Shelbi Shultz, Associate Member, University of Cincinnati Law Review
Throughout American history, universities have served as a battleground for free speech debate as it applies to the First Amendment. A current focus of discussion are Bias Incident Report Teams (BIRTs) that have proliferated higher education in recent years. Generally, these teams respond to bias reports; though, the way universities run the teams can differ. Some groups, such as the freedom of speech advocacy organization, Speech First, believe that BIRTs condemn certain opinions and create an atmosphere that quells student speech for fear of being reported. Conversely, universities have been urged to reform policies and implement measures to combat hate on college campuses. Public universities are often caught between a rock and a hard place: needing to comply with the Constitution as well as wanting to condemn hateful speech on their campuses.
This article will grapple with the constitutional dilemma that universities face when implementing a BIRT. First, this article will briefly summarize constitutional free speech issues in the university context before launching into an overview of the tension that has grown between Speech First and BIRTs. Next, this article will discuss current legal disputes and the circuit split that has emerged in the free speech arena.
At the outset, it is important to note that universities have different names for campus organizations like BIRTs, Offices for Student Conduct and Resolution (OSCR), or Title IX offices. Though their names may be different for each school, the organizations effectively serve the same purpose and will be referred to in the same way for the sake of clarity in this article.
This section will introduce a brief history of the First Amendment’s role on college campuses, utilizing campus speech codes to illustrate how speech regulation has been historically viewed. Then an overview of BIRTs and Speech First will be discussed.
A. A History of Free Speech on College Campuses: Focusing on Speech Codes
Free speech and public universities have a rather tumultuous history, as universities are often caught between creating a space that promotes a wide array of ideas and maintaining order on campus. College classrooms and campuses have been touted as a distinct “marketplace of ideas,” and U.S. courts continuously protect student speech and academic freedom. First Amendment concerns sometimes oppose a university’s desire to maintain order or create an inclusive campus climate. Judge Cohn summarized this sentiment in Doe v. University of Michigan, stating: “It is an unfortunate fact of our constitutional system that the ideals of freedom and equality are often in conflict.” Essentially, this means that universities cannot prohibit hateful and degrading speech in order to remain compliant with the Constitution.
Campus speech codes illustrate an example of the tension between public universities and free speech. These codes proliferated in the 1980s and 90s to combat race discrimination and harassment on campuses, and the speech codes prohibited discriminatory speech or speech that created a hostile campus environment. Doe v. University of Michigan struck down University of Michigan’s speech code as being overbroad, because it prohibited speech that was merely “unseemly or offensive.” The federal district court found that this outright prohibition of certain speech types violated students’ First Amendment free speech rights.
College students are granted a wide latitude of First Amendment protections. “Fighting words” are one of the few exceptions in which the First Amendment will not lend its protection, as “such utterances are no essential part of any exposition of ideas.” In Chaplinsky v. New Hampshire, the Supreme Court defined “fighting words” as words that inflict injury or incite violence merely by being stated. Courts have rarely used the standard set in Chaplinsky, choosing to offer wider protections to speech where possible. “Fighting words” contrast with hate speech, which the First Amendment protects. R.A.V. v. St. Paul solidified this principle, holding that a law could not single out content-based viewpoints—even if those viewpoints touted Nazi swastikas or burning crosses.
Despite its tendency to incite hostility, hate speech is protected under the First Amendment, as the courts have given a level of value to hate speech that is not afforded to “fighting words.” Because hate speech or symbols cannot be prohibited on college campuses, universities must deal with conflicts that may arise in the student body with delicate care—whether these conflicts are based on race, sexual orientation, religion, or gender. Notwithstanding setbacks in court with speech codes, universities have continued to work towards creating more inclusive campuses without explicitly banning certain speech. The most recent (and equally controversial) version of this fight pertains to BIRTs.
B. BIRTs and Speech First
Bias incidents are described as “prejudicially motivated conduct, speech, or expression that does not constitute criminal activity.” Such actions that are considered criminal activity, like hate crimes, are “crimes 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.” Hate crimes or other legal violations committed on college campuses are handled through existing disciplinary bodies such as campus police or OSCR where an investigation is conducted and punishment may be proscribed. Universities have developed and implemented BIRTs to address those bias incidents that do not violate law or university policy.
Examples of bias incidents include “microaggressions, protests, displays, and events that are hostile to various diverse groups and are considered to have a deleterious effect on the overall campus climate and/or on particular groups on campus.” BIRTs respond to reports of these incidents; though, they lack the authority to investigate the alleged incident or discipline accused students. Instead, BIRTs “receive reports of incidents that may involve prejudice from students, faculty, and staff; reach out and seek to support those who file reports; engage those who were the subjects of reports in voluntary, educational conversations; and monitor trends in the campus climate to inform educational efforts.” Generally, the only contact BIRTs have with accused students is reaching out for a voluntary meeting to discuss the reported bias.
