Bowing to External Pressures: How the Threat of Lawsuits Dilutes Bias Response in Higher Education

Case and Participant Identification

To identify institutional cases, I primarily sought universities that had changed their approach to bias response within the 5 years prior to data collection (e.g., as a result of an active, settled, or threatened lawsuit, created or disbanded a team, or created an alternative to a BRT). Presumably, any such change might be in response to, or have necessitated, a (re)examination of some of the internal and external conditions informing the approach. To identity and select sites, I created a preliminary list of 25 institutions with a recent change to bias response, as identified through media articles from sources including Inside Higher Ed, The Chronicle of Higher Education, and local newspapers. I sought both public and private institutions in various legal and political contexts. Identification of sites was heavily influenced by access to and willingness of institutions to participate. At many institutions, my invitations were declined, or multiple administrators did not respond to my communication. Because of the reticence of administrators to speak with me, I built in multiple layers of confidentiality so that individual participants and institutions would not be identified (McClure & McNaughtan, 2021). I do not identify the state in which institutions are located or the institutional roles/titles of administrators who participated (a strategy in line with literature on interviewing higher-education elites; McClure & McNaughtan, 2021); I also have altered team names and other details to ensure that institutions are not identified. Thus, my description of institutions throughout this paper is primarily in aggregate rather than a detailed explanation of each institutional context that could identify the institution or participants.

The final group of institutions in the study included three public universities and one private university, including a mix of small (<5,000 students) and large (25,000+ students) institutions. The institutions were located in four different states that could be described as red (conservative) or purple/swing states—these states in particular have seen recent legislation targeting education such as anti–critical race theory bills, and thus, I assumed that administrators would be particularly cognizant of external pressures their institutions faced. I collected data throughout 2021 and 2022. This data-collection period occurred before the primary wave of state-level anti-DEI bills targeting higher education in 2023–24 and prior to high-profile campus protests following the October 7, 2023, attack on Israel and heightened attention to anti-Semitism on college campuses. Yet, the insights offered by administrators before these events are still instructive in terms of comprehending their approaches to understanding and reacting to bias on campus and controversies regarding hateful speech.

At each institution, I worked initially with one administrator who functioned as a gatekeeper and introduced me to other administrators directly involved with the bias response (or alternative) program on campus. I interviewed five to seven administrators at each institution, for a total of 23 administrator interviews across the study. Administrators’ primary functional areas of responsibility included DEI (e.g., chief diversity officer, multicultural center director), student affairs (e.g., vice president for student affairs, chief of staff), academic affairs (e.g., provost), and legal affairs. Participants self-identified as Asian (7%), biracial (7%), Black/African American (42%), Hispanic/Latino/a (7%), and White (42%). Participants also identified as male (21%), nonbinary/gender fluid (7%), and female (71%); although participants were asked to indicate their gender(s) in an open-response field, multiple participants included terms associated with physical sex (e.g., female, male).

Data Collection

Administrator interviews functioned as the primary data source for the study, with one-on-one interviews ranging from 45 to 90 minutes. I developed a semistructured interview protocol to understand the current approach to bias response or alternative mechanism for addressing bias on campus. Interviews were audio recorded and professionally transcribed. Interview protocols addressed topics including institutional values (namely free expression and equity/inclusion), structures for responding to bias incidents and hate speech, how these structures have changed or evolved, internal and external pressures, and specific incidents. I primarily collected data in person but also gave all participations the option for a Zoom interview if they preferred, an option about a quarter of participants used. Each institution honored the institutional review board approval of my home institution to recruit on their campuses.

Secondary data-collection methods included public and internal documents. Public documents included bias response websites and reporting forms, news articles in campus or national media outlets, and university or president/chancellor statements on bias incidents, freedom of expression, and campus diversity issues. Internal or unpublished documents included task force reports, meeting minutes, and response protocols. Approximately ten documents per campus were collected. These documents were collected to triangulate interview responses as well as to provide additional background and context about internal and external pressures on bias response procedures.

