Challenge to Univ. of Central Florida's "Bias-Related Incidents" Policy Can Go Forward

More from today's Eleventh Circuit decision in Speech First, Inc. v. Cartwright (written by Judge Kevin Newsom and joined by Judge Stanley Marcus and District Judge Richard Story); seems quite right to me:

The bias-related-incidents policy creates a mechanism by which a UCF student can be anonymously accused of an act of "hate or bias"—i.e., an "offensive" act, even if "legal" and "unintentional," that is directed toward another based on any of a number characteristics that echo (but do not precisely mirror) those listed in the discriminatory-harassment policy. The JKRT "monitor[s]" and "track[s]" bias-related incidents, "coordinate[s] university resources," marshals a "comprehensive response[]," and, where necessary, coordinates "interventions" among affected parties….

The district court held that Speech First lacked standing to challenge the bias-related-incidents policy because, the court said, the JKRT couldn't punish students itself but, rather, could only refer them to other university actors for discipline. We hold that the district court erred in focusing so singularly on the JKRT's power to punish. The reason, already explained, is that a government actor can objectively chill speech—through its implementation of a policy—even without formally sanctioning it. Punishment is no doubt relevant to the objective-chill analysis, and may well be sufficient to prove the requisite chill, but analogous precedent makes clear that it is not decisive and, in any event, is not uniformly necessary.

The seminal case is Bantam Books, Inc. v. Sullivan  (1963). There, the Supreme Court considered the constitutionality of certain actions of the "Rhode Island Commission to Encourage Morality in Youth," whose charge it was to "educate the public concerning any book, picture, pamphlet, ballad, printed paper or other thing containing obscene, indecent or impure language, or manifestly tending to the corruption of the youth." The commission's usual practice was to notify a bookseller "on official stationery that certain designated books or magazines distributed by him had been reviewed by the Commission and had been declared by a majority of its members to be objectionable for sale," to "thank[ him] in advance[] for his 'cooperation,'" to "remind[ him] of the Commission's duty to recommend to the Attorney General prosecution of purveyors of obscenity," and to inform him that "[c]opies of the lists of 'objectionable' publications were circulated to local police departments."

The state defended against the bookseller's contention that the challenged practices chilled his First Amendment rights on the ground that the commission had no formal disciplinary authority: "[I]t does not regulate or suppress obscenity but simply exhorts booksellers and advises them of their legal rights." The Court rejected as "untenable" the state's argument, which was "premised on the Commission's want of power to apply formal legal sanctions."

The Court likewise rejected the state's contention that the bookseller's "compliance with the Commission's directives" was in any meaningful sense "voluntary," despite the fact that a bookseller was technically "'free' to ignore" that body's notices: "People do not," the Court emphasized, "lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around." Id. at 68. Rather, the Court held that even "informal sanctions"—including "coercion, persuasion, and intimidation"—can sufficiently inhibit expression as to violate the First Amendment, and to give a plaintiff standing to sue. It is necessary, the Court held, to "look through forms to the substance and recognize that informal censorship may sufficiently inhibit"—i.e., chill—"the circulation of publications to warrant injunctive relief." …

The Second Circuit's decision in Okwedy v. Molinari (2d Cir. 2003) (per curiam), is similar. The plaintiffs in that case hired a billboard company to display signs in Staten Island denouncing homosexuality. The Staten Island Borough president sent a letter to the billboard company stating that the signs were "unnecessarily confrontational and offensive" and "convey[ed] an atmosphere of intolerance [un]welcome in our Borough," and he asked a representative of the company to contact the "Chair of [his] Anti-Bias Task Force to discuss further the issues [he had] raised in th[e] letter." Capitulating, the billboard company removed the signs…. The Second Circuit … [held] that "[a]lthough the existence of regulatory or other direct decisionmaking authority is certainly relevant to the question of whether a government official's comments were unconstitutionally threatening or coercive, a defendant without such direct regulatory or decisionmaking authority can also exert an impermissible type or degree of pressure." The billboard company, the court of appeals emphasized, "could reasonably have believed," based on the information available to it, that the borough president "intended to use his official power to retaliate against it if it did not respond positively to his entreaties."

