Change these 'unconstitutional' policies, legal organization tells 12 universities

On Monday night, Southeastern Legal Foundation (SLF) sent letters to 12 universities across the country demanding that they change “unconstitutional” policies that impede students’ freedom of speech. 

The Roswell, Georgia-based nonprofit primarily identified potential free speech violations, with eight letters challenging bias reporting systems, which professors and students use to report on the so-called offensive speech from their peers. 

Two letters challenged university policies that regulate on-campus flyers and another two highlighted restrictions on students’ ability to manage recruitment tables on public property. 

SLF sent the 12 letters to: Southern Utah University; Clemson University; University of South Carolina, Columbia; University of Maine, Orono; Santa Rosa Junior College; Iowa State University; Bowling Green State University, Illinois State University; Rutgers University; Miami University of Ohio; University of Wisconsin, Milwaukee; and Louisiana State University. 

“College is meant to be the time and place for students to engage in civil discourse and prepare themselves for the real world,” Kimberly Hermann, general counsel at SLF, said in Monday’s press release. “Instead of fostering discussion, colleges across our nation insist on silencing conservative and libertarian students they disagree with, doing a disservice to their students and our country.” 

“Students have had enough. After the time lost due to the pandemic, they just want to engage in normal speech activities on campus again—something that is fundamental to the college experience,” CeCe O’Leary, director of the 1A Project, said in the press release. “But colleges are silencing them once again, this time through policies that are often buried on their websites.”

Below is a breakdown of each university policy:

Southern Utah University- Bias Reporting System

Southern Utah University (SUU) is one of the 8 schools receiving a letter from SLF for its bias reporting system. 

“SLF urges the University to remove the bias reporting system altogether from campus…[b]ut at a minimum, the University must remove vague language like “demean,” “embarrass,” and “stereotype” from its definition of bias,” SLF’s demand letter stated. “It must clarify that speech cannot be investigated or punished through reporting forms, no matter how offensive students perceive the speech to be.”

Bias is defined by SUU’s policy as, “speech, conduct, or some other form of expression or action that is motivated wholly or in part by prejudice or bias.”

The university, located in Cedar City, further explains any speech designed to “discriminate, demean, embarrass, assign stereotype[s], harass, or exclude” due to “race, color, ethnicity, national origin, language, sex, gender, gender identity, or expression, sexual orientation, size, disability, age, veteran status, or religion“ is considered enough to file a report for “hate speech” or bias. 

SUU also provides an anonymous form that can be filled out if the individual does not wish to give out their information. 

Public universities are considered public spaces open to freedom of expression. 

“We are concerned that the reporting system infringes on students’ First Amendment rights because it allows officials to discriminate against the content and viewpoint of speech,” SLF stated. “As such, we demand that the University revise this unconstitutional policy.”

Clemson University- Bias Reporting System

SLF also expressed concern regarding Clemson University’s bias reporting system, arguing the policy is “unconstitutionally vague and overbroad.” 

“We are concerned that the policies infringe on students’ First Amendment rights because they are unconstitutionally vague and overbroad,”SLF writes. “[T]hey allow officials to discriminate against the content and viewpoint of speech, and they chill freedom of expression.”

The South Carolina university’s policy requires the burden of proof to be placed on the defendant. 

“For criminal court proceedings, the standard of proof is guilty beyond a shadow of a doubt. For the university’s disciplinary process the burden of proof is what we consider the Preponderance of the Evidence. This means that it is more likely than not that you have violated a university policy,” the policy reads. 

SLF argues policies like this one fail to provide students their right to due process and will chill students’ freedom of speech and expression on campus. 

“The University must clarify that offensive speech and hate speech are protected by the Constitution and will not be investigated or punished throughout its anti-harassment policies, reporting form, and related procedures,” the letter states. 

SLF also demanded that Clemson remove language from the policy that would compel students to agree or disagree with a particular viewpoint to avoid punishment. 

University of South Carolina, Columbia- Bias Reporting System

SLF alleges the University of South Carolina, Columbia’s (USCC) bias reporting system is “unconstitutionally vague and overbroad.” SLF demands that USCC remove all references to the reporting form from its website.