Data Analysis

I examined institution-specific documents before and after campus visits, primarily to ground my understanding of the campus context. Following each campus visit when interviews were conducted, I created analytic memos summarizing what I heard from administrators and how the institution’s overall approach was influenced by internal and external pressures. I continued analysis within each case after interviews were transcribed by reading transcripts and adding content to analytic memos, loading transcripts and all documents into Dedoose for further analysis, and applying both open codes (i.e., significant concepts or statements derived inductively from data) and theoretical codes corresponding to theoretical perspectives (e.g., repressive/creeping legalism, isomorphic pressures, free-speech absolutism) and areas directly relevant to the research questions (e.g., external pressures). This resulted in brief case reports for each of the four institutions. The role of the theoretical perspectives used in this study did not crystallize until the data-analysis phase. As I conducted the study, I was surprised to find the outsize role of the threat of lawsuits (particularly at the three public institutions) and how this urgent concern was shared across geographic contexts. Thus, after data collection and as I continued to read current research about bias and freedom of expression in higher education, I determined that concepts of creeping and repressive legalism and the double liability dilemma would be appropriate theoretical perspectives to guide further analysis and reporting of results in this paper.

Once I completed initial analyses within each case, I sought to craft a case report summarizing the multiple reports and addressing the project’s overall research questions collectively. Revisiting the cases, I created the model for emerging approaches to bias response (Figure 1, explained further under “Findings”). I revisited coded data from interviews and documents to identify relevant examples corresponding to each element of the model. The internal pressures (i.e., institutional values and culture) and external pressures (i.e., contextual pressure points) portions of the model are based on data found across all four cases, whereas the identification and description of four approaches to bias reporting and response are each supported by one or more of the institutional cases. Lastly, I interpreted the emerging alternatives to bias response in light of prior literature and theoretical perspectives, which is found in the “Discussion” section.

OPEN IN VIEWER

Figure 1.

Emerging approaches to bias response.

Data-Quality Techniques and Researcher Reflexivity

I employed several strategies to ensure data quality and trustworthiness (Jones et al., 2022), including member checking (i.e., sharing transcripts with participants and inviting comment and further participation), triangulation of sources (i.e., administrator interviews, public documents, unpublished documents), and thick description (i.e., creation of case reports and then a collective multiple case report summarized in the model presented in this paper, with supporting participant and document quotes and examples from each case). I also reflected on my relationship to this topic as a researcher. Prior to entering the professoriate, I cocreated and led a BRT on a university campus where I worked as an administrator, which presented advantages in this study such as rapport building and potential disadvantages such as imposing my own experience or thoughts onto participants, requiring that I remained open to alternative ideas and interpretations. I viewed myself as part insider, part outsider in this study. I disclosed my experience as an administrator to potential participants when I contacted them; I wanted to put them at ease and let them know that I understood some of the pressures they were facing. However, because I transitioned to a faculty role some years ago, I recognize that I may be viewed differently by participants as a researcher eventually pursuing publication. I assume that I received truthful responses from administrators, but it is possible that participants may have distrusted me on some level and tried to represent their work and institutions in the best possible light rather than in the most candid light, which may have obscured some dynamics related to reformulating bias response—complications that are inherent risks when interviewing people in power (McClure & McNaughtan, 2021). As McClure and McNaughtan (2021) pointed out, it can be difficult to know “whether elites were speaking as representatives of the institution or conveying their true perspective on issues” (p. 989).

Bias Support Resource

The model most similar to traditional BRTs, the bias support resource, is similar in name and function, usually with a primary focus on supporting those who report incidents (i.e., reporting parties) rather than responses to the individuals named in reports (i.e., responding parties) or larger institutional responses (e.g., university statements, larger educational efforts or programming). The shift to an emphasis on support clarifies both the purpose and the procedures in the process, usually with explicit attention to freedom of expression and academic freedom protections; BRTs and emerging alternatives commonly have a statement affirming freedom of expression on their websites. Benefits of such an approach include the name or brand recognition that has been established on campuses (i.e., institutions may retain the name bias response team or similar), greater clarity on the resource’s role, and underscoring institutional diversity values and the goal of creating an inclusive climate. Drawbacks include this model being highly vulnerable to litigation and being targeted by external groups, particularly at public institutions, and the need to overcome an increasingly negative discourse around the term bias response. For minoritized groups on campus encountering bias incidents, this alternative may yield one-on-one support from administrators but, on its own, likely does nothing to address or mitigate the conditions that enabled bias on campus in the first place.