Bantam Books and Okwedy demonstrate a commonsense proposition: Neither formal punishment nor the formal power to impose it is strictly necessary to exert an impermissible chill on First Amendment rights—indirect pressure may suffice. To be sure, the University wasn't quite as heavy-handed here as were the government actors in Bantam Books and Okwedy. But just as surely, the students targeted here are—for the most part—teenagers and young adults who, it stands to reason, are more likely to be cowed by subtle coercion than the relatively sophisticated business owners in those cases. And the question for us is whether the average college-aged student would be intimidated—and thereby chilled from exercising her free-speech rights—by subjection to the bias-related-incidents policy and the JKRT's role in enforcing it.

The answer to that question, we think, is yes. No reasonable college student wants to run the risk of being accused of "offensive," "hostile," "negative," or "harmful" conduct—let alone "hate or bias." Nor would the average college student want to run the risk that the University will "track[]" her, "monitor[]" her, or mount a "comprehensive response[]" against her. And as with the discriminatory-harassment policy, the breadth and vagueness of the bias-related-incidents policy exacerbates the chill that the average student would feel.

The policy, for instance, reaches "any behavior or action"—even if both "legal" and "unintentional"—that is "directed towards an individual or group" based on "actual or perceived identity characteristics"—including but not limited to those rooted in any of at least 11 different traits. So too, the policy defines a "bias act" as anything that "may contribute to creating an unsafe, negative, unwelcoming environment [for] the victim, or anyone who shares the same social identity as the victim, and/or community members of the university." And the policy applies to a non-exhaustive laundry list of behaviors—including, among others, "graffiti [and] signs," "confrontation," and "gestures." Pair that broad, vague, and accusatory language with the task-force-ish name of the investigating organization—the Just Knights Response Team—and we think it clear that the average college student would be intimidated, and quite possibly silenced, by the policy. Because the bias-related-incidents policy objectively chills student speech, Speech First's members have standing to challenge it….

Because it found (erroneously, we conclude) that Speech First lacked standing to challenge the bias-related-incidents policy, the district court never considered that policy on the merits. Accordingly, we remand to the district court to decide in the first instance whether the chill caused by the bias-related-incidents policy is substantial enough to violate the First Amendment. Relatedly, we leave it to the district court to determine in the first instance whether and to what extent the objective chill that gives Speech First Article III standing likewise establishes its claim on the merits….

Judge Richard Story joined the majority opinion, but added:

I concur in the opinion of the Court but write separately to make clear that the opinion does not prohibit a university from establishing a program that provides students an opportunity to engage in civil discussions concerning differing viewpoints. "Colleges and universities unquestionably benefit from the flow of ideas, debate, and deliberation on campus. These institutions should strive to foster an environment where critical thoughts, and sometimes strong disagreement, can flourish."

The only restriction placed on such programs by today's decision is an important one. The program may not be designed in such a way as to chill First Amendment rights. Insisting on compliance with the First Amendment should not prevent universities from exploring ways to lower the temperature on debate and help their students learn how to listen to and understand opposing viewpoints. As acknowledged by Speech First, the creation of such programs without running afoul of the First Amendment is possible.

Here are more details on the policy:

The "Bias-Related Incidents" policy has several parts. First, it defines the key term—"bias-related incident"—as follows:

A bias-related incident is any behavior or action directed towards an individual or group based upon actual or perceived identity characteristics or background. This bias motivates an individual to act in an offensive manner towards an individual or group including but not limited to: race, sex (including gender identity/expression), color, religion, ancestry, national origin, age, disability, veteran status, military status, or sexual orientation. Such acts may result in creating a hostile environment and may have a negative psychological, emotional, or physical impact on an individual, group, and/or community.

Second, the policy provides that "[b]ias-related incidents occur without regard to whether the act is legal, illegal, intentional, or unintentional," and that such an incident need "not necessarily rise to the level of a crime, a violation of state law, university policy, or the student code of conduct." Rather, a "bias act" is one that "may contribute to creating an unsafe, negative, unwelcoming environment [for] the victim, or anyone who shares the same social identity as the victim, and/or community members at the university."

Third, the bias-related-incidents policy states that "[i]ncidents which occur on campus that are not covered by formal policies and procedures but have the effect of harming individuals or groups may be addressed by the Just Knights Response Team (JKRT) protocol"—of which more below. That "protocol may be initiated in cases when it is clear that the incidents have harmful effects on persons or groups based upon their race, sex (including gender identity/expression), color, religion, ancestry, national origin, age, disability, veteran status, military status, or sexual orientation."

Finally, the policy provides a non-exhaustive list of "types of bias-related incidents." They "may include (but are not limited to)" any of 13 behaviors, ranging from "physical injury" and "stalking," on one end of the spectrum, to "graffiti [and] signs," "confrontation," and "gestures," on the other end.

