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November 20, 2019

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ACLU airs free speech concerns on bias policy

Faculty express concern; UNLV official says proposal would encourage expression

The American Civil Liberties Union of Nevada has put UNLV on notice that a proposed policy outlining how members of the university should deal with possible hate crimes and “bias incidents” would squelch free speech on campus.

UNLV is aiming to adopt the policy in July, before the new academic year begins. The Board of Regents, which governs Nevada’s public higher education system, told its schools in June 2008 to develop policies of this type.

The “final” draft of UNLV’s policy defines “bias incidents” as “verbal, written, or physical acts of intimidation, coercion, interference, frivolous claims, discrimination, and sexual or other harassment motivated, in whole or in part, by bias” based on characteristics including actual or perceived race, religion, sex (including gender identity or gender expression or a pregnancy-related condition), physical appearance and political affiliation. Controversial statements that serve to promote intellectual inquiry do not constitute bias incidents under the proposed policy.

The draft encourages people who believe they have run into bias to take actions that could include reporting the incident to a supervisor or the police, vice president of student affairs and vice president of diversity and inclusion.

Allen Lichtenstein, general counsel of the ACLU of Nevada, said the broad definition of bias incidents includes actions protected by the U.S. Constitution, such as making comments that denigrate somebody’s race or religion. The proposed policy gives the impression, he said, that someone who makes such remarks will be in trouble with the university or the law.

“Are those statements necessarily designed to advance intellectual inquiry? Probably not,” Lichtenstein said. “Are they protected by the First Amendment? Absolutely.”

The ACLU of Nevada has offered to work with UNLV to revamp the policy, and President David Ashley said the university will take the organization’s input. The fourth and most recently available version of the document, dated March 9, says it is the “final version,” but Ashley said it is still a “work in progress.”

Christine Clark, UNLV’s vice president of diversity and inclusion, defended the policy, which she helped develop. She said a close reading makes it clear that the document is designed to encourage free speech, supporting people “in developing the skills and comfort to sustain dialogue on complex and controversial issues over time.”

The March version, sent to faculty leaders last week, outlines “informal” and “formal” processes for handling bias, encouraging victims to use “informal options” first in cases where they do not feel threatened. These options include talking to alleged offenders about what has occurred.

Clark said in cases where people accused of bias have not committed a crime or violated a university code of conduct, the policy does not compel them to participate in dialogue about the perceived bias or take other action.

“Somebody could decide, ‘I don’t want to participate in this conversation. I don’t want to be a part of the mediation ... I don’t want to talk to my colleague about how they were made to feel,’ ” Clark said.

But the ACLU of Nevada is not alone in criticizing the draft. Some faculty leaders who have seen the proposed policy worry about the effect it will have on academic freedom.

Many members of the campus community still remember what happened to Hans-Hermann Hoppe, an economics professor who ran into trouble with the university administrators after a student complained that Hoppe had created a hostile class environment by saying that gays are less likely to save for the future in part because they are less likely to have children.

UNLV officials stopped trying to censure Hoppe only after the ACLU took up the professor’s cause.

Bryan Spangelo, a faculty senator and former faculty senate chairman, said the draft of the policy regarding possible hate crimes and bias incidents gives the impression that the police should be the first point of contact for people with serious complaints about bias.

In a section of the document titled “Universal Formal Reporting: Hate Crimes and Bias Incidents,” the UNLV police department is the first agency mentioned. Under the formal reporting process, non-police administrators take over investigation of an accusation of bias only after a police supervisor decides that an incident does not constitute a hate crime.

“The mechanism is alarming,” Spangelo said.

“If someone really has a complaint, they are not going to bother with an informal process. They’re simply going to move to the formal.”

Spangelo said the “nebulous” definition of a bias incident makes the proposed policy “ripe for abuse.”

The formal reporting process the draft outlines calls for bias incidents that do not violate student or employee confidentiality to be documented on the Web site of the Conflict Resolution Network, a campus group made up of individuals whose roles include formal responsibility for some aspect of conflict resolution.

The formal reporting process also states that all bias incidents shall be reported to Clark’s office and the offices of the vice president of student affairs.

John Filler, chairman of the faculty senate, said he asked that the university delay adopting a policy until after the faculty senate has had an opportunity to review a draft at its next scheduled meeting, in August.

This week, however, Ashley said he wanted to have the policy in place before the start of the next academic year. He noted that Clark has worked with faculty leaders to revise the draft, including meeting with the full senate to discuss the issue.

“There has been a reasonable level of consultation and direct input from faculty members who are on the senate,” Ashley said.

Editor's Note: This story has been corrected. An earlier version had the wrong month for when the Board of Regents told its schools to develop the policy.

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