Higher Education

Lawsuit challenges speech code, bias response team

November 12, 2018

Mike Brake

Like many universities across the nation, the University of Oklahoma operates a bias reporting hotline that allows any aggrieved or offended party to report and launch an investigation into supposed acts of bias.

Organizations advocating free speech on campuses, such as the Foundation for Individual Rights in Education (FIRE) and Speech First, have aggressively fought back against campus speech codes, restrictive “free speech zones,” and bias response programs that can lead to investigations and even punishment for speech.

Speech First recently sued the University of Michigan at Ann Arbor, challenging the school’s restrictive speech codes that prohibit “harassment” and “bullying” and levy increased penalties if such conduct was the result of “bias.” Prior to the suit, the university’s rules said those offenses would be determined by the supposed victim’s feelings. After the lawsuit was filed, the university changed the definitions of those terms, apparently in an effort to negate the lawsuit.

The suit also challenges the use of often anonymous reports to the bias response team, a program similar to OU’s.

A federal judge has rejected Speech First’s request for a temporary injunction halting those programs, and the organization is appealing that ruling to the Sixth Circuit Court of Appeals.

Nicole Neily, president of Speech First, said her organization was only founded in February of 2018 and hopes to lodge more legal challenges to campus speech codes and bias response teams, which she said are “flagrantly unconstitutional. It is impossible to have a system where students report on each other without chilling free speech. It’s like East Germany.”

Neily noted one case at another school where a white student called the bias reporting hotline to complain that the local Black Lives Matter chapter had caricatured him by placing his face on a box of crackers (implying the use of a derogatory term), only to be informed that since he was white, “this program is not for you.”

Neily said she is interested in learning more about OU’s bias response program, as is OCPA, which has filed repeated open records requests asking about how many calls the program has received, the details of the calls, and the disposition of those cases.

In late August, Jane Irungu, interim associate vice president of the Office of University Community, responded that “the bias hotline is still operational, but with new leadership in the Office of University Community, the process is currently being reviewed to ensure that it is being used most effectively.”

She added that “while the number of calls are low, every call is reviewed and directed to an office or to an individual in the university that can best help in the given situation. Calls that are actionable are directed to the Title IX office, while others are directed to other relevant offices of individuals for further review and potential action.”

There is no indication whether that action could include suspension, expulsion, or other punitive measures.

On November 6, OU’s open records office provided a one-page summary showing that there have been 158 reports received since the hotline was launched on September 9, 2016. OCPA has made another open records request seeking the 158 case files.