The University of Wisconsin-Milwaukee (UWM) has limited its bias reporting system for “hate- or bias-motivated incidents” after a legal foundation warned that it violated the First Amendment by “chill[ing] freedom of expression.”
In response to a letter from Southeastern Legal Foundation (SLF) threatening to sue it, UWM updated its website to inform students that “hate- or bias-motivated incidents” are not necessarily punishable, and that hate speech is generally protected by the First Amendment:
Hate or bias incidents do not necessarily violate the law or university policy. As a public university, UWM is bound by the First Amendment and will not sanction or punish a member of the university community for exercising their right to freedom of speech and expression. The term “hate speech” is used to describe hateful comments that demean a person or group of people based on their personal characteristics such as race, gender, religion, or sexual orientation. This is often misunderstood, but what people call “hate speech” is protected by the First Amendment. However, in those situations involving speech that is protected by the First Amendment and is not subject to sanction, UWM is committed to providing care and support to those impacted by hateful and offensive speech and expression through the hate/bias reporting process and the RRT.
The University’s Office of Equity/Diversity Services (EDS) defines “hate- or bias-motivated incidents” as those “directed against an individual, or individuals, because of their actual or perceived protected characteristics” and maintains a form that anyone can use send anonymous reports for EDS’ review.
The Supreme Court has made clear that hate speech is generally protected by the First Amendment, such as in public fora and public places, in decisions like R.A.V v. St. Paul (1992) and Matal v. Tam (2017).
“Following our demand letter, students at UWM who were tired of self-censoring engaged in campus activism to ensure that the administrators took our demands seriously,” SLF’s Cece O’Leary says. “Now, they can freely participate in free speech activities without constantly wondering whether they’ll be reported to the campus thought police and subjected to lengthy punishment.”
SLF, a nonprofit tax-exempt legal foundation, sent demand letters to a dozen state universities, including UWM, in October, that “identified potential free speech violations.” These letters triggered policy changes at the University of Maine, Southern Utah University, and Iowa State University.
UWM’s updated website says that the university “is bound by the First Amendment,” linking to its free expression policies. The services available for students reporting a bias incident “includes UWM’s Rapid Response Team (RRT),” a group of staff and administrators “provid[ing] care and support in response to incidents of hate and bias.”
The website clarifies that the RRT “does not investigate such reports.”
“UWM cannot take any action that could lead students to self-censor, including requesting ‘voluntary’ meetings, investigating, or punishing students for the words they say,” O’Leary said. “We are pleased that the university has made changes to its website to reflect that.”
O’Leary continued to say that “reporting systems scare conservative students into silence.” SLF’s demand letter argued that conservative views on topics including “marriage and family life” and “gender identity” make them especially prone to self-censorship.
“Under the University’s bias reporting system, those students could be reported for any speech that offends their peers, such as handing out flyers describing abortion or hosting a debate about transgender issues,” the letter reads.
“Although speech on these topics may offend some students, that does not mean a university can shield students from it by giving them a mechanism through which to report it.”
Conservative students “are typically the ones engaging in open debate and discourse,” says SLF General Counsel Kimberly Hermann.
“We stand behind those students, and we are pleased that UWM has met its duty to protect the speech of every student on campus,” she says.