Currently, USCC students can report “incidents of bias or hate” to the Office of Civil Rights and Title IX through a “Bias and Hate Incident Form.”

“While our ultimate goal is a unified and inclusive campus environment, incidents of bias and hate do occur,” the website states. 

SLF demands that USCC clarify on its website that “‘hate’ and ‘bias’ are not the same as unlawful discrimination and harassment.” Additionally, the organization demands the university “clarify that only certain forms of conduct are subject to the University’s investigation and resolutions process.”

Meetings with university administrators would then be “purely voluntary,” SLF states.

The University of Maine - Orono- Bias Reporting System

SLF demands that the Maine university remove the Bias Response Team from campus, as well as “clarify that speech is protected and cannot be subject to any investigation or punishment.”

Currently, the BRT addresses reports of alleged “bias or hate-related” incidents on campus, even in the case of constitutionally protected speech.

SLF demands the university link its Freedom of Speech website to the BRT page, should it remain in effect.

Santa Rosa Junior College- Prior Restraint, Posters

SLF’s demand letter to Santa Rosa Junior College (SRJC) states its concern “that the [Inter Club Council Grant Application] infringes on students’ First Amendment rights… [and] [s]uch unfettered discretion is a prior restraint, opens the door to discrimination, and unconstitutionally chills freedom of expression. As such, we demand that the University revise this unconstitutional policy.”

The California college’s form requires students to prove how their event will “benefit students.”

“Describe your grant proposal in detail: How does this grant align with your club’s mission? How will this grant benefit students?” the grant states.

The application does not define what the ICC considers a “benefit” to students at SRJC and subjects student groups to potential viewpoint discrimination. 

SLF determined this prior restraint violates students’ First Amendment rights and should be removed from the grant application. 

“The ICC must therefore remove any questions on its grant application that get to the content of a speech activity or the views of a student organization. This includes asking whether a planned activity will benefit the student body,” the letter reads. 

Iowa State University- Prior Restraint, Tabling

SLF’s demand letter to Iowa State University (ISU) criticizes a university policy that does not allow students to table for organizations or causes on campus without the expressed permission of ISU, despite the school’s status as a public university.

“We are concerned that the policy infringes on students’ First Amendment rights because it is an unreasonable restriction on the time, place, and manner of speech, and it imposes a prior restraint on freedom of expression,” the letter reads. 

The Ames, Iowa, university requires students to fill out a form to use “booth or tabling space,” however, “table and booth locations are only available to recognized student organizations.”

Even student groups officially recognized by the school are only allowed to reserve space for tabling 8 times per semester. 

SLF argues that through the university’s tabling policy “active student organizations are silenced” after they have filled their allotted 8 reservations.

“This restriction goes beyond a reasonable time, place, and manner restriction because it is not narrowly tailored to achieve a significant interest, and it fails to provide alternative channels for communication,” the letter reads. 

Bowling Green State University- Bias Reporting System

SLF demands Bowling Green State University (BGSU) remove its bias reporting system from campus, as well as “remove ‘language’ from its definition for bias and claridy that speech is protected and cannot be subject to any investigation or punishment.”

The bias reporting system at the Ohio university is operated by the Division of Student Affairs. Students can file a report for “name-calling, stereotyping, belittling, or excluding others based on their identity.”

Reports are filed with the Office of the Dean of Students. Community members are welcome to file a report if they experienced, witnessed, or are “aware of bias-related behavior or action to another Falcom community member(s).”

SLF also demands that BGSU link its Freedom of Speech website to the bias reporting form and website, as well as stipulate that constitutionally protected speech cannot be investigated. 

All meetings with the Dean of Students or other administrative departments would be “purely voluntary,” SLF states.

The Division of Student Affairs website published a list of all reports filed between 2016-2021.

Illinois State University- Prior Restraint, Posters

Located in the city of Normal, Illinois State University (ISU) claims to be “strongly committed” to the “right of freedom of expression and the open exchange of ideas stimulate debate, promote creativity, [which] are essential to a rich learning environment.”

SFL argues one of the university policies appears to go against that mission. 

“It is the duty of college officials to protect and defend the voices of every student on campus,” the letter reads. “But through this facilities use policy, officials are emboldened to discriminate against students based on the content of their speech and the views they express.”