The bias support resource approach is typified at one public university in which an administrator on the team described a team’s shift from bias response (including educational conversations with responding parties) to bias support:

When [team members] used to talk about, “Well, we used to have educational conversations”—that never happened with students that I remember. I talked to a lot of people who reported bias incidents, but I didn’t talk to anyone who perpetrated harm on anyone or was perceived to perpetrate harm against someone. . . . It seemed like we were investigating nothing, and “investigating” is a word that we don’t even use for the committee, but we weren’t following up on anything that was happening with student organizations, faculty, staff. We were mostly just referring it out to other offices.

In this example, the administrator explains the shift from a bias response approach that would engage responding parties in educational conversations to a bias support approach that focused on the reporting party and often made referrals to other offices rather than mounting any formal response beyond support. These changes were understood by participants as prompted by a lawsuit—thus, the bias support approach (itself watered down from a traditional bias response approach) was least appealing to administrators at public institutions among the alternatives discussed in this study. The shift away from educational conversations is reflective of creeping legalism (because legal reasoning is prized above what might benefit students) and repressive legalism (because administrators interpreted speech protections to prohibit any other measures aimed at promoting inclusion). Another by product of legal pressure and creeping legalism was an outsized focus on terminology (e.g., investigating or following up) rather than the substance of the work.

In contrast, an administrator at the private university in the study revealed that the team addresses incidents and concerns with both reporting and responding parties:

My role is not to get people fired. . . . What I do want to do is help promote part of our mission statement in creating a sense of belonging and inclusion and really trying to address when issues happen that put a barrier to that. And how might I do that through education on both ends? . . . For reporting parties, understanding that sometimes what they’re reporting may not level up to [a] bias related [incident], but microaggressions are real, hurt feelings are real, and [I’m] educating on what the best approach is . . . to address and to affirm and to recognize that hurt is still hurt while also educating potential respondents or the folks who cause the harm.

Without the threat of litigation from external groups, the private institution continued to affirm the importance of educational conversations and outreach to responding parties, even when this outreach explicitly did not carry a threat of discipline for protected expression. Unlike public university administrators, the private university felt empowered to provide education “on both ends.” Although the administrator gave the examples of microaggressions and hurt feelings not being actionable under the bias incidents policy, the administrator was still willing to contact responding parties about the negative impacts of such speech or behavior—an example of what is possible in a less legally repressive institutional context.

Campus Climate Support Resource

The campus climate support model refers to a process or team that is designed to understand and assess campus community members’ experiences broadly—including but not limited to experiences of bias. In this model, a university may create a reporting or feedback form, but the purpose of reporting is to share experiences or concerns with the campus climate and not to lead to action on specific bias incident reports. Institutions may further note that reported information will not be referred to other offices or lead to discipline; instead, the focus is on understanding the campus climate and supporting those with a concern. One rationale is that this assessment approach can inform educational efforts such as guest lecturers, peer education, and campus dialogues and other events. Benefits from the university’s perspective can include communicating institutional values of belonging and inclusion, avoiding any implication of disciplinary action for protected speech, and the ability to acknowledge both positive and negative experiences. The key drawback is that the process is potentially vague; campus community members may be unsure of why and what to report, and the process may be viewed as lacking force or impact. Students experiencing bias on campus may be frustrated by a model that seeks to document and assess their experiences without associated action to create change in the campus climate. The long-term processes of informing educational efforts may not be visible or meaningful to individual community members filing reports.

A public university administrator described the difficulty of developing a campus climate support process that would align with the general counsel’s guidance:

The major red flag, I was told, was the threat of discipline. So, by providing a space where people can report, these are the words to avoid: “report an incident” and “use identifying information,” which would then be referred to a disciplinary unit, that that threat alone was problematic, even though people could just go directly to the disciplinary office and use their form and say the same thing. . . . The key thing that we heard were that people wanted a space to share experiences that they’re having, what’s happening.

While the administrator worked to develop a process where community members could share their experiences, they had to go out of their way to differentiate the process from the traditional bias response model, as directed by the legal affairs office based on potential lawsuits and advocacy group pressure—a clear example of repressive legalism that values institutional legal protection above all else and inhibits educational actions toward inclusion. Key differences from the traditional BRT model included a reporting form that collected less information and a process that only focused on support to individuals rather than the possibility of referral to other offices or any formal institutional response to a responding party. This example also features a persistent focus on terminology characteristic of creeping legalism.

