A legalistic approach to bias incidents on campus is not enough

Imagine the following scenario. A campus visitor wears a T-shirt depicting a Confederate battle flag to the dining hall. Several students approach him, stating that the T-shirt is hateful and has no place on campus. They ask campus police to remove the visitor. Campus police confirm that the visitor is lawfully present as a guest of an enrolled student, so they take no action. Students petition the administration asking that the visitor be barred, their student host be disciplined and other measures be taken to bar hateful speech from campus. What happens next?

In recent years, students have reported increasing numbers of incidents of racist graffiti and interpersonal slurs on campus. Conflicts over invited speakers – including those who espouse racist ideals, encourage antisemitic ideology or perpetuate misinformation – are among the best publicised instances of the tension between free expression and inclusion. And sometimes colleges’ narrowly legalistic approach inflames rather than assuages the tensions.

The first amendment protects groups’ freedom to invite speakers – and the speakers’ right to use public forums – even if their speech will be hostile or outright dishonest to others in the community. Displaying a Confederate flag is an example of a protected expression, so a public university could not take steps to deter or punish it.

But not all biased speech is protected, either by the first amendment or by principles of academic and intellectual freedom. Take a 2017 incident in which someone hung nooses with bananas in them around a campus that had just elected its first African-American woman student body president. The fact that the bananas were marked with the name of her historically black sorority, on top of the obvious reference to lynching, was taken to indicate that the intention was to threaten black students and the incident was investigated as a hate crime.

The perpetrator was never found, but the university still needed to respond to the harm the incident caused – including credible threats to student safety, emotional trauma and concerns that the incident reflected campus or community culture. And the same is true of the Confederate flag example. Even though it was protected speech, its display might be deeply hurtful to many students, taken as a claim that they are unworthy of equal citizenship, so doing absolutely nothing about it would not be wise.

In other words, the question of legality is separate from the question of harm. Asking whether a disputed action involves protected expression is a necessary step, and we must determine whether there is a conduct violation or a duty to investigate under civil rights law; it would be irresponsible (and possibly costly) not to. However, this legalistic frame can never be the sole or first response. The more salient question is whether the incident has caused harm. It is our responsibility to support students and workers in the context of our expressive and academic freedom, including by empathising with victims and responding to the harms that come with these freedoms.

The legalistic frame is particularly inadequate on a campus that takes a restorative, communal approach to speech that is transgressive, hateful or simply challenging for the people involved. If our goal is to build and repair community bonds, then concepts such as “fault” and “credibility” are a distraction.

A legalistic mindset can also contribute to students’ perception that we are “doing nothing” about hateful speech. When a community member comes to us with a concern, it is incumbent on educators not to interpret this solely as a request for punishment (in which case, the most likely response will be “no”), but also as a request for support or education.

In the legalistic framework, accountability and punishment can look the same. But punishment is not a learning process. It does not require the perpetrator to acknowledge the harm they have caused. True accountability, by contrast, centres the person who has been harmed and actively involves them in determining what they need to be made whole again. It requires the perpetrator to make amends to the community, but not necessarily in a punitive way. “Harm circles” can be used to bring together those who have harmed and those who have been harmed, with discussion usually focusing on three key questions: what happened? What is the impact? And how do we make things right? Examples of answers to the last can include making a sincere verbal or written apology, writing a reflection paper and organising a social justice project. The result can be a teachable moment for all involved, fostering healing for those negatively affected.

Another key principle when responding effectively to bias incidents is to recognise that, although understanding perpetrators’ intent is important, impact matters most. University leaders can acknowledge impact and the real harm that a person experiences without proving that this harm was intended or that the expression breached any guidelines.

We recommend letting students know at the beginning of each semester that speech can have an impact separate from intent even if it is protected speech. Talk to students about how expressive and academic freedom works in tandem with a variety of other concerns, including that speaking our minds in an educational context can hurt feelings or replicate traumas and power dynamics from outside the classroom.

This should both keep bias incidents to a minimum and make resolving them when they occur considerably less divisive – whatever the legal status of the statements in question.

Neijma Celestine-Donnor is associate dean and director of the Office of Diversity, Equity & Inclusion at the University of Maryland School of Social Work. Lara Schwartz is a senior professorial lecturer in the Department of Government at the American University, Washington DC.