! September 19, 2016 Chris Wilson Chief of Staff Office of the President North Dakota State University Dept. 1000, P.O. Box 6050 Fargo, ND 58108-6050 E-mail: Christopher.S.Wilson@ndsu.edu Sent via Electronic Mail Mr. Wilson: This letter is a request pursuant to the North Dakota’s open records law as set forth in N.D. Const. art. XI, § 6 and N.D.C.C. § 44-04-18, et seq. If you are not the records custodian for North Dakota State University (NDSU), please forward this letter to the appropriate person and apprise me accordingly. Further, please let me know if I can clarify or refine this request. If you deny any portion, or all, of this request, please provide me with a written explanation of the reason(s) for your denial, including a citation to each specific statutory exemption you feel justifies the refusal to release the information and notify me of the appeal procedures available to me under the law. If you conclude that portions of the records that I request are exempt from disclosure, please release the remainder of such records for inspection and copying, redacting only the portion or portions that you claim are exempt. For any exemptions, please note whether it is discretionary and, if so, the basis for refusing to exercise discretion in favor of granting access. Please provide a determination, if not responsive records, as promptly as possible. See North Dakota Attorney General’s Open Records and Meetings Opinion No. 98-O-22 (“A public entity must respond to an open records request within a reasonable time…. Although N.D.C.C. § 44-04-18 does not necessarily require an immediate response, the delay that is permitted will usually be measured in a few hours or days rather than several days or weeks.”) I would prefer records in an electronic format, if possible, sent either via electronic mail (to adam@thefire.org) or, if the responsive documents are voluminous, on a disc sent via overnight or U.S. Mail. ! Finally, as discussed in greater detail below, I request a waiver of all fees pertaining to this request. The Foundation for Individual Rights in Education (FIRE) is a non-profit organization devoted to protecting civil liberties on campus, and the records sought herein relate to universities’ policies concerning and responses to speech protected by the First Amendment. In the event that a fee waiver is not granted, please apprise me in advance if the estimated fee is in excess of $50.00. Background and Request for Fee Waiver The Foundation for Individual Rights in Education (FIRE) unites leaders in the fields of civil rights and civil liberties, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, legal equality, academic freedom, due process, freedom of speech, and freedom of conscience on America’s college campuses. Our website, thefire.org, will give you a greater sense of our identity and activities. Campus Climates and “Bias Incident” Reporting Systems Are of Significant Public Interest and Importance College and university responses to perceived bias have been a prominent topic of national conversation in recent months. From student demonstrations at the University of Missouri, to racist chants by fraternity members at the University of Oklahoma, to lists of demanded reforms by students at countless colleges,1 students have sparked discussions on how (and whether) institutions should modify their policies to respond to certain speech. Students nationwide have questioned how their universities respond to controversies involving race and identity, and whether such responses are sufficient. Public institutions’ responses are inextricably intertwined with important First Amendment considerations.2 Where public institutions begin to subject students and faculty to !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 See, e.g., WETHEPROTESTERS The Demands, http://www.thedemands.org/ (last visited May 24, 2016). There is no question that the First Amendment applies to public universities like UO. Healy v. James, 408 U.S. 169, 180 (1972) (“[T]he precedents of this Court leave no room for the view that […] First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘the vigilant protection 2 2 There is no question that the First Amendment applies to public universities like UO. Healy v. James, 408 U.S. 169, 180 (1972) (“[T]he precedents of this Court leave no room for the view that […] First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘the vigilant protection !2!! investigation or punishment over the content of their speech, they risk chilling protected speech, if not infringing upon First Amendment rights altogether. For example, the University of California recently adopted a “Statement of Principles Against Intolerance,” outlining how university administrators should respond to antiSemitic incidents.3 Meanwhile, the Department of Education’s Office for Civil Rights is currently considering issuing guidelines relating to whether, or how, universities must police anonymous online speech.4 And in April of 2016, the Department of Justice argued that in order to comply with Title IX, a university must investigate all speech of a sexual nature that someone subjectively finds unwelcome, even if that speech is protected by the First Amendment.5 In response to these and related concerns, many institutions have installed protocols for the reporting of “bias incidents” on campus in recent years. FIRE has criticized these bias incident reporting systems for the threat they may pose to speech protected by the First Amendment.6 For example, many of these systems define “bias incident” to include speech protected by the First Amendment.7 As such, a policy that requires the investigation of all reported “bias incidents” necessarily means protected !