Another public university administrator shared that encouraging and monitoring concerns related to the campus climate could help inform educational and programmatic efforts on campus:

When [I] become aware that these incidents have occurred, whether or not they’re documented directly through [a reporting form], or if someone is coming to us sharing this information that we’ve observed from the campus climate, then we are issuing statements to the campus. We are holding dialogues for the entire campus to come in, and we create a brave space for them to be able to dialogue about their feelings, their concerns. We’ve held listening sessions . . . and these occur throughout campus. So, we might go and pop in on the housing area, to get students’ feedback and concerns as well as then to offer some support.

This administrator describes a more holistic process for addressing bias and campus climate concerns that focuses less on the resolution of particular incidents and more on creating venues to listen to campus community members’ concerns and potentially informing university-wide responses, such as statements and educational programming. These may be educationally beneficial activities that improve the campus climate, but absent direct intervention, they may do little to address the harm and impacts of bias incidents.

Free-Speech Resource

The free-speech resource entails establishing a group, office, or team to promote freedom of expression on campus and address concerns and questions related to the exercise of free speech (administrators most often used the narrower term free speech rather than freedom of expression). This is considered a BRT alternative because administrators employing this approach viewed a free-speech resource as a resource for addressing hateful speech and expression. Thus, the free-speech resource turns bias response on its head. Rather than focusing on bias response explicitly (with bias often including protected speech), an institution focuses instead on freedom of expression as the primary value (which includes concerns about biased or hateful speech). This approach promotes freedom of expression as an institutional value, encourages education about speech rights on campus, and may take the form of teams, committees, and/or programming. In the case of bias incidents that are protected speech, administrators promote the idea that “more speech” (from those who may be targeted or offended) is the solution to hateful speech. This approach may avoid some political and legal scrutiny external to the institution, but it may not be used by those experiencing bias on campus, so it is not a suitable replacement for bias response work. The intersection between equity/inclusion and freedom of expression may not be evident.

A public university administrator highlights the approach of leading with free speech rather than bias:

We were advised [that] it was congruent with FIRE that you don’t want to have a bias reporting system. . . . You don’t want to just have a general pocket of bias because that in and of itself chills speech. Our [senior administration] has the initiative that we want to be FIRE friendly and raise our score. . . . So, we’re in the process of even updating our policies to be more freedom of expression friendly. . . . You have to accept that freedom of expression can include things that you may construe as hate speech. But the next step is, “What are you going to do about it?” You fight speech with speech, and you know more about your university policies.

In this example, the administrator emphasizes that direction for the bias response alternative came from senior administrators (“we were advised”), including legal affairs. The institution goes out of its way to satisfy FIRE, an external group exerting normative isomorphic pressure, and to promote a positive public image of the institution as honoring freedom of expression. In an example of creeping legalism, the administrator does not mention whether or how being “FIRE friendly” is educationally beneficial or useful to students. The institution avoids mention of bias because of accusations that doing so “chills speech.” The administrator also sees the free-speech resource as a way to support those targeted by hateful (but protected) speech by educating campus community members about their rights to respond—or “fight[ing] speech with speech.” This was an idea several participants voiced that emphasized speech protections but put the onus for support onto students, particularly those from marginalized groups likely to be targeted by hate speech and bias incidents.

Another administrator at a public university affirms the “fight speech with speech” approach and focuses on the values of higher education and how they might be transmitted through administrative structures and processes:

Of course, we are bound by legal requirements, and the law moves slowly in this field. But culturally, I think that our country, and especially our young people, are moving us very rapidly to a place where certain things are no longer tolerable. There’s a desperation almost for change. . . . And what we have seen a lot of is when students or faculty and staff feel very strongly and very passionately against certain hate ideologies or hate speech and want to have the university take certain action against them, our approach has always been to steer them toward more speech.

This administrator calls on the institution to be agile and understand where the broader culture and society are moving. Still, the administrator sees the overall institutional approach to bias or hate speech as encouraging more speech from affected parties—a response that shifts the burden back onto those individuals (predominantly from minoritized groups) experiencing hate speech and incidents and absolves the institution of responsibility for creating an inclusive environment.