As just noted, the bias-related-incidents policy is implemented by the JKRT, which is made up of UCF students, faculty, and staff. University staff members who serve on the JKRT include representatives from the offices of Student Development and Enrollment Services, Housing and Residence Life, Social Justice and Advocacy, Faculty Relations, and the UCF Police Department.

UCF's website describes the JKRT as follows:

The JKRT is here to provide assistance in the unfortunate event that you have experienced or witnessed a hate or bias related incident. This site is designed to allow the reporting of bias incidents to the JKRT team to ensure the most appropriate university response.

UCF is also committed to tracking patterns of bias and other incidents at the University that might prevent the community from thriving. It is our goal, as a team, to effect positive change in our campus community by providing a platform for individuals to report hurtful actions that have occurred. In return, we will create an open and transparent university community response to the handling of these incidents.

JKRT is intended to be a resource for anyone who wants to examine issues of bias, discrimination, or hate. Whatever your reasons are for visiting this site, please be assured that UCF holds as one of its goals to create a more inclusive and diverse campus. We are also committed to providing a safe and welcoming living and learning community for all our students.

The website goes on to explain the JKRT's "Purpose Statement" in the following terms:

The purpose of the Just Knights Response Team (JKRT) is to act as a clearinghouse for any bias-related incidents that may occur on UCF campuses. In this role, the JKRT will receive, monitor, refer, and, as necessary, coordinate university resources to these incidents that impact the university community.

The team, made up of UCF faculty, staff, and students, provides a safe space for students, who are witnesses to or targets of bias, to communicate experiences, to ensure comprehensive responses, and proactively address issues of civility and respect.

And it describes the JKRT's "Policy" as follows:

The Just Knights Response Team (JKRT) is an interdivisional team that assesses bias incidences in order to coordinate university resources for the creation of effective interventions and future incident prevention programming. The JKRT creates timely interventions to incidents that are sensitive to the rights of all parties involved. It is intended that any JKRT programming or intervention will be educational at its core. It will involve a variety of activities including discussion, mediation, training, counseling and consensus building. Through the voluntary participation of the persons involved in and impacted by bias incidences, the JKRT's interventions and prevention programming will foster a sense of civility and campus community encompassing respect and understanding that supports a multicultural and diverse campus environment.

A student who feels that he has been the victim of a bias-related incident can report it anonymously through a complaint form on the JKRT's website. The complainant is directed to describe the incident (date, location, etc.), to "list the individuals involved," and to specify his or her "desired outcome." The JKRT's website warns that the information provided by a complainant "may be shared with the Office of Student Conduct," the "Office of Student Rights and Responsibility," or the "UCF Police Department."

{When a UCF student is reported to have engaged in a bias-related incident, the JKRT sends that student the following email:

Greetings,

My name is [INSERT NAME]. The University of Central Florida is committed to tracking patterns of bias and other incidents at the university that might prevent the community from thriving. I am a university employee who serves on the Just Knights Response Team (JKRT).

The Just Knights Response Team (JKRT) is an interdivisional team that assesses bias incidences in order to coordinate university resources for the creation of effective interventions and future incident prevention programming. The JKRT creates timely interventions for incidents that are sensitive to the rights of all parties involved. It is intended that any JKRT programming or intervention will be educational at its core. Interventions involve a variety of activities including discussion, mediation, training, counseling, and consensus-building. Through the voluntary participation of the persons involved in and impacted by bias incidences, the JKRT's interventions and prevention programming will foster a sense of civility and campus community encompassing respect and understanding that supports a multicultural and diverse campus environment.

Please note, JKRT is not an extension of UCF Human Resources nor the Office of Student Rights and Responsibilities. We have no authority to dispense punitive measures. We value anonymity and privacy, however, at times there is certain information that we must disclose to other university officers (ex. Title IX violations, criminal activity and/or imminent threats).

We have received a report of an incident you may have been involved in or reported. I would like the opportunity to speak with you regarding this matter. Your participation is voluntary.

If you are interested in speaking with me, please reply back with a preferred contact number. I will call you to schedule a time for us to meet or speak via the phone. If I do not receive a reply within two weeks, I will assume you do not have an interest in speaking with me and will close out this JKRT case.

I look forward to hearing from you.

[INSERT NAME]

University of Central Florida [e-mail]}