Case Study

Advocacy group sues University of Michigan over its bias response team


In May 2018, Speech First, a free speech advocacy organization, filed a lawsuit against the University of Michigan arguing that its Bias Response Team (BRT) had violated the free speech rights of three anonymous students. The plaintiff argued that the university’s harassment policies and the overbroad definitions of bias that one could use to file a complaint through the BRT threatened the students’ free expression rights, impairing their ability to speak openly on a number of issues, including gun rights, illegal immigration, abortion, the welfare system, gender identity, affirmative action, and Title IX. The university replied and the court acknowledged that “Speech First does not cite a single instance in which a student faced discipline for the expression of such views.” The university emphasized that its Bias Response Team functioned not as a punitive body but as a voluntary resource for education and community support. In July, the plaintiff’s motion was struck down by U.S. District Court Judge Linda V. Parker, who sided with the university and its president, Mark Schlissel, in arguing that there were no “threats—direct, subtle, or implied” to free speech, as the BRT did not engage in any punitive or nonvoluntary measures for students. In September 2019, however, the U.S. Court of Appeals for the Sixth Circuit ruled that the bias response team’s ability to refer incidents to campus law enforcement, the Office of Student Conflict Resolution, or the counseling center is “a real consequence that objectively chills speech.” The case will be returned to the lower court, which will consider the case once again.

PEN America Analysis

Universities should provide visible and substantial responses to incidents of bias and bigotry, and BRTs can sometimes be useful mechanisms for doing so. The teams work best when their members are well versed in issues of free speech, academic freedom, and the First Amendment. They are most effective when providing support to community members in need and are most problematic when given license to mandate disciplinary actions. BRTs that are punitive in nature can force a university into actions that penalize students for their viewpoints, inhibiting free speech. That said, even when a BRT is intended solely as a community resource, it can have the unintended effect of intimidating students and faculty into self-censoring. To lessen these effects, PEN America suggests an increase in transparency in the process of reporting and dealing with complaints and the delegation of disciplinary authority to alternative campus bodies.

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