A civil liberties group sued Indiana University on May 29, arguing that its bias reporting system violates students’ First Amendment rights and chills discussion of controversial topics.
Speech First alleges that the university’s bias response reporting system “is an unconstitutional and far-reaching policy that is solely designed to deter, discourage, and otherwise prevent students from expressing disfavored views about the political and social issues of the day.”
Indiana university’s “Bias Incident Reporting” web page defines a bias incident as “any conduct, speech, or expression, motivated in whole or in part by bias or prejudice meant to intimidate, demean, mock, degrade, marginalize, or threaten individuals or groups based on that individual or group’s actual or perceived identities.”
“A campus team of trained university officials privately reviews all submitted bias incident reports with responses typically 1-2 business days of reporting an incident,” the web page says, adding that responses to bias reports may include interventions, mediations, and conversations.
Speech First, in a press release, criticizes the bias response system as sweeping in its reach:
IU states that you don’t even have to experience the “bias” yourself. You merely have to witness an incident of “bias” or “observe it online” or just be “concerned, without being directly impacted”. Reportable offenses can occur on or off campus, including on social media. After a report is filed, the University maintains a record of all reports. Students accused of “bias incidents” can be referred for formal disciplinary proceedings and, as students have told us, reports on their records can be referenced at any time. One student reportedly was overlooked for promotion at their place of work on campus because of a Bias Incident Report on their record. That supposed report stated they had merely said something offensive.
The university’s bias response system was featured in an investigation conducted by The College Fix from 2019 to 2023 about what kinds of speech and expression are reported to bias response teams in schools across the country.
The College Fix uncovered 73 bias incident reports filed with Indiana university in fall 2018 through a public records act request. The records released by Indiana University redact most of the personal identifying information under an exemption to the state’s public-records law.
The complaints frequently involved speech that caused only trivial offense. For example, a teaching assistant complained that a professor joked about the Janet Jackson “nipplegate” Super Bowl incident when discussing Federal Communications Commission fines for “indecency” on the air (the FCC is allowed to ban indecent programming by regulated broadcasters with FCC licenses, under the Supreme Court’s FCC v. Pacifica decision. Colleges are not allowed to ban all “indecent” speech, according to the Supreme Court’s decision in Papish v. Curators of the University of Missouri).
Other bias complaints were about things like these, notes The College Fix:
· A woman standing by a clock near Ballantine Hall was reported for “slut shaming” women by calling the college “Indiana slut university.” The complainant wrote that “there is so much anger and animosity towards women and this group has no right to spread this hate on campus.”
· A student playing Fortnite in the Memorial Hall activity room was performing poorly in his game and referred to an opponent as “gay.” Another student told him that wasn’t okay and if he did it again, he would file a bias report against him. The student said it again, and a report was filed against him.
· A “trans feminine” student (her wording) showed up at an art class wearing lipstick. She thought the professor gave her a rude look, then after class, the professor walked over to another person in the room and made a comment the student couldn’t quite make out. But the other person responded, “We live in a gender free society and people can wear what they want,” leading the student to believe the professor made a comment about her not looking “totally masculine.”
· A student reported her white roommate when she overheard the roommate call a friend and say, “Get on Skype, what up my n*gga!” She explained to the woman she wasn’t comfortable with her using that word and the roommate left the room, slamming the door.
What sorts of monitoring and responses to speech by bias-response teams violate the First Amendment is the subject of disagreement among the lower courts, with the federal appeals courts for the 5th, 6th, and 11th Circuits ruling in favor of Speech First’s past lawsuits against universities in their jurisdictions, but the federal appeals courts for the 4th and 7th Circuits ruling against Speech First, concluding it lacked standing to sue over bias-response teams at the universities it sued.
Speech First’s lawsuit against Indiana University was filed a day before the Supreme Court arguably broadened the ability to sue over informal censorship in its decision in NRA v. Vullo, which overturned a federal appeals court’s decision that informal pressure by New York State regulators did not amount to a violation of the First Amendment. That decision was widely expected by legal observers, and Speech First’s lawyers may have concluded that it undermined language in earlier Seventh Circuit decisions making it hard to sue over bias-response teams.
The division among the lower courts about bias-response teams remained unresolved at the time Speech First filed its lawsuit, which came after the Supreme Court decided in March not to take on the issue of campus bias response teams, rejecting a review of a case brought by Speech First against Virginia Tech, resulting in a ruling against Speech First by the 4th Circuit.
