The Bias Response Team Is Watching
By Jillian Kay Melchior
A lawsuit challenging the University of Michigan's speech police may serve as a nationwide model.
'The most important indication of bias is your own feelings," the University of Michigan advises students. It then urges them to report on their peers, anonymously if they prefer, "and to encourage others to report if they have been the target or witness of a bias incident."
The Bias Response Team is there, ready to investigate and mete out justice. More than 200 American campuses have established similar administrative offices to handle alleged acts of "bias" that violate no law. A federal lawsuit filed Tuesday against the University of Michigan is the first in the nation to challenge the constitutionality of these Bias Response Teams.
The case is brought by Speech First, a membership group primarily made up of college students, alumni and their families. It alleges that Michigan's student code and Bias Response Team violate the First Amendment by threatening to penalize protected expression. "Even apart from any punishments that may result at the end of the process," the lawsuit argues, the team's existence has a chilling effect on speech. Speech First seeks a permanent injunction prohibiting the Bias Response Team from investigating students.
University spokeswoman Kim Broekhuizen said the Bias Response Team has operated "for a number of years, and we have certainly not seen it chill speech here." Team members include top administrators and campus law enforcement. Despite repeated inquiries, no one from the team was available to answer questions.
Students found responsible for a "bias incident" face discipline, which ranges from training sessions to suspension or expulsion. As for what constitutes bias, that's vague-unconstitutionally so, argues Speech First. The existence of an offended party can be sufficient to prove "bias." The team warns potential offenders that bias "may be intentional or unintentional." Similarly, the student code prohibits "harassment," which it defines as "unwanted negative attention perceived as intimidating, demeaning or bothersome to an individual." Here, subjective perception serves as evidence.
The Bias Response Team is there, ready to investigate and mete out justice. More than 200 American campuses have established similar administrative offices to handle alleged acts of "bias" that violate no law. A federal lawsuit filed Tuesday against the University of Michigan is the first in the nation to challenge the constitutionality of these Bias Response Teams.
What if the expression of a controversial or unpopular opinion bothers someone? Under the University of Michigan's rules, "the most sensitive student on campus effectively dictates the terms under which others may speak," Speech First says. Since April 2017, students have reported more than 150 bias incidents. These include complaints about social-media posts, drawings, comments, phone calls and even "intentional item placement"-whatever that means. The Bias Response Team has also investigated speech or other expression even when it occurred off-campus.
These details come from the bare-bones bias-incident log the university publishes online. I wanted a deeper look, so two years ago I requested a year's worth of bias reports and the notes from any investigation or response. The university thwarted this inquiry by imposing a fee of more than $2,400 for the public records. But the log shows that in one reported incident of verbal bias in the classroom, the Bias Response Team said it referred a university employee to administrators who "shared concerns with the academic department involved." In several other cases, the Bias Response Team determined that some reported acts of verbal bias could constitute sex discrimination under Title IX, referring them to the Office of Institutional Equity.
Even if the Bias Response Team doesn't officially discipline an alleged bias offender, its handling of the incident can chill speech, as a recent case at the University of Northern Colorado illustrates. Adjunct professor Mike Jensen had asked his students to read Greg Lukianoff and Jonathan Haidt's "The Coddling of the American Mind" and debate controversial subjects, including gay marriage and transgender issues.
According to the team's report, a student who "identifies as a transwomen [sic]" told the Bias Response Team she was "very offended and hurt by this," according to the bias incident report. A university official, Marshall Parks, warned Mr. Jensen that if he discussed such subjects again, he could face scrutiny by the Equal Employment Opportunity Commission, as well as Title IX and Title VII investigations. "So if the topic's worth that, it's your call," Mr. Parks said. Mr. Jensen secretly recorded the conversation. "I felt that I had no academic freedom," he later said.
In 2016 the University of Northern Colorado announced it would shut down its Bias Response Team because of free-speech concerns. But Mr. Jensen says he hasn't been invited back to teach since the semester when he was reported.
Records from numerous universities show that even obviously silly or trivial incidents are taken seriously by Bias Response Teams. Back at Michigan, a residence hall director reported a phallic snow sculpture as a bias incident in February 2016. The Bias Response Team was unable to identify the artist behind this unknown work, but "anyone who was concerned or offended by it would have been offered support" from the office of the dean of students," Ms. Broekhuizen said.
One explanation for such absurdity is that Bias Response Teams are often composed of administrators whose jobs depend on the assumption that bias is widespread. When the University of Michigan was hiring a "bias incident and prevention and response coordinator," it sought someone who could "enact cultural appropriation initiatives" and "partner with other campus and divisional social justice initiatives." This makes Bias Response Team members bad cops with everything to lose, creating a bias toward finding bias.
Students have few defenses against this new bureaucracy. It's tough to hire a lawyer when you can barely afford your textbooks. The fear of retaliation is justified in an environment where dissent from political correctness is often interpreted as further evidence of bias or bigotry. Even if a student did sue, a court might not issue a final decision for years. Courts have ruled that there's no possible future harm to someone who's already graduated.
But Speech First is suing on behalf of three unnamed members, arguing they have suffered "concrete injuries as a direct result of the University's unconstitutional policies and actions." As long as even one University of Michigan student belongs to Speech First, it should have standing to sue. If it prevails in this case, it will offer a new model for how to take on campus censors. Until then, the University of Michigan's Bias Response Team is watching.