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! of constitutional freedoms is nowhere more vital than in the community of American schools.’”) (internal citation omitted). 3 Teresa Watanabe, UC regents say anti-Semitism has ‘no place’ on campus but reject blanket censure of anti-Zionism, L.A. TIMES, March 23, 2016, http://www.latimes.com/local/lanow/la-me-ln-uc-regents-intolerance-20160322-story.html. 4 Cyrus Farivar, Feminist, civil rights groups tell Dept. of Education that Yik Yak is awful, ARS TECHNICA, Oct. 22, 2015, http://arstechnica.com/tech-policy/2015/10/feminist-civil-rights-groups-tell-dept-of-education-that-yik-yak-isawful/. 5 Letter from Shaheena Simons, Chief of the Educational Opportunities Section of the Civil Rights Division of the U.S. Dept. of Justice, to Robert G. Frank, President of the University of New Mexico (Apr. 22, 2016), available at https://www.thefire.org/unm-findings-letter/. 6 See, e.g., Samantha Harris, Unconstitutional ‘Bias Reporting’ Programs: A Nationwide Problem, THE TORCH, Nov. 29, 2007, https://www.thefire.org/unconstitutional-bias-reporting-programs-a-nationwide-problem/. See also Azhar Majeed, How to Address Campus ‘Bias Incidents’ Without Restricting Free Speech, HUFFINGTON POST, May 4, 2016, http://www.huffingtonpost.com/azhar-majeed/how-to-address-campus-bias-incidents_b_9839806.html. 7 See, e.g., Samantha Harris, Speech Code of the Month: University of Northern Iowa, THE TORCH, Oct. 2, 2008, https://www.thefire.org/speech-code-of-the-month-university-of-northern-iowa/ (criticizing the University of Northern Iowa’s definition of “bias incident” for including “any inappropriate word”); see also Samantha Harris, Speech Code of the Month: Clark University, THE TORCH, Jan. 15, 2016, https://www.thefire.org/speech-code-of-the-monthclark-university/ (criticizing Clark University’s definition of “bias incident” for including “treating someone negatively” and “commenting on social media related to someone’s identity in a bias … manner”); see also Samantha Harris, Speech Code of the Month: University of Wisconsin-La Crosse, THE TORCH, Feb. 11, 2016, https://www.thefire.org/speech-code-of-the-month-university-of-wisconsin-la-crosse/ (criticizing the University of Wisconsin-La Crosse’s bias response reporting system for subjecting students to investigations); see also Samantha Harris, Speech Code of the Month: Bates College, THE TORCH, June 9, 2014, https://www.thefire.org/speech-code-ofthe-month-bates-college/ (criticizing Bates College’s bias incident policy for prohibiting “hate speech”). !3!! expression will be subject to investigation. This engenders an impermissible chilling effect on speech, since students and faculty may rationally choose to self-censor to avoid being subjected to any sort of disciplinary investigation. Threats of punishment only compound the problem. FIRE is not alone in raising concerns about this result. Criticism of bias incident reporting systems has come from across the political and ideological spectrum. For example, the state of Tennessee recently considered banning such systems altogether,8 and outlets ranging from Reason to the New Republic have sharply criticized bias reporting systems. Criticism has also been leveled against individual institutions’ bias reporting systems, ranging from criticism in the Washington Post over the University of Oregon’s Bias Response Team9 to a series of stories criticizing the University of Northern Colorado’s similar initiative. The New Republic similarly criticized such systems because they put “at undue risk” those “who teach in the humanities and social sciences,” and concluded: BRTs are fatally flawed. Adjudicating “he said, she said” incidents is a logistical nightmare, if not downright impossible for thinly stretched administrators. There will no doubt be examples of injustice where the “accused” are investigated— even penalized—over paltry evidence, or where the discipline meted out is far too harsh for the alleged “crime.” What’s more, BRTs will result in a troubling silence: Students, staff, and faculty will be afraid to speak their minds, and individuals or groups will be able to leverage bias reporting policies to shut down unpopular or minority viewpoints. BRTs will substitute diktats for debate when what we need most is constant, frank conversation. By almost any measure, colleges and universities are more diverse today than they have ever been, and that’s the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 8 Tennessee bill would ban students’ gripefest over mean talk unless there’s real threat, FOX NEWS, Mar. 15, 2016, http://www.foxnews.com/us/2016/03/15/tennessee-bill-would-ban-colleges-from-hearing-gripes-over-meanoffensive-comments.html. 9 Catherine Rampell, Wondering whether today’s college students have become too fragile? Read this document, WASH. POST, May 13, 2016, https://www.washingtonpost.com/news/rampage/wp/2016/05/13/wondering-whether-todayscollege-students-have-become-too-fragile-read-this-document; Catherine Rampell, College students run crying to Daddy Administrator, WASH. POST, May 19, 2016, https://www.washingtonpost.com/opinions/college-students-runcrying-to-daddy-administrator/2016/05/19/61b53f54-1deb-11e6-9c81-4be1c14fb8c8_story.html. !4!! paradox: BRTs will turn the genuine, transformative educational power of diverse voices into a farce.10 FIRE, a Non-Profit Organization, Has the Ability to Disseminate the Requested Information FIRE has the ability to publish the documents sought here. The instant request is for the purpose of evaluating, and subsequently writing about, the use of “bias reporting systems” on campuses nationwide. FIRE publishes a dozen or more articles per week on its award-winning