policies should be issued. A second issue in three of the cases was mootness, since the three institutions had changed the policies to which Speech First objected. Although in the same three cases the trial court declared the claim against the objectionable policy as moot (because the language objected to had been changed), two appellate courts ruled that the change might not be permanent and thus the claim was not moot. The third appellate court agreed with the trial court that the group lacked standing and that the issue was moot.
The first case to reach a federal appellate court was Speech First v. Schlissel,9 brought against the University of Michigan. Speech First claimed that the Bias Response Team’s “implicit threats of punishment and intimidation” based on its referral power chilled otherwise protected speech, and the appellate court agreed. The court ruled that the BRT’s referral power created an “objective chill” for speech, and that the university’s definition of harassment and bullying was overbroad and vague. One judge dissented, noting that there was no evidence that any of the anonymous student plaintiffs had had any interaction with the BRT, that the BRT had never referred anyone to a disciplinary office or campus police and that their process was to suggest that the reporting student make a complaint to the appropriate campus office.
The second appellate opinion, Speech First v. Fenves,10 brought against the University of Texas at Austin, is similar in allegations, analysis and outcome to Schlissel. Rejecting the ruling of the trial court, the appellate panel allowed the challenge to the university’s Campus Climate Response Team to go forward, and also found that four institutional policies, including the acceptable use policy and three policies related to student conduct, were unconstitutionally vague. Although the university had removed the complained-of language from its policies, the court stated that the university had not provided a “controlling statement of future intent” (presumably from the board of trustees) and therefore concluded that the students had standing and the case was not moot.
The third appellate opinion in a case brought against the University of Illinois at Champaign-Urbana, Speech First v. Killeen,11 alleged that the university’s BRT chilled their protected speech, that No Contact directives also chilled speech and association, and that the requirement that leaflets and handbills be approved by the institution prior to distribution was unconstitutional. The university had rescinded the leaflet policy after the lawsuit was filed. In this case, differing from those involving Michigan and Texas, the appellate court upheld the trial court’s refusal to find that the students had standing and its conclusion that the leaflet issue was moot. The court noted that the Bias Assessment Response Team had no authority to discipline. There was no requirement that the individual complained about meet with the team, and there was no credible threat of chilling student speech. Furthermore, No Contact orders were only used if a conduct violation had been found by a competent university office.
A fourth case, Speech First v. Wintersteen,12 was brought against Iowa State University. The plaintiffs objected to a chalking ban involving political issues, the university’s acceptable use policy which prohibited political messages on its email system, and the Campus Climate Response System. After the university provided information to the plaintiffs that the chalking ban had been rescinded, that its acceptable use policy had been revised to remove the prohibition on its use for political emails, and that the Campus Climate Response System would not contact students accused of biased speech, the plaintiffs dropped the lawsuit.13
More recently, two district courts have addressed claims by Speech First, and both are on appeal as of the writing of this article. In Speech First v. Cartwright,14 brought against the University of Central Florida, the trial court found that the plaintiffs lacked standing to challenge the operations of the Just Knights Response Team because it had no authority to discipline and could not compel students to engage with it. It also determined that the university’s Discriminatory Harassment Policy was not overbroad. The court did, however, grant a preliminary injunction against the university’s computer policy, stating that its prohibition of “harassment” was vague and overbroad.
The sixth case, Speech First v. Sands,15 was brought against Virginia Tech, and is also on appeal. The trial court ruled that the organization lacked standing because it did not show that its members intended to engage in conduct proscribed by the challenged policies involving prohibition on bias and harassment. It rejected the plaintiffs’ challenge to the acceptable use policy because it only applied to employees, not students. But the court issued a preliminary injunction with respect to the provision in a computer use policy that did apply to students that prohibited its use for “intimidation, harassment and unwarranted annoyance,” saying that a vagueness challenge would likely succeed on the merits.
Conclusion and Suggestions16
The recent case law on BRTs suggests that their design and authority by public universities and colleges need to be carefully considered in order to survive constitutional challenge. Although the constitutional arguments would not apply to private institutions, the concept of free speech is often implicit in student codes of conduct, and could lead to breach of contract claims. The early cases involved BRTs that had the power to refer individuals who allegedly committed an act of bias to campus discipline offices or campus police. Since this function troubled several courts, the BRT could, in addition to providing support, suggest that the complaining student seek assistance from a campus office charged with responding to discrimination or conduct violations, rather than taking it upon itself to do the referral.
Secondly, the institution may wish to reconsider the name of the BRT. Although including the term “bias” provides clarity on its role, it could suggest to skeptics that the complaints it receives have been prejudged to be valid claims of bias. The names chosen by the University of Central Florida (The Just Knights Response Team) and the University of Texas at Austin (the Campus Climate Response Team) provided clarity without the use of “bias,” (although that did not insulate UT-A from liability).
Thirdly, as noted by Bhabha and Turret,17 the institution may wish to reconsider the composition of the BRT. Some of the reviewing courts pointed to the presence of administrators on the BRT who had disciplinary responsibilities, questioning whether the team was truly separate from the conduct office. And involving staff with mental health expertise may demonstrate that the BRT’s role is to support students, not to punish other students.
Bhabha and Turret also recommend a close look at the language of policies prohibiting harassment and bullying, as some of the reviewing courts took exception to words they viewed as vague. For example, the University of Michigan revised its policy to include only definitions of these terms that were included in state law.