Informal/Ad Hoc Resource

Lastly, as a response to external pressures including peer institutions that have been sued by Speech First, some institutions may adopt an informal or ad hoc approach in which bias is handled on a case-by-case basis, and bias response efforts are not formally organized or advertised as such on campus. An institution may have a reporting form for bias or general incidents but not a formal team or process that is identified publicly, in part to avoid negative public relations surrounding BRTs. Administrators may believe that this helps them to escape the external scrutiny that comes with having a BRT, a reflection of creeping legalism that places legal pressures, rather than education or student well-being, at the forefront of administrative decision making. Paradoxically, the vagueness of the process—for example, what happens to reports that are submitted?—actually may open administrators to the scrutiny they hoped to avoid. An ad hoc process may be beneficial by treating each incident as unique, and the approach may fly under the radar and avoid unwanted public attention from administrators’ perspectives, but the approach also lacks transparency and visibility; the campus community and in particular minoritized groups experiencing bias may not know or trust the process.

This public university administrator describes the dilemma at their institution and the chilling effect of a nearby institution being sued:

There seemed to be a gap of things that weren’t necessarily discrimination but needed to be addressed. . . . And then I think it was [peer institution]. They got in some legal trouble because they had a team, a bias response team. . . . So, that was a little chilling for us. I’ll be honest with you. And so, we decided not to develop that team, or at least not to put anything on a page, where it looked like we were chilling free speech. . . . [The number of reports] seem to come in spurts, and this semester it’s almost been nonexistent. I don’t know why that is. . . . I felt at one point that I was the only one that wanted to keep that [reporting] form live.

In the name of not advertising any efforts that could be misconstrued as chilling free expression, the institution adopted a seldom-used reporting form that seemed unpopular even among administrators involved in the work. This example also demonstrates the mimetic isomorphic pressure of looking to an institution that has been sued and taking action to avoid that outcome as well as the influence of creeping legalism, where legal reasoning overrides educational efforts.

Another public university administrator who received reports of incidents through a bias incident reporting form (but did not operate as part of a team) viewed their role as helping to “connect the dots to address a bigger problem” and explained that they frequently collaborated with other offices and reached out to reporting parties and responding parties as part of their work:

I don’t come in hot, I don’t come in accusing, I just reach out to the person and say, “Hey, I’d like to set up a quick Zoom meeting with you just to kind of have a little talk about an incident that’s been brought to my attention,” just like I do when someone in passing tells me that they may have experienced something but don’t give me enough information.

This administrator worked to avoid any implication of a punitive conversation when trying to address incidents that came to their attention. Rather than operating as part of a formal team, the administrator convened ad hoc groups as necessary to address incidents. Such an approach acknowledges incidents but also may prevent monitoring any trends in the campus climate or sharing information back with the campus community.

Alternatives to Bias Response: Decentralized and Potentially Ineffective

The first research question asked, In the context of a contentious political and legal environment, what approaches are administrators using to respond to bias on campus beyond traditional bias response teams? One of the study’s unique contributions was in identifying four alternative approaches that are not mutually exclusive (i.e., campuses may employ more than one approach): bias support resource, campus climate resource, free-speech resource, and informal/ad hoc resource.

In designing these alternatives, campuses appeared to move away from a unified bias reporting and response system toward more decentralized approaches in which different administrators or teams would address bias reporting, response, and/or education. This unbundled approach may be designed, in part, to help institutions avoid being targeted for lawsuits or external criticism—a risk-aversion tactic in line with repressive legalism (Garces et al., 2021). A tailored approach to bias response work could be a positive development that responds to the realities of each institutional context (Accapadi & Miller, 2023); however, the initial need for bias response (i.e., the presence of hateful incidents and speech on campus that negatively affects students) may recede in importance.

The four alternative approaches risk functioning as watered-down options that do not fully address bias and hate on campus and are thus potentially ineffective. Although some of the four approaches identified in this study may be helpful for some students, any one tool on its own is likely insufficient to carry out the mission of responding to bias incidents and hateful expression on campuses. Prior scholarship has critiqued the ineffectiveness of bias response mechanisms that focus only on those who report bias or that do not contextualize incidents within a broader framework of oppression (Hughes, 2013; LePeau et al., 2018; Robinson, 2024b).

None of the approaches (or all four if used together) fully address the harms of bias and hate on campus; in this vacuum, those targeted by hate speech and incidents, such as students of color and other minoritized groups, must use time and energy to organize and respond on their own behalf without compensation, potentially leading to burnout, a decreased sense of belonging, and other negative outcomes, as reflected in prior literature (Garces et al., 2022; Jones & Reddick, 2017; Linder et al., 2019). In other words, minoritized students may “fight speech with more speech,” in the words of several participants, but such actions still can have negative consequences, and the institution is seen as abdicating its responsibility to create an inclusive environment that is free from harassment (Jones & Reddick, 2017; Linder et al., 2019). Indeed, as Franks (2024) argued in her critique of First Amendment absolutism, “free speech discourse in America is dominated by a legalistic, reactionary, and consumerist ‘more speech is better speech’ model that promotes reckless speech above all” (p. 16).