Under the “General University Facility and Space Use Policy,” students are limited in how they can promote events, groups, or causes on campus. 

“All temporary signage and displays (including banners and exterior temporary signs) must conform to University standards for type of sign structure, locations, method of messaging, and message content. These signs or displays require prior approval from University Marketing and Communications (UMC) and/or Facilities Management,” the policy reads. 

The policy does not indicate what messages might or might not be prohibited. 

In its demand letter, SLF states “[t]he University can only impose reasonable, content-neutral restrictions on the time, place, and manner of speech, including limits on flyer size, weight, height, or material. The University must therefore revise its facilities use policy to eliminate “message content” as a condition for approval.”

Rutgers University- Bias Reporting System

SLF demands that Rutgers University (RU) remove its Bias Incident Response Team (BIRT) from campus and clarify that constitutionally protected speech cannot be investigated.

Rutgers is located in New Brunswick, New Jersey. 

The BIRT relays reports to the appropriate university department for investigation. It may recommend potential solutions, including sending “letters to the community,” recommending “educational” sessions or training, issuing a “social media response,” or sending an email to a particular group.

SLF demanded all administrative meetings scheduled because of the BIRT be “purely voluntary.” The law firm also demanded BGSU update its BIRT with free speech resources and remove the terms “verbal,” “written,” and “harm” from its definition of bias.

Miami University of Ohio- Prior Restraint, Tabling

Miami University of Ohio, located in Oxford, requires student organizations to obtain permission to use any public space on university property before tabling. SLF contends that the policy “undermines” student First Amendment rights on campus.                            

“The facilities use policies undermine this bedrock principle and raise serious First Amendment concerns because they are vague and impose unreasonable restrictions on the time, place, and manner of speech on campus,” SLF writes. 

Under the public university’s “Use of University Property” policy, “[a]ny Student Organization seeking to use University Property must make a reservation through the appropriate Space Scheduler.”

SLF states in its demand letter to the university that “[t]he University must clarify that it will not assess content or viewpoint when approving a reservation, but that it will only grant or deny a request based on availability.”

In addition, SLF demands that the university “explain in its Use of University Property policy, its On-Campus Events policy, and its Public Speaking, Leaflet Distribution, and Demonstrations policy that students are allowed to spontaneously gather at any time to hand out flyers and otherwise engage in speech activities.”

University of Wisconsin, Milwaukee- Bias Reporting System

SLF demands that the university remove its bias reporting system from campus, and clarify that constitutionally protected speech cannot be investigated. 

The University of Wisconsin, Milwaukee (UWM) students can file bias reports to the Office of Equity/Diversity Services (EDS). 

The EDS website defines a bias incident as “any disruptive conduct — oral, written, graphic or physical — that is directed against an individual or individuals, because of their actual or perceived protected characteristics.”

SLF also demands that the university hyperlink free speech resources to the bias reporting system website, as well as remove the terms “oral” and “written” from its definition of bias.

UWM community members who were “subjected to” or “witnessed” an incident can fill out the “Hate/Bias Reporting Form.” Reports may be recommended to other campus departments after review.

All meetings resulting from the bias reporting system must be “purely voluntary,” SLF states.

Louisiana State University- Bias Reporting System

SLF demanded Louisiana State University (LSU), located in Baton Rouge, remove its bias reporting system from campus,  as well as remove the terms “harms,” “stereotypes,” and “marginalizes” from its definition of bias.

LSU is located in Baton Rouge. 

LSU’s Division of Student Affairs operates an “online reporting system,” which is referred to as“LSU Cares.” The program invites students, faculty, and staff to file reports concerning “academic intervention, academic misconduct, behavioral misconduct, bias or discrimination, hazing, sexual misconduct, student grievances, [and] students of concern.”

The brochure specifies that “bias or discrimination” extends to “gender/identity bias” and “hate speech,” and such reports are filed under a separate form.

According to the Student Advocacy & Accountability website, staff review reports using “a CARE approach (Communicate, Assess, Refer, Educate) and then determine a response that includes appropriate campus resources.”

SLF demanded the university clarify that constitutionally protected speech cannot be investigated and that all meetings resulting from reports are “purely voluntary.”

Campus Reform contacted each university for comment and will update accordingly.