Despite their idealistic goals to create inclusive campuses where there are mechanisms to address hate, BIRTs have recently been at the center of legal controversy. Speech First, a student free speech advocacy group, has represented students in numerous lawsuits against universities over their BIRT policies. Speech First describes itself as a “membership association of students, parents, faculty, alumni, and concerned citizens who’ve had enough of the toxic censorship culture on college campuses, and who want to fight back.” Speech First commits itself to protecting students’ rights to free speech, and this mission remains active with a case decided as recently as September 22, 2021.
Although not every U.S. Circuit has decided a Speech First case, a split exists among the jurisdictions that have ruled on the issue. Currently, the Fifth and Sixth Circuits have sided with Speech First, concluding that BIRTs do violate the First Amendment in their ability to chill student speech. The Seventh Circuit and federal district courts in the Fourth and Eleventh Circuits decided that BIRTs do not infringe on students’ free speech rights. This article will argue that the Seventh Circuit took the most persuasive approach in evaluating a BIRT’s role on campus. BIRTs remain a pertinent issue, and Speech First exhibits no signs of ending their BIRT crusade. Thus, it is likely that more courts will decide on this topic in the near future.
Speech First v. Schlissel et al. was one of the first cases filed to combat the presence of BIRTs on college campuses, and it set a powerful precedent for other cases that were subsequently decided. In 2018, Speech First sued the University of Michigan president for his role in allegedly quelling student speech on campus—partly for the presence of a BIRT. Speech First argued that the University’s definition of “bias incident” was too broad, and that the team’s “practices in responding to bias incidents intimidate students, quashing their speech.”
The Sixth Circuit found two major issues with University of Michigan’s BIRT: its ability to make referrals to campus disciplinary bodies and to meet with the alleged perpetrators of the bias incidents. The court held that despite the BIRT’s inability to directly discipline students, its capacity to make referrals that could initiate formal investigation processes was “chilling, even if it d[id] not result in a finding of responsibility or criminality.” The court also found that the BIRT’s ability to voluntarily meet with accused students “could carry an implicit threat of consequence should a student decline the invitation.” Due to these factors, the Sixth Circuit ruled in favor of Speech First.
Soon after the Sixth Circuit ruled in Schlissel, the Fifth Circuit decided Speech First v. Fenves. In Fenves, Speech First sued the University of Texas at Austin, challenging their BIRT and its potential impact to chill student speech. The Fifth Circuit ultimately sided with Speech First, using similar logic that the Sixth Circuit employed in Schlissel. Despite their similarities, a key difference between the cases involved evidence suggesting that University of Texas’s BIRT actually referred a large number of reporting students to disciplinary bodies for further support. The court likened University of Texas’ BIRT to “the clenched fist in the velvet glove of student speech regulation.” The courts in both Schlissel and Fenves maintained negative views of the BIRT as an authoritarian tool on campus purposefully utilized to restrict student speech.
In Schlissel, most of the arguments made that favored Speech First focused solely on the court’s idea of the BIRT and not its actual role on campus. The court emphasized that the BIRT could chill student speech through the possibility of making a referral to campus disciplinary bodies, yet there was no evidence cited in the case of that impact taking effect. Much of the Schlissel’s majority opinion relies on speculation that the BIRT’s presence on campus quells student speech. Since university disciplinary bodies such as OSCR, campus police, and Title IX, already exist to investigate and handle some of the same situations that could be reported through the BIRT, the court gives no clear reason why the BIRT itself is unconstitutional when the other bodies pose no issues.
If disciplinary bodies such as the campus police, OSCR, or the Title IX Office were using the bias incident reports to punish students without conducting investigations, then that would infringe on students’ due process rights and would reasonably quell student speech. But this is a free speech issue, and the court relies on thin reasoning that speech is actually in a position to be chilled. If the alleged bias incident is deemed appropriate to refer to a campus disciplinary body, BIRTs simply serve as a conduit between students’ reports and the proper offices that investigate such reports. BIRTs can create a more accessible reporting process for actual conduct violations without chilling student speech. Essentially, if the Fifth and Sixth Circuits want it to be more difficult to report bias incidents or hope more incidents go under the radar, then they should just express that sentiment.
Opposed to the speech codes that were struck down 30 years ago, BIRTs do not prohibit student speech or conduct but create a reporting mechanism without any disciplinary power. BIRTs are easily distinguished because speech is not actually being prohibited—only addressed in a completely voluntary meeting. BIRTs also serve to support students who make reports by letting their concerns be heard, whether or not they want to formally report the alleged bias. Conduct that constitutes bias is not forbidden on college campuses—there is merely a mechanism that allows the university to address and monitor the incident through voluntary and non-disciplinary measures by inviting the accused student to have a conversation about the report.