Critics of BRTs complain that team members are not knowledgeable about First Amendment speech protections and need to be trained to understand their scope.18 Given the difficulty, at times, in knowing where the line should be drawn between protected and unprotected speech, training the BRT should provide some help in making that determination, although the assistance of legal counsel in a close case can be helpful. Furthermore, if a BRT investigates a complaint of discrimination or harassment that could lead to litigation, it would be wise to confer with institutional counsel about the nature and process of the investigation.
Higher education leaders walk a fine line between celebrating diversity and inclusion on the one hand, and encouraging open debate on our increasingly diverse campuses on the other. The Speech First cases have shone a spotlight on the on-campus struggles with preventing bias within the parameters of the First Amendment—struggles that are not likely to diminish in the foreseeable future.
1 “Campus Bias Response: A Briefing for Senior Leadership,” EAB, 2017, available at https://attachment.eab.com/wp-content/uploads/2017/10/D9AC8B9F569D4AFCA226A4D4D61C2BB8.pdf#page=4.
2 According to the National Center for Educational Statistics, hate crimes increased by 40 percent between 2011 and 2016, and between 2018 and 2019, the Southern Poverty Law Center documented 434 incidents of white supremacist flyers on college campuses. Victoria Nelson, “Addressing Racial Trauma and Hate Crimes on College Campuses,” Center for American Progress, August 19, 2019, available at https://www.americanprogress.org/article/addressing-racial-trauma-hate-crimes-college-campuses/. See also Christopher Jones & Richard Anthony Baker, “Report on the Uncivil, Hate and Bias Incidents on Campus Survey.” The LEAD Fund: Leadership Equity Access Diversity. This report concluded that most respondents to a survey administered in 2018 reported incidents of bias on campus against students, whether or not they were a crime.
3 See, for example, New York State Education Law Section 6436, which requires public institutions to “inform incoming students about bias related crime prevention measures through programs which may include workshops, seminars, discussion groups, and film presentations, in order to disseminate information about bias related crime, promote discussion, encourage reporting of incidents of bias related crime, and facilitate prevention of such incidents.” The information must include a description of “the availability of counseling and other support services for the victims of bias related crime.” And the Maryland legislature included language in its 2018 budget law requiring public colleges and universities to develop programs to prevent hate and bias incidents. See Jillian Atelsek, “Public Colleges in Maryland Must Now Develop Hate and Bias Prevention Plans. The Diamondback, April 25, 2018.
4 “Campus Bias Response,” supra note 1. See also Anti-Defamation League, “Reporting Hate-Bias Incidents on Campus,” https://www.adl.org/media/12583/download.
5 Calif. Ed. Code §94367 et seq.
6 https://speechfirst.org/court-battles/ As of the date of this article, Speech First has filed lawsuits against the University of Michigan, the University of Texas at Austin, Iowa State University, the University of Illinois at Champaign-Urbana, Virginia Tech, and the University of Central Florida.
7 For a thorough analysis of this litigation, co-authored by an attorney who defended both the University of Illinois and Iowa State University in these lawsuits, see Ishan Bhabha and Erica Turret, “Campus Bias Response Teams: Lessons from Litigation and Practical Guidance.” NACUANote Vol. 19 no. 10 (July 19, 2021). The Note also includes very helpful recommendations for institutions that have BRTs to consider to avoid legal challenges to their operations.
8 The sixth was settled when Speech First dropped the litigation.
9 939 F.3d 756 (6th Cir. 2019).
10 979 F.3d 319 (5th Cir. 2020).
11 968 F.3d 628 (7th Cir. 2020).
12 No. 4:20-cv-00002 (S.D. Iowa 3/12/20).
13 https://www.radioiowa.com/2020/03/13/iowa-state-university-reaches-settlment-in-free-speech-lawsuit/.
14 2021 U.S. Dist. LEXIS 146466 (M.D. Fla. 7/29/21).
15 2021 U.S. Dist. LEXIS 181057 (W.D. Va. 9/28/21).
16 For a thorough and thoughtful set of recommendations for avoiding legal challenges to BRTs, see Bhabha and Turret, supra, note 7. See also a brief set of suggestions for institutions with BRTs in “Caution and Tips for Bias Response Systems,” PEN America, n.d., available at https://campusfreespeechguide.pen.org/resource/tips-for-bias-response-systems/.
17 Id. at 7-8.
18 Foundation for Individual Rights in Education, “FIRE Bias Response Team Report 2017,” available at https://www.thefire.org/research/publications/bias-response-team-report-2017/report-on-bias-reporting-systems-2017/. See also Jeffrey Aaron Snyder and Amna Khalid, “The Rise of Bias Response Teams on Campus,” The New Republic, March 30, 2016, available at https://newrepublic.com/article/132195/rise-bias-response-teams-campus.
General Counsel’s Corner is a publication presented by one of Bond’s former general counsels and academic administrators of higher education institutions: Monica Barrett (Rutgers); Sandra Casey (SUNY and Siena College); Shelley Sanders Kehl (Pratt Institute); Barbara Lee (SVP for Academic Affairs at Rutgers); Sarah Luke (Governors State University); Gail Norris (University of Rochester); and Jane Sovern (CUNY). In each issue, a different attorney from this team will share with you recent legal developments, tips, strategies and useful information to assist you with your daily work on campus.
This post is brought to you by Barbara A. Lee, Ph.D. in our New York City office. Barbara previously served as Senior Vice President for Academic Affairs at Rutgers University where she continues on as a Distinguished Professor of Human Resource Management. She is a former director for the National Association of College and University Attorneys (NACUA), a prolific author, speaker and editor. Barbara is also the former chair of the New Jersey Bar Association’s Higher Education Committee.
