by Melissa Garlick
Since 2017, college and university students across the country, including in Massachusetts, have noticed their campuses papered with fliers declaring, “It’s OK to be white” – a phrase with a long history in the white supremacist movement.
What may be surprising to some is that –although the seeming purpose of this coordinated effort by white supremacists is to propagandize, stoke fear, spread hate, and divide campus communities – these fliers are constitutionally protected speech.
While hate speech on campus is generally protected speech, that is not the end of the matter. Administrators and the campus community must recognize and prepare to address the harm that can stem from such speech on campus. A clear and forceful response to constitutionally protected hate speech will prevent protected speech from escalating to bias-motivated crimes and will ensure an inclusive climate where all community members feel safe and welcome.
Free Speech vs. Hate Crimes
The flyer incidents illustrate the important –yet often overlooked – dividing lines between free speech and hate crimes. Even some of the most heinous speech is not criminal, but rather, is largely protected by federal and state constitutions. The ability to express controversial and even offensive ideas is a cornerstone of our nation’s democratic ideals; it is one of the principal ways our nation is distinguished from many countries around the globe where expression of unpopular viewpoints can be – and often is – punished.
In order for an incident to be considered a hate crime, there must be a criminal offense – designated by statute – specifically and intentionally targeting an individual or property in whole or in part because of the victim’s actual or perceived race, religion, national origin, gender, gender identity, sexual orientation, or disability. See e.g., M.G.L. c. 265, § 39; 18 U.S.C. § 249. Such criminal acts become hate crimes only where the perpetrator intentionally selects the victim because of the victim’s personal characteristics. Id.Even more common than hate crimes on colleges campuses, are bias incidents (also referred to as hate incidents), in which a person makes bigoted or biased comments to another individual, distributes hate literature (like the aforementioned flyers), or conducts other similar other non-verbal communication. Although they are not hate crimes and often do not violate criminal or civil law, bias incidents nonetheless can be deeply hurtful and offensive.
Hate Incidents on College/University Campuses
Every year, thousands of students are the victims of hate crimes and bias incidents on college campuses, including bias-motivated slurs, vandalism, threats, and physical assaults. According to Federal Bureau of Investigation (FBI) statistics, schools and colleges/universities remain the third most-frequent location for hate crimes.
Over the past year, the Anti-Defamation League (ADL) has tracked not only a spike in anti-Semitic and hateful incidents on campus, but has documented the changing nature of incidents and their profound impact on communities. Reports of hate rhetoric and bias incidents, including anti-Semitic and racist graffiti, extremist speakers, and racist fliers, have increased markedly. Although most of those incidents would not qualify as hate crimes or be even criminally punishable, they are deeply painful to individuals and campus communities.
For example, on Valentine’s Day in 2017, gift bags were distributed to students at a Central Michigan University student group meeting including a card that read, “my love 4 u burns like 6,000 jews” [sic] and featured a photograph of Adolf Hitler. Even though the creator/distributor of the valentine card turned out not to be a student, the impact of the incident resonated through the campus community. University President George Ross issued a forceful statement and more than 100 faculty members issued an open letter to the University community. The letter stated: “First and foremost, we stand in unflinching solidarity with Jewish communities on our campus and beyond. We uphold you now and always. We will do everything in our power to protect you . . . .” This incident did not involve speech that crossed the First Amendment line into criminal behavior. However, the strong University response underscores the significant impact of such incidents on a person’s sense of value and belonging in a place of learning that they also call home. When hate speech appears on campus that is demeaning to a group of people and contradictory to the values of diversity and inclusion – though it may be protected by the First Amendment – trust is eroded and communities need to heal.
ADL also has tracked a dramatic uptick in incidents of white supremacists targeting college campuses via the distribution of literature, speaking engagements, or trolling/harassment efforts. Colleges and universities are traditionally seen as bastions of free speech; white supremacists capitalize on that by intentionally designing their efforts and words (e.g., the “It’s okay to be white” fliers) to fall under the umbrella of free speech. Since September 2016, ADL has tracked more than 500 incidents of white supremacist propaganda on college and university campuses, with almost 300 such incidents occurring during the 2017-18 school year. The vast majority of white supremacist campus actions involve hateful fliers (“Imagine a Muslim-Free America”) and stickers (“Make American White Again”), but white supremacists also have sent anti-Semitic faxes and delivered highly publicized on-campus speeches.
