Within the University of Texas’ (UT) Division of Diversity and Community Engagement, the CCRT was established in 2012 “to create a more inclusive welcoming university community by connecting individuals to the appropriate resources when bias incidents occur.”
The organization has a portal through which accusations of “hate speech” or other “prejudiced behavior” can be reported, anonymously if chosen. The investigative team then evaluates the allegation and recommends action, if any, to the higher-ups.
The body also compiles “bias trends” in annual reports — the last available of which dates back to the 2016-2017 school year.
Speech First — an organization “committed to restoring the freedom of speech on college campuses because we believe that by exposing students to different and challenging ideas” — sued UT in 2018 over its vague speech code and the CCRT tasked with enforcement therein.
A 2019 district court ruling sided with UT, against Speech First, dismissing the challenge to the university’s speech code and CCRT. However, the Fifth Circuit Court reinstated the challenge back in October, thus leading to the settlement reached between the two parties on December 22.
In addition to disbanding its CCRT, the university agreed to remove a broad speech code provision dictating “Be civil. Do not send rude or harassing correspondence,” eliminate two provisions within its Residence Hall Manual, and narrowly tailor its definition of “verbal harassment.”
UT may create an alternative to the CCRT, but Speech First may challenge that iteration as well.
“We are delighted that students at the University of Texas will be able to fully exercise their First Amendment rights without credibly fearing disciplinary action from their administration,” said the group’s President Nicole Neily.
She concluded, “Public universities that maintain policies that have both the purpose and the effect of chilling student speech will be held accountable — and furthermore, this decision clearly shows that the days of mooting lawsuits simply by changing university policies during the course of litigation are over.”
Despite the settlement, a UT spokesman told the Wall Street Journal, “[There was] no evidence students were disciplined, sanctioned or investigated for their speech [and there was] strong evidence of the university protecting the speech rights of conservative students and guests on campus.”
In her October 28 opinion reinstating the lawsuit, Fifth Circuit Court Judge Edith Jones stated, “The chilling effect of allegedly vague regulations, coupled with a range of potential penalties for violating the regulations, was, as other courts have held, sufficient ‘injury’ to ensure that Speech First” meets the standards for proving standing before the court.
The “chilling effect” is a pivotal and recurring theme in nearly every higher education free speech case on which courts have ruled. It occurs whenever a policy set or action taken by an institution, intentionally or not, deters an individual from exercising their First Amendment rights.
A bias response team, the plaintiffs argued, dissuades students from voicing widely held beliefs that may be out of favor on campus. That, coupled with the vague nature of the school’s speech code, could lead to enforcement against students for opinions deemed controversial on the progressive footpaths of UT.
Last year, the University of Michigan settled with Speech First after a similar challenge to its speech code.
The Supreme Court’s “chilling effect” doctrine — ironically developed during former Wisconsin Sen. Joseph McCarthy’s, of “McCarthyism” fame, pursuit of communists in government and society — does not require proof of upbraidings against individuals by an institution. The chilling effect could be passive and still establish a deterrence, courts have ruled.
Campus free speech legislation was passed in Texas by the 86th Legislature to “[protect] expressive activities at public institutions of higher education.”
Higher education institutions have increasingly found themselves under the microscope as their alleged violations of the First Amendment rise in conjunction with the size of their diversity department budgets.
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Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.