Opinion: Bias response teams chill free speech on campus

Jonathon Butcher

The University of Michigan settled a free speech-related lawsuit last October. So is the debate about speech on campus over?

Not quite.

Last fall, UM officials reached a settlement with Speech First in a lawsuit challenging the school’s Bias Response Team, a bureaucratic animal that can investigate students and professors based on anonymous reports of something he or she may have said.

Speech First, a membership association representing students who say their First Amendment rights have been violated on campus, won a significant victory: UM agreed to disband the team and revise the school’s definitions of “harassment” and “bullying.”

The U.S. Department of Justice said the school’s policy had a chilling effect on protected speech, and Speech First President Nicole Neily told me in an interview that there are hundreds of colleges around the U.S. with such speech codes, making UM’s settlement an example for the nation.

Yet state policymakers must continue efforts to protect expression in the state university system because UM officials are hardly contrite. A university representative told the UM University Record that the settlement made it “abundantly clear” that the lawsuit was unnecessary and maintains that “diversity of thought will continue to flourish on our campus.”

Not exactly an apology.

Michigan lawmakers are advancing proposals that, with some adjustment, would make it abundantly clear that schools cannot interfere with protected forms of expression. Under consideration is the idea that anyone “lawfully present” on a public college campus in the state university system can protest there, but no one can block someone else’s attempt to do the same.

In neighboring Wisconsin, that state university’s governing board has already adopted a similar policy — and more. The Wisconsin Board of Regents also say that public universities cannot force students or faculty to “express a particular view” on a current item of debate in the media or on the national political stage.

Critically, the Wisconsin board is now prepared to issue disciplinary sanctions on students that violate someone else’s expressive rights. The provisions include due process protections for students accused of speech violations to help keep school administrators in line.

State lawmakers in Alabama, Arizona, Georgia and North Carolina have adopted similar ideas, evidence that state lawmakers around the country are taking steps to protect expressive rights on campus. Wisconsin lawmakers recently moved a proposal that would make the regents’ policies part of state law.

Political commentator Ben Shapiro was shouted down on a University of Wisconsin campus in 2016.

And for good reason: Disruptive students shouted down political commentator Ben Shapiro on a University of Wisconsin campus in 2016, while security at Northeast Wisconsin Technical College stopped a student who was handing out Christian-themed valentines in 2018. Similar episodes have happened at SUNY Binghamton, Georgetown, UPenn, Duke, Rutgers, Claremont, Texas Southern University, and Portland State, to name a few. Disruptive Michigan students interrupted AEI scholar Charles Murray in 2017 and tried to force his speech to end prematurely by turning the lights off in the lecture hall and reading their own prepared remarks.

Add to this list UM’s recent adventures in jurisprudence, and the problem is clear: Free speech is in crisis at college campuses all over the U.S., and state lawmakers must act when school administrators do not.

Michigan’s current proposals to protect speech are a good start, but lawmakers should be specific and say that school officials will consider consequences up to and including suspension and expulsion when a student disrupts an event or interferes with someone’s expressive activity.

No one wants to punish students. But if schools allow shout-downs to happen without responding, colleges risk launching future parents, neighbors and co-workers into the world ready to respond in a disruptive, perhaps even violent, way when faced with ideas with which they disagree.

Jonathon Butcher is senior policy analyst at the Heritage Foundation Center for Education Policy, Institute for Family, Community and Opportunity.