Considerations for College/University Administrators
As early as the 1600’s, John Milton introduced the now familiar concept of the “marketplace of ideas” which, in essence, posits that “the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J. dissenting). Yet, this marketplace is not self-executing. It depends on people’s willingness to respond to words which are intended to demean, humiliate, and deride. Educational institutions must take into account that historically marginalized and other minority groups are under a greater burden and may be unable to adequately respond when speech targets their personal identities and sense of self. It is critical that colleges and universities speak and act, both against hate and toward a civil learning environment that values inclusion, equity, and open expression.
Reporting hate crimes on campuses, for example, is a crucial part of successful prevention of hate incidents. In 1998, Congress enacted an amendment to the Higher Education Act requiring all colleges and universities that receive federal aid to collect and report hate crime statistics to the Department of Education (ED). See Clery Act, 20 U.S.C. § 1092 (f)(1)(F). Currently, colleges and universities must report hate crime statistics for all campus crime categories.
Unfortunately, however, the ED’s current hate crime statistics reflect substantial underreporting. Indeed, the majority of hate crime victimizations go unreported. Colleges and universities have tended to either report the crime without indicating that it was bias-motivated or fail to report the crime at all. Such underreporting is underscored by the fact that the limited ED data conflict with campus hate crime information collected by the FBI under the Hate Crimes Statistics Act, 28 U.S.C. § 534, although the same reporting criteria apply.
Reporting hate crimes and training campus police should be a part of broader response protocols established by colleges and universities to quickly and effectively address hate crime incidents and build trust within campus communities. Campus police should take seriously all reports and allegations of hate crimes and incidents, bias, vandalism, graffiti, and flyering.
University administrators and campus stakeholders have a responsibility to use their own expressive rights to challenge and confront heinous ideas, rather than attempt to ignore them or stifle discussion. Faculty and students should be educated on the parameters of their First Amendment free speech rights and campus response policies and plans should be updated.
Ultimately, the most effective responses and prevention measures by colleges and universities are those that clearly recognize the harmful impact bias incidents have on campus communities, regardless of legal distinctions between hate crimes and bias incidents. It is only through strong action and counter-messaging that trust can be maintained, communities can heal, and the rising tide of hate on campuses may be stemmed.
 The fliers are a byproduct of a larger trolling campaign that emerged out of 4chan, a popular internet discussion forum infamous for the studied offensiveness of many of its members and its association with the white supremacist alt-right movement. See “From 4Chan Another Trolling Campaign Emerges,” ADL, Nov. 6, 2017, available at https://www.adl.org/blog/from-4chan-another-trolling-campaign-emerges.
 See Clery Act Requirements, Crime Categories Covered, available at https://clerycenter.org/policy-resources/the-clery-act/.
 See “Majority of Hate Crime Victimizations Go Unreported to Police,” Office of Justice Programs, Bureau of Justice Statistics, June 29, 2017, available at https://www.bjs.gov/content/pub/press/hcv0415pr.cfm.
 See, e.g., Rocheleau, Matt, “UNH stats showing no hate crimes in recent years raises red flag, experts say,” The Boston Globe, June 8, 2017, available at https://www.bostonglobe.com/metro/2017/06/08/unh-stats-showing-zero-hate-crimes-recent-years-raises-red-flag-experts-say/oEnPB4mYd0keau6vFpA4CP/story.html.
 For additional guidance, see Hate/Uncycled: ADL Resource for Administrators and Law Enforcement Teams, available at https://www.adl.org/media/11138/download (2018); Hate Crimes On Campus: The Problem and Efforts to Confront It, U.S. Department of Justice Bureau of Justice Assistance, available at https://www.ncjrs.gov/pdffiles1/bja/187249.pdf (October 2001).
Melissa Garlick is the National Civil Rights Counsel at the Anti-Defamation League (ADL), a non-profit organization dedicated to combatting bigotry, prejudice, and anti-Semitism. She is a member of the Civil Rights and Civil Liberties Steering Committee of the BBA.