While administrators focused on risk aversion related to freedom of expression, honoring such protections would not prevent other institutional actions to promote inclusion, such as voluntary facilitated dialogues, institutional and leadership statements of support, and educational activities that place incidents into broader systems of power such as systemic racism (Garces et al., 2022; Jones & Reddick, 2017; Linder et al., 2019)—interventions that could contribute to students and employees exercising “fearless speech” rather than reckless speech (Franks, 2024, p. 111). In this study, administrators rarely discussed these potential actions, focusing more often on a narrow band of options that a BRT alternative provided and reaffirming a neutral stance on the part of the institution rather than acknowledging and addressing specific harms to minoritized groups (Garces et al., 2021; Robinson, 2024a). Rather than focusing merely on what speech should be protected, administrators might instead invest energy into “what speech a democratic society should promote (a broader question of what speech deserves attention and respect)” (Franks, 2024, p. 17, emphasis in original).

The influence of creeping and repressive legalism appears throughout the reasoning behind each of the four emerging alternatives (Garces et al., 2021; Ryder et al., 2022). The alternatives seem designed entirely to respond to critiques that speech is being chilled while ignoring critiques that bias and hate are not being sufficiently addressed on campus (Garces et al., 2021, 2022). In the bias support resource model, institutions abandon the premise of communicating with or educating those who are the responding parties in reports unless there is a potential policy violation; the threat of legal action stands in the way of potential education (Garces et al., 2021). The campus climate support and informal/ad hoc resources appear to be even more heavily influenced by creeping and repressive legalism because the original bias response functions are removed (because of a more general approach to campus climate concerns) or made invisible (due to a process that is not fully described or made transparent to campus community members in the informal resource approach). The free-speech resource seems to be a novel development in direct response to groups external to higher education, including FIRE and Speech First. Campus community members are unlikely to know that a free-speech resource can potentially address bias and hate speech—instead, the institution may send the message that freedom of expression is valued over equity and inclusion.

In sum, in an environment of creeping and repressive legalism, administrators twist themselves into pretzels to create and find terminology for watered down reporting mechanisms that minimally focus on support for those reporting bias, with no pretense of educating those who may perpetrate it and create hostile environments on campus. It appears, for some groups on (and off) campus, that free speech is the trump card used for free reign to create a hostile campus climate, and any efforts to educate about the impact of bias—namely institutional statements against bias or voluntary conversations with staff who do not have the power to punish students—are seen as unacceptable infringements on speech rights.

External Pressures Drive Bias Response Alternatives and Downplay Access to Education

The second research question asked, How do external pressures shape alternatives to BRTSs? Simply put, external advocacy groups’ lawsuits (both threatened and real) and speech rating systems have been primary drivers in the design of BRT alternatives. The influence of FIRE and Speech First is difficult to overstate; administrators in this study mentioned both groups by name and the “chilling effect,” in the words of one participant, of witnessing other institutions face litigation—regardless of the possible outcome of litigation or the educational benefits and legal defensibility of institutional practices being challenged. These groups’ efforts have been remarkably successful, at least at the handful of institutions in this study (and there is little reason to believe that these universities are outliers). As a result, administrators are laser focused on absolutist speech protections and legal risk aversion while ignoring or downplaying the marginalization and harassment faced by minoritized students that prompted the creation of BRTs. Administrators also downplay the accompanying potential liability under federal civil rights laws for failing to adequately responding to these experiences in the campus environment, concerns raised in prior scholarship on bias response (Garces et al., 2021; Soucek, 2023). In the current anti-DEI culture war environment, institutional values and missions, especially related to holistic student development (Ryder et al., 2022) and educating students about hate and bias, take a backseat (at best) to legal and political pressures over absolutist freedom-of-expression protections (Garces et al., 2021; Garces, Ambriz, & Pedota, 2022). Often such educational efforts are unnecessarily viewed as incompatible with speech protections. Strikingly, administrators did not share any example of external groups supporting diversity and robust bias response that influenced their decision making about bias response alternatives. In this study, external pressures seemed to emerge only from absolutist free-speech groups.

