Free Speech Tensions: Responding to Bias on College and University Campuses

THE FOLLOWING BLOG POST IS AN EXCERPT FROM "Free Speech Tensions: Responding to Bias on College and University Campuses" ORIGINALLY PUBLISHED IN THE JOURNAL OF STUDENT AFFAIRS RESEARCH AND PRACTICE.

Despite the increasing development of bias response teams on college and university campuses, little scholarship has examined these teams and, in particular, team leaders’ approaches to understanding the role of free speech in responding to bias. Through semi-structured interviews, administrators who served on bias response teams at 19 predominantly White institutions described the need to balance free speech with other interests, recognize the nuance of First Amendment protections, and respond with educational conversations.

A steady stream of racist incidents have occurred at higher education institutions throughout the United States, including racial slurs painted on campus buildings, derogatory posters in university hallways, and racist messages and videos on students’ social media accounts (The Journal of Blacks in Higher Education, 2016a, 2016b). In one instance at East Tennessee State University, a White man wearing a gorilla mask tried to give bananas wrapped in nooses to attendees of a Black Lives Matter rally (The Journal of Blacks in Higher Education, 2016b). Campuses also routinely witness bias directed against lesbian, gay, bisexual, transgender, and queer students (Rankin, Blumenfeld, Weber, & Frazer, 2010), religious minorities (Flaherty, 2016), and students with disabilities (Gonzales, Davidoff, Nadal, & Yanos, 2015), among other groups.

In many bias incidents in higher education, the role of First Amendment protections— particularly free speech—constitutes a flashpoint of disagreement among various constituencies. While some students, faculty members, and groups external to higher education argue for absolute free speech and detest any response from college administrators, others deplore what they view as impermissible hate speech and insist that institutions respond in a visible manner. As the number of bias response teams increased across the country, their presence has been the subject of critique by some free-speech advocates who pointed to the disbanding of a bias response team at the University of Northern Colorado following concerns a faculty member’s academic freedom was compromised (Jaschik, 2016b) and the delayed implementation of a team at the University of Iowa (Jaschik, 2016a). In response, many students and student affairs administrators argued the teams serve an important role for students who may not otherwise know where to report or how to address such incidents (New, 2016). These differing perspectives necessitate consideration of the processes used by administrators who serve on bias response teams to respond to incidents that may be considered free speech. This study aims to answer the research question: How do bias response team members understand their roles concerning free speech?

Bias and Bias Response in Higher Education

To place this study in context, this section reviews several types of bias and bias incidents in higher education, followed by a consideration of student affairs administrators’ attempts to protect free speech and promote diverse and inclusive campus environments. Lastly, the recent formation of bias response teams on campuses is reviewed. In addition to peer-reviewed sources, we also cite news articles, given the rapidly changing landscape on this topic and the lack of published scholarship examining bias response teams.

Bias Incidents on College and University Campuses

An abundant literature examines the extent and nature of various forms of bias on and off college and university campuses, including in online spaces. Bias incidents are defined as conduct, speech, and expression that are motivated by prejudice but which “do not involve criminal conduct such as assault, threats, or property damage” (Wessler & Moss, 2001, p. 17). A hate crime is classified as “a crime of violence, property damage, or threat that is motivated in whole or in part by an offender’s bias based on race, religion, ethnicity, national origin, gender, physical or mental disability, or sexual orientation” (Wessler & Moss, 2001, p. 17). Because free speech protections do not apply to criminal acts, this article focuses on institutional responses to bias incidents rather than hate crimes. Bias incidents may still include conduct or expression prohibited by institutional policy at public and private institutions. Such incidents only become classified as hate crimes if criminal activity is part of the incident (e.g., a student uses racial slurs while physically assaulting another student).

Some forms of bias in higher education are known as microaggressions (Sue, 2010), or “brief, everyday interactions that send denigrating messages” which are “subtle and insidious, often leaving the victim confused, distressed, and frustrated” (Rollock, 2012, p. 517). Examples of such instances on college campuses documented in the literature include racial microaggressions directed at students of Color in residence halls (e.g., racial jokes, racial slurs written in shared spaces; Harwood, Huntt, Mendenhall, & Lewis, 2012) and sexual orientation microaggressions, like the use of the popular expression, “that’s so gay,” by heterosexual male undergraduates (Woodford, Howell, Kulick, & Silverschanz, 2013). Many microaggressions might be considered expressions of free speech that violate no laws or institutional policies, presenting a potential challenge for bias response team leaders.

