If Courts Won’t Quash Universities’ Unconstitutional ‘Bias Reporting Systems,’ State Lawmakers Must
The courts have dealt a major blow to the fight against the Marxist assault on free speech in academia. It is now up to state legislatures to end the culture of censorship that is stifling open discourse on college campuses across the nation.
Last week, the U.S. Supreme Court made the unfortunate decision to deny review of the U.S. Seventh Circuit Court of Appeals’ controversial decision in Speech First v. Whitten. The case sought to challenge the University of Indiana’s (UI) dystopian “bias reporting system,” which was upheld by the Seventh Circuit despite similar programs being previously found unconstitutional by three other U.S. circuit courts. Justice Clarence Thomas dissented from the court’s decision, noting that their failure to intervene “now leaves students subject to a ‘patchwork of First Amendment rights.’”
According to Speech First, a free speech advocacy organization responsible for the lawsuit against UI, there are more than 450 colleges and universities that maintain a bias reporting system or bias reporting team (BRT). A BRT is a select team of faculty and staff tasked with investigating, documenting, and responding to “bias incidents” within institutions of higher education. In effect, these teams serve as the Stasi of the diversity, equity, and inclusion (DEI) regime on college campuses; their goal is to monitor and stamp out free thought and open discourse in the name of inclusion and tolerance.
The Process
To achieve this end, students are encouraged to anonymously report their classmates to the university’s team of Marxist inquisitors anytime they witness a “bias incident,” which the University of Minnesota’s BRT defines as “an act of bigotry, harassment, or intimidation” motivated by one’s social identity. Notably, these incidents include “noncriminal acts of bias” otherwise protected by the First Amendment, such as “microaggressions” and other “unconscious acts of bias.” The University of Idaho’s BRT likewise encourages students to report bias incidents regardless of if they believe the act was intentional or even if they are uncertain it was “related to potential prejudice, intolerance, (or) bias.”
While BRTs usually do not have disciplinary authority themselves, they do have the power to refer individuals accused of a bias incident to members of the administration that do. Most often, BRTs will offer students guilty of bias the chance to undergo reeducation to help deprogram them from their unconscious bigotry. It is no coincidence that these teams are often staffed by the same DEI officers that provide training on combatting unconscious bias, learning “inclusive” communication, and promoting allyship or antiracism.
Chilling Free Speech
These systems expose the inherently tyrannical impulse of cultural Marxism. When the propaganda machine of the DEI office fails to convert students to the cause of diversity and inclusion, the bias response team can at least stamp out dissent by promoting a culture of fear and censorship. Within this environment, conservative students are made to self-censor their viewpoints not only in the classroom, but everywhere on campus out of fear of being reported to university officials by their fellow classmates. To this end, the U.S. Sixth Circuit Court of Appeals concluded in Speech First v. Schlissel that the presence of a BRT on campus “objectively chills speech.”
State Action
The recent actions of the courts prove once again that freedom-conscious states cannot rely on the judicial process to protect our fundamental liberties. Ultimately, the regulation of our nation’s public colleges and universities is the responsibility of state legislatures, who must take it upon themselves to ensure the protection of free speech on college campuses.
Over the past few years, several states have taken legislative action to ban DEI from their public institutions of higher education. Despite these efforts, universities have found ways to circumvent these prohibitions by narrowly interpreting laws, rebranding their DEI offices, and shuffling staff. In many instances, the actions taken by legislatures simply don’t go far enough. For example, last year the Alabama state legislature prohibited the use of public funds on DEI-related programs. Despite this prohibition, the University of Auburn continues to maintain their Bias Education and Response Team.
Fortunately, the Idaho legislature is preparing to show the nation how to properly address the pernicious influence of DEI on our college campuses. Recently, two conservative legislators, Rep. Judy Boyle and Sen. Ben Toews, introduced the Freedom of Inquiry in Higher Education Act with the support of 27 cosponsors across both chambers, including the entirety of both House and Senate leadership.
The act declares that “a subversive ideology derived from the tenets of critical theory has infected the administration of this state’s system of higher education, promoting a culture of division, ignorance, bigotry, and intolerance.” To this end, it seeks “to eliminate all programs and initiatives within all public institutions of higher education predicated on the tenets of critical theory, or more commonly known under the title of ‘diversity, equity, and inclusion.’”
Following the best practices of its predecessors, the Idaho bill forbids the use of affirmative action in admissions or hiring decisions, the establishment of DEI offices, employment of DEI staff, or sponsoring DEI trainings. Where Idaho’s DEI ban really distinguishes itself, however, is its prohibition on mandatory coursework premised on critical theory and, above all, a first-of-its-kind ban on bias reporting systems. Accordingly, Idaho’s Freedom of Inquiry in Higher Education Act promises to be the most comprehensive DEI ban in the nation and a model of conservative education reform.
As DEI continues to evolve, the choice facing the rest of America’s lawmakers is a simple one. As Toews, the primary sponsor of Idaho’s DEI ban, aptly observes, “Should our universities be havens for the search for truth, or should they be vehicles for socialist activism?” If state legislatures still value the pursuit of truth through free and open debate, then they are obliged to follow Idaho’s lead in acting where the courts have failed. It is up to them to liberate our college campuses from the dystopian DEI regime that is giving students a taste of what life was like under the Iron Curtain.
Samuel is the director of the Center for American Education at the Idaho Freedom Foundation and a doctoral candidate at the Hillsdale College Van Andel School of Statesmanship.
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