External pressures on higher education, functioning as forms of institutional isomorphic pressures, exert coercive pressure through lawsuits and settlements and normative and mimetic pressures benchmarking peer institutions’ activities—activities that, themselves, are often a response to external pressures (DiMaggio & Powell, 1983). The isomorphism concept traditionally refers to a process of homogenization in a field (DiMaggio & Powell, 1983). Interestingly, in the realm of bias response, the net effect of these isomorphic pressures is not to make institutional processes more alike but to spark a number of alternatives to BRTs that are tailored to institutional context and respond to external pressures. There is not a central organizing body or professional association that provides best practices around bias response work in higher education because aspects of bias response implicate various functional areas, including diversity offices, student affairs, legal affairs, human resources, and public relations (Miller et al., 2018b). Earlier iterations of BRTs were more homogeneous in their composition and activities (Miller et al., 2018a), but contemporary alternatives are characterized by their variety. Perhaps higher-education institutions will eventually coalesce around common alternative(s) to bias response, but there is no evidence for this yet.

In creating or modifying bias response programs, administrators operate within a climate of repressive legalism (Garces et al., 2021) and creeping legalism (Ryder et al., 2022). This study demonstrates that BRTs have become culture war targets from groups that are external to higher education and that campus administrators are conscious of their work in this area being high profile, targeted by external groups, and closely monitored internally. In this climate, administrators see the law—namely First Amendment speech protections—as preventing substantive action to improve the campus climate, and they focus outsize attention on terminology and rhetoric to describe their work or language they want to avoid, echoing prior work on administrative responses to bias (Garces et al., 2021). Institutions may decide to alter or abandon bias response work primarily to avoid the threat of a lawsuit, even if the work is defensible and in line with institutional values. Although private institutions have more latitude in their decision making, as evidenced by the more robust bias response procedures discussed by private university administrators in this study, even in this context, many institutions adhere to First Amendment protections by practice or policy; thus, repressive legalism can still extend to private institutions and influence how they respond to hate speech and incidents (Epstein et al., 2024). These pressures have only increased with the anti-DEI legislation in 2023–24 and beyond (Harper et al., 2024). Although BRTs have not been the primary targets of anti-DEI legislation and policies, the tactics used by administrators to respond to external pressures clearly illustrate overcompliance and precompliance (e.g., dismantling BRTs in the absence of a lawsuit or a policy or law compelling them to do so) that is becoming characteristic of institutional responses to anti-DEI measures (Pandey, 2024).

When administrators invoked legal pressures and risks for their institutions, they referred primarily to the First Amendment and did not discuss obligations under federal civil rights laws such as Titles VI, VII, and IX to prevent discrimination and protect access to higher education based on race, color, national origin, sex, disability, and age (Office for Civil Rights, 2023). A primary focus on speech protections ignores the fact that repeated hateful speech and bias incidents on campus can create a hostile learning and working environment and put the institution at other substantial legal risks (see Soucek [2023] for a fuller discussion of the double liability dilemma higher-education institutions face). Although speech advocacy groups and many legislators and courts appear focused primarily on speech, administrators may downplay the importance of preventing hostile environments for all groups, and this may run contrary to institutional missions and open institutions to liability. Soucek (2023) argued that “speech cannot be protected to the sweeping extent courts have recently held it to be—not if equal access to education based on race and gender is still to be protected as well” (p. 685). This study was conducted prior to the October 7, 2023, Hamas attack on Israel, the war in Gaza, and associated protests and congressional hearings (Blake, 2024), but concerns about fighting anti-Semitism on campuses and a rise in hate speech underscore the double liability dilemma Soucek (2023) discussed—that is, institutions may appear to value freedom of expression above all else and view themselves as constrained from any efforts to promote inclusion and thus invite scrutiny for not taking sufficient action against hate and discrimination.

Limitations

This study’s findings are limited by several factors. It was difficult to recruit institutional cases and identify willing administrators to discuss a controversial process, particularly given the threat of litigation that public institutions face. In a climate of repressive legalism, institutions are crafting a variety of alternatives to traditional bias response mechanisms, and this study detailed only four of the potential alternatives institutions have adopted. Given a shift toward decentralized and tailored bias response approaches, there are likely other alternatives at other institutions worthy of examination and critique.