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Ever Heard of “Thin Privilege”?

by Gaines West, Attorney-at-Law, West, Webb, Allbritton & Gentry

Very recently the federal Sixth Circuit Court of Appeals {they cover cases in parts of Kentucky, Michigan, Ohio and Tennessee} pushed back on the University of Michigan’s ‘Bias Response Team.’ That Court wrote that the application of Michigan’s efforts to embolden university bureaucratic bias cops with the power to investigate those accused of speech deemed offensive by others, based solely on the ‘feelings’ of those offended, went too far.

The Court reasoned the implicit threat of punishment by the bias cops quelled speech {Free Speech}. In the end, the university shelved the Bias Response Team, and have instead started a new group with the name: Climate Support Staff. The plaintiffs in that case are watching the Michigan administration carefully to see if the new program turns out to be anything different than the Bias Response Team.

At last count more than 200 colleges and universities now have some form of bias police. And, at some colleges and universities the way they are implementing their Title IX responsibilities is to have a de facto bias police force. AND, more importantly, this doesn’t just affect students, it affects faculty. Complaints against faculty are on the uptick all over the country. Faculty conduct that was once protected by Academic Freedom is now being reviewed IN Title IX offices.

So what is “Thin Privilege”? Those who aren’t ‘thin’ {whatever that means} are asserting a new ‘right’ to be free from being discriminated against because they don’t get the privileged status that ‘thin’ students get! The not thin students ‘feelings’ may trigger a Title IX investigation against you, their instructor/teacher! Will the Title IX office call the bias cops {sometimes called an Investigating Authority} to fully investigate what it is you are doing? Sound like a stretch? It unfortunately is not.

Recently a professor teaching professional graduate students at a Texas institution was disciplined because a student complained that he felt he was being treated unfairly by his professor. The student alleged the professor treated other students differently from him – in assignments, in class participation and in grading. This was all based on the student’s feelings. The Investigating Authority {bias police} got other professors, and present and former grad students, to chime in on whether they thought in their dealings with this professor the professor was fair. All reports that were solicited by the bias police were given to them with no opportunity for the charged professor to confront those making the allegations.

This trend continues. It started with the ‘Dear Colleague’ letter in 2011 with its aim of curbing sexual violence on campus. The #MeToo movement has propelled the Title IX issues into every corner of every campus – to protect students from other students and now students from faculty. More colleges and universities are passing zero tolerance rules that require dismissal when a faculty member is found responsible of discriminating.

What to do? What to do? It would be wise to consider your every step as you move forward. Carefully evaluate what you write and what you say. Remember in today’s technological age recording your lecture, faculty meetings, and even private meetings with other faculty and students can be easily accomplished, and lawful. I am not writing this to make you paranoid – I am writing to have you be forewarned. The campus you are on today is not the campus it was just last year. Tenure doesn’t provide the protection it once did.

In covering this ever changing landscape on university campuses, the Wall Street Journal recently reported about the Michigan Bias Response Team and the problems created by it. Creating harsh consequences {like a faculty member being disciplined} based on ‘feelings’ alone opens us all up to real peril since ‘…like most people these days, we’re offended by someone’s speech nearly every day.’

Is complaining that I don’t get the ‘Thin Privilege’ going to work for me? I don’t know – but it may be worth a try!”

“The information in this column is intended to provide a general understanding of the law, not as legal advice. Readers with legal problems, including those whose questions may be addressed here, should consult attorneys for advice on their particular circumstances.”

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