Bias Response Teams: Designing for Free Speech and Conflict Resolution on the University Campus. (Speech at Twenty-First Century Schools and Universities)

• Date: 01 July 2024
• Author: Smith, Carson
• Published date: 01 July 2024

Table of Contents
                Introduction
                I. The Structure of University BRTs
                 A. Reporting
                 B. Meeting with BRT Staff
                 C. Data Collection
                 D. The Role of BRTs in Universities
                II. Legal Challenges to BRTs
                 A. Relevant Suits and Court Rulings on BRTs
                 B. The Changing Design of BRTs
                III. Redesigning BRTs to Advance Their Goals and
                 Address Stakeholders' Needs
                

Introduction

Throughout the United States, colleges and universities have waded through the challenges of navigating student-to-student identity-based discourse and disputes. (1) In an attempt to manage such student-to-student disputes, (2) numerous universities have developed dispute resolution mechanisms called Bias Response Teams (BRTs), which are resources specifically designed to address and collect data on concerns regarding incidents of perceived identity-based discrimination. (3) Yet while universities seek pathways to address discriminatory student conduct, students--represented by nonprofits--have challenged such programs in court. (4) Plaintiffs accuse universities of violating principles of free speech. Since 2018, nonprofits have filed at least seven lawsuits against universities for their implementation of BRTs. (5) The resulting court opinions and settlements are enough to give pause to any university thinking about developing a BRT or similar program.

While many universities have stripped their BRTs of power in the face of court action, (6) this Essay argues that campuses should instead maintain their BRTs as tools for education and civil discourse. Part I surveys BRTs and their approaches to managing perceived bias incidents, including the provision of access to other dispute resolution systems such as restorative justice and mediation processes. Part II examines recent legal challenges aimed at BRTs and the resulting changes that universities have made to BRT programs. Finally, considering scholarship on dispute system design, Part III discusses how universities may reimagine their BRTs to not only better serve their student population but also learn from the legal challenges faced by their peer institutions. Specifically, while universities should forego BRTs' connections to formal or punitive resources, they should continue to embrace BRTs' informal resources, such as mediation and restorative justice offerings.

I. The Structure of University BRTs

First established in the early 2000s, BRTs are a relatively new trend in universities that developed as a response to growing "awareness of incidents of hate against minoritized students." (7) BRTs allow campus members, especially students, to report potential incidents of identity bias to administrators. (8) These BRT systems "promote ... supporting students who are harmed or providing educational opportunities" to help students better understand bias. (9) Often, these BRTs connect with the students involved in the incident afterwards to offer support or direct them to other campus resources. (10) Simultaneously, BRTs may also track information about the incident at hand to inform the university administration's sense of the campus climate. (11) BRT procedures can effectively be broken down into three phases: reporting, meeting with BRT staff, and data collection.

A. Reporting

The ways in which campus community members can report perceived bias incidents vary from institution to institution, but many universities permit student users to report through online portals where reporters' identities may be kept anonymous. (12) While students may report incidents regarding a harm they have directly experienced, they may also report on behalf of their peers. (13)

B. Meeting with BRT Staff

When a student user shares their identity in their report, they may be invited to speak with a professional staff member of the BRT about the perceived bias and/or harm they witnessed or personally experienced. (14) During this phase, the BRT staff member may ask for additional information on the incident and offer the reporting student resources, including counseling, to help them manage the harm they experienced. (15)

Support is meant not only for students who have experienced harm, but also for students who have been accused of doing harm. The BRT may contact accused students and offer to meet with them. (16) This meeting is voluntary and can entail discussing the harm alleged by the reporter or offering additional resources for the students. (17) While BRTs are not themselves punitive, they may refer cases to other administrative offices at the university, which could lead to punitive action. (18) While this may be the end of the process for some universities, others provide a variety of resources to help resolve the dispute between the parties, such as mediation, (19) restorative justice, (20) or other creative solutions like voluntary educational experiences or workshops (21) that are open to the accused parties. (22)