In contrast to the Fifth and Sixth Circuits, the Seventh Circuit and federal district courts in the Eleventh and Fourth Circuits have decided in favor of universities in cases brought by Speech First. The Seventh Circuit case, Speech First v. Killeen, was brought by Speech First against the University of Illinois at Urbana-Champaign president. Speech First v. Cartwright, decided by a district court in the Eleventh Circuit, was brought against the president of University of Central Florida and decided on July 29, 2021. Most recently, a case brought against Virginia Tech president, Speech First v. Sands, was decided by a district court in the Fourth Circuit on September 22, 2021.
All of these cases utilize similar reasoning—with Cartwright and Sands following Killeen’s lead—concluding that BIRTs do not pose an obstacle to free speech. The courts focus on the fact that the BIRTs have no formal disciplinary power and cannot compel student participation in meetings. Thus, “a program that has no authority to discipline students and cannot compel students to engage with it does not objectively chill conduct unless there is evidence to the contrary.” In most cases, universities cannot show evidence to the contrary. In future cases, hopefully courts will follow the commonsense reasoning employed by the Seventh Circuit and federal district courts in the Eleventh and Fourth Circuits in determining whether BIRTS actually pose free speech issues on college campuses.
Ultimately, there are probably better mechanisms to address issues of hate and bias at universities than BIRTs. This article does not argue that BIRTs are perfect, but it does note that there is a substantial difference between perfection and blatant unconstitutionality—with BIRTs likely falling somewhere just past constitutionality. Between fierce demands for racial justice, a polarizing presidential election, and a global pandemic, universities want to serve their students in the most effective means possible. Universities should have the ability to find ways to combat hate on campus without being harassed by organizations that seek out students to represent in court.
 Speech First v. Cartwright, No. 6:21-cv-313-GAP-GJK, 1, 2021 U.S. Dist. LEXIS 146466 (M.D. Fla. July 29, 2021).
 Valerie Strauss, Colleges and universities can do more to protect students and faculty from hate crimes on campus. Here are some ideas., Wash. Post (Aug. 16, 2019), https://www.washingtonpost.com/education/2019/08/16/colleges-universities-can-do-more-protect-students-faculty-against-hate-crimes-here-are-some-ideas/.
 Healy v. James, 408 U.S. 169, 180-181 (1972).
 Doe v. Univ. of Mich., 721 F. Supp. 852, 853 (E.D. Mich. 1989).
 David L. Hudson Jr., Hate Speech and Campus Speech Codes, Freedom Forum Institute (updated Mar. 2017), https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/free-speech-on-public-college-campuses-overview/hate-speech-campus-speech-codes/.
 Id. (There were 350 speech codes implemented by universities nationwide according to a 1995 report.).
 Doe, 721 F. Supp. at 864.
 Id. at 854.
 See Healy, 408 U.S. at 180, (Justice Powell states that, “…precedents of this Court leave no room for the view that, because the acknowledged need for order, First Amendment protections should apply with less force on college campuses than the community at large.”).
 Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
 R. A. V. v. St. Paul, 505 U.S. 377, 383 (1992).
 Miller, supra note 1, at 315.
 Id. at 316.
 Miller et al., Bias Response Teams: Fact vs. Fiction, Inside Higher Ed (June 17, 2019), https://www.insidehighered.com/views/2019/06/17/truth-about-bias-response-teams-more-complex-often-thought-opinion.
 Speech First, Inc. v. Sands, No. 7:21-cv-00203, 2021 U.S. Dist. LEXIS 181057 (W.D. Va. Sep. 21, 2021) (This case was decided on September 22, 2021, as this article was being written.).
 See Speech First, Inc. v. Schlissel, 939 F.3d 756 (6th Cir. 2019); Speech First, Inc. v. Fenves, 979 F.3d 319 (5th Cir. 2020).
 See Speech First, Inc. v. Killeen, 968 F.3d 628 (7th Cir. 2020); Speech First, Inc. v. Sands, No. 7:21-cv-00203, 2021 U.S. Dist. LEXIS 181057 (W.D. Va. Sep. 21, 2021); Speech First v. Cartwright, No. 6:21-cv-313-GAP-GJK, 1, 2021 U.S. Dist. LEXIS 146466 (M.D. Fla. July 29, 2021).
 Schlissel, 939 F.3d at 756.
 Id. at 762.
 Id. at 765.
 Id. at 771.
 Fenves, 979 F.3d at 319.
 Id. at 335.
 Id. at 338.
 Schlissel, 939 F.3d at 771 (White, J., dissenting).
 Id. at 772.
 Miller et al., Bias Response Teams: Fact vs. Fiction.
 Killeen, 968 F.3d at 628.
 Cartwright, No. 6:21-cv-313-GAP-GJK at 12.
 Sands, No. 7:21-cv-00203 at 4.
 Cartwright, No. 6:21-cv-313-GAP-GJK at 18; Killeen, 968 F.3d at 644; Sands, No. 7:21-cv-00203 at 52.
 Cartwright, No. 6:21-cv-313-GAP-GJK at 12.