Research has also addressed bias in various campus environments, including in the classroom (Boysen, 2012; Boysen & Vogel, 2009; Boysen, Vogel, Cope, & Hubbard, 2009). One study found half of all students experienced bias in the classroom (Boysen et al., 2009). In addition, student organizations and off-campus parties with derogatory themes have been sites for bias incidents in numerous colleges and universities (Garcia, Johnston, Garibay, Herrera, & Giraldo, 2011). Most recently, technological advances present digital opportunities through which bias may be transmitted (Harris & Ray, 2014; Schroeder, 2013). Such digital forms of bias have targeted American Indians, including weblog responses to a university’s removal of a racialized mascot (Clark, Spanierman, Reed, Soble, & Cabana, 2011), and Asian Americans, including a highly publicized instance of a video mocking Asian American students that went viral online and prompted Asian American students to report additional experiences of bias (Johnston & Yeung, 2014).

Administrative Responses to Bias: Balancing Free Speech and Diversity

While not all bias incidents involve the exercise of free speech, those that do present challenges for administrators considering options for an institutional response. In such cases, formal disciplinary processes for addressing policy violations and criminal acts do not provide appropriate guidance. Guided by institutional missions, student affairs administrators are chal- lenged to “simultaneously promote campus diversity and free speech” (Varlotta, 1997, p. 127). Within student affairs, scholars and practitioners have long considered the role of free speech protections in guiding administrators’ decisions and attempts to create inclusive environments (see Klepper & Bakken, 1997; Laramee, 1991; Palmer, Penney, Gehring, & Neiger, 1997; Paterson, 1994; Varlotta, 1997). This flurry of scholarship in student affairs in the 1990s followed judicial rebuke of colleges and universities that created rigid campus speech codes in the 1980s and early 1990s (for discussion, see Kaplin & Lee, 2014, pp. 624–636).

Since campus speech codes began to be struck down, judicial rulings have generally protected the free speech rights of students at public colleges and universities (Olivas & Gajda, 2015). While private colleges and universities are not state actors and thus may restrict speech, in practice, many private institutions attempt to extend free speech protections to their student bodies by policy, practice, or according to state law (Levinson, 2007). Given this reality, administrators must respect the boundaries of relevant First Amendment protections while refraining from judging all attempts to discuss bias and diversity on campus through a legal lens. Administrators can create generative educational opportunities for engaging diversity without running afoul of free speech protections and view the First Amendment as a “starting point that sets the minimum parameters” for campus discourse (Varlotta, 1997, p. 131). Administrators are advised to enact non-regulatory approaches for addressing hateful speech that “do not rely on the prohibition of certain types of speech or the imposition of involuntary sanctions on transgressors” (Kaplin & Lee, 2014, pp. 633–34). Given the changing legal landscape, student affairs administrators must stay attuned to the current legal environment and seek ongoing education on developments in higher education law (Janosik, 2005).

Establishment of Bias Response Teams

Student affairs administrators and senior institutional leaders must carefully consider a variety of factors in responding to bias, including the role of free speech protections afforded by the First Amendment and by institutional policy (Harris & Ray, 2014). The University of Oklahoma president who expelled students singing a racist chant featuring the N-word was widely praised by diversity advocates yet placed the institution at legal risk of due process complaints (Stripling & Thomason, 2015). These free speech issues become particularly thorny when considering the role of electronically transmitted bias and students’ online speech. Institutions struggle to define appropriate roles in relation to online speech outside of formal instructional contexts and whether such speech should be monitored and regulated under institutional policies (see Hutchens, 2012; Schroeder, 2013). In response to increased awareness of bias incidents in higher education, bias response teams — often led by and nearly always including student affairs administrators — have proliferated on college campuses and are often called upon to address matters that fall short of warranting disciplinary action (Anthony & Johnson, 2012). Bias response teams are institutional committees designed to receive and respond to reports of bias incidents, hate speech, and/or hate crimes on college campuses (LePeau, Morgan, Zimmerman, Snipes, & Marcotte, 2016; McDermott, 2013). Bias response teams must work to build trust with students and the wider campus community to encourage reporting, as Wessler (2004) contended that bias incidents are underreported on college campuses. The teams can help address incidents, facilitate communication among campus stakeholders, and identify gaps in campus policy (Wessler & Moss, 2001). Bias response teams also help administrators weighing how to respond to incidents that are not at the level of criminal acts or policy violations (McDermott, 2013). Teams have also been critiqued as scattershot and reactive, allowing an underlying culture of exclusion to remain intact (Hughes, 2013). Colleges and universities began creating bias response teams as early as the 1980s, including a team to combat bias against gay, lesbian, and bisexual students at Indiana University-Bloomington, one among several anti-bias teams at the university (Windmeyer & Freeman, 1998). Anecdotal evidence suggests the number of bias response teams nationally has expanded in recent years (McDermott, 2013; New, 2016). LePeau et al. (2016) examined the work of one bias response team in depth, developing a model to explain how team members connected with students, faculty, and staff members to respond to incidents. Thus far, beyond LePeau et al. (2016) and Miller, Guida, Smith, Ferguson, and Medina (in press), bias response teams have been the subject of little empirical research in higher education.

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