C. Data Collection

Finally, even when the BRT does not refer students to additional resources, it may collect critical data for the university about the incident, including "general information about the types of incidents reported, where they have taken place, and the actions taken to address them." (23) In some instances, limited parts of this data are shared publicly. (24) For example, Stanford University's Protected Identity Harm Reporting process publishes the details of some such cases on their website, along with the steps the university has taken to address the conflicts. (25)

D. The Role of BRTs in Universities

BRTs provide a unique service to universities. Often, the bias incidents with which they engage exist in a "gray area, short of a legal or policy violation" yet are still "hostile to various diverse groups." (26) While universities are often prepared to manage criminal behavior, they are less prepared to respond to harmful behavior that falls in this middle ground. (27) For this reason, BRTs offer universities an indispensable resource as they actively seek to address concerns that fall somewhere along the spectrum between policy violations/hate crimes and legally protected speech. (28)

Moreover, not only are these systems collecting reports of bias, but they are also offering a means of education and dispute resolution, like mediation and restorative justice, which are effective tools for managing hate-based or biased speech and strengthening community ties across identities. (29) Thus, by soliciting reports of bias and guiding students to suitable resources, BRTs may be an important step to creating fruitful dialogue between adverse parties, addressing harmful behaviors, and finding paths towards resolution.

In an ever-conflicted world, well-established systems like BRTs support universities in understanding the campus climate and their students' needs while also providing concrete ways to address student-to-student conflicts.

II. Legal Challenges to BRTs

Despite their central role in many universities' approach to managing campus disputes, BRTs have been and continue to be actively challenged in court. These legal challenges are often led by nonprofit organizations--such as Speech First and the Alliance Defending Freedom--on behalf of students. (30) They claim that BRTs chill constitutionally protected speech. (31) Some of these cases have led to appellate rulings disfavoring BRTs, specifically in the Fifth, Sixth, and Eleventh Circuit Courts of Appeals. (32) Other courts, however, have ruled against plaintiffs in cases regarding university BRTs. (33) Yet even in the cases where these non-profits have failed to convince the court, numerous universities have still decided to place limitations on their BRTs or dismantle them entirely without the coercion of the court. (34) Below, I provide an overview of some of the legal arguments brought forth by these plaintiffs, the subsequent court rulings, and, ultimately, the resulting changes in BRTs' structures.

A. Relevant Suits and Court Rulings on BRTs

In Speech First, Inc. v. Schlissel, Speech First sued the University of Michigan for the creation and use of its BRT, which was established to address incidents of bias and their harms on campus as well as to administer remedies for such behavior. (35) Despite noting that the BRT itself could not enact punishments, the Sixth Circuit reasoned that the ability to refer accused students to both formal and informal campus offices and services--including the police, the Office of Student Conflict Resolution, (36) and student counseling--could nevertheless function to intimidate or "implicit[ly] threat[en]" students. (37) Furthermore, the institution's classification as a "Bias Response" resource "suggests that the accused student's actions have been prejudged to be biased." (38) Consequently, referral to such a process might lead a student to fear social consequences, including "currying disfavor with a professor, or impacting future job prospects," thereby chilling student speech. (39) In the view of the court, the voluntary nature of participating in any BRT referral was insufficient to outweigh this chilling effect. (40)

The claims made in Schlissel are reflected in other cases, including claims made against the University of Central Florida (UCF) in Speech First, Inc. v. Cartwright, where Speech First challenged the university's BRT, staffed by university officials and a campus police officer, among others. (41) Like the Sixth Circuit, the Eleventh Circuit held that a university's bias policy and the accompanying BRT could chill free speech by intimidating impressionable students afraid of violating university norms or being accused of "offensive," hateful, or biased conduct. (42) In addition, the court reasoned that the bias policy utilized an overly broad definition of bias that could categorize protected speech, such as "core political speech," as prohibited biased speech. (43)

The cases in which the courts sided with plaintiffs against BRTs have emphasized a fear that BRTs act as means...