blog, The Torch, and its staff routinely publish articles in media outlets with national readerships. I am an investigative journalist with a history of publishing commentary on legal issues concerning the First Amendment in a variety of outlets, including The Guardian, Popehat.com, ArsTechnica.com, and Techdirt.com. The records sought are, with few exceptions, not in the public domain. Moreover, FIRE intends to publish all of the documents on its website, making them available to media outlets and scholars alike, allowing society at large to weigh how universities as a whole respond to offensive speech and incidents. FIRE will not receive a private benefit in receiving the responsive records. FIRE is a non-profit, non-partisan organization. FIRE sells neither subscriptions nor products. Its mission, rather, is to protect civil liberties on college campuses, in part by disseminating information on how civil liberties are impacted by policies and events. In sum, producing the responsive records will further the public’s understanding of how universities respond to offensive speech and conduct, and whether those responses are compliant with the First Amendment and academic freedom. As such, FIRE respectfully requests that all fees related to this request be waived. North Dakota State University’s Bias Report Response Team NDSU maintains a Bias Report Response Team, which reviews “bias reports” submitted by students, faculty, and staff to report “acts of bias, bigotry, or hate at NDSU.”11 Reports are submitted through an online reporting form, which is only !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 10 Jeffrey Aaron Snyder and Amna Khalid, The Rise of “Bias Response Teams” on Campus, NEW REPUBLIC, Mar. 30, 2016, https://newrepublic.com/article/132195/rise-bias-response-teams-campus. 11 See https://www.ndsu.edu/equity/bias_reporting/ !5!! available to persons with a username and password. 12 The form notes that “reports are subject to the open records laws of North Dakota” and that while the reporter’s identity may not always be divulged, the confidentiality of the reports is not guaranteed. On July 16, 2016, I issued a public records request to NDSU seeking, inter alia, records since January 1, 2009, relating to the Bias Report Response Team. On August 9, 2016, NDSU responded to that request, providing 33 pages of records. The oldest record provided therein was dated March 31, 2016. On August 9, 2016, I emailed Christopher Wilson, Chief of Staff of NDSU, noting that the production of records appeared to be incomplete. NDSU’s Bias Report Response Team has been in existence since at least the 2007-2008 school year. Indeed, FIRE possesses a summary of reports submitted to the NDSU Bias Reporting System during that year. That report was previously posted on NDSU’s website, but is no longer available online. Moreover, that report noted that NDSU received 31 reports through the Bias Reporting System, of which 26 were handled by the Office for Equity, Diversity & Global Outreach. North Dakota’s Records Management Act (N.D.C.C. § 54-46) requires, generally, that state institutions (including those under the control of the North Dakota State Board of Education) preserve records “made or received pursuant to law or in connection with the transaction of official business.” (N.D.C.C. § 54-46-02(2).) The Records Management Act further provides: “All records made or received by or under the authority of or coming into the custody, control, or possession of public officials of this state in the course of their public duties are the property of the state and may not be mutilated, destroyed, transferred, removed, sold, or otherwise damaged or disposed of, in whole or in part, except as provided by law. Each state agency and political subdivision of this state shall notify the state records management administrator of unlawful actions affecting records. Public records that have been unlawfully removed must be returned to the office of origin or to the state archivist.” (N.D.C.C. § 54-46-07.) // // !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 12 See https://www.ndsu.edu/biasreport/. !6!! Records Requested Please provide any documents13 within the following categories. Please note the use of “Bias Report Response Team” should not be read to limit the following requests. Rather, use of “Bias Report Response Team” should encompass any reports to, reports by, or other documents submitted to or generated by the Bias Report Response Team. 1. Any document relating to the maintenance, retention, destruction, and/or final disposition of any records, as that term is defined in the Records Management Act, relating to the Bias Report Response Team. 2. Any document setting forth a list created pursuant to or in compliance with N.D.C.C. § 54-46-05(4) (requiring submission to the administrator of “lists of state records in the custody of the agency which are not needed in the transaction of current business and which do not have administrative, legal, or fiscal value”) which lists references or relates to records relating to the Bias Report Response Team. 3. Any document created or received pursuant to N.D.C.C. § 54-46-08 (requiring a determination by the administrator before final disposition of records) which pertain to any records relating to the Bias Report Response Team. This request includes, but is not limited to, any documents reflecting or relating to consultation with the “official or department head concerned, the attorney general, the state auditor, and the state archivist[.]” 4. Any document reflecting, pursuant to N.D.C.C. § 54-46-09, any procedures and/or interpretation guiding the disposition of nonrecord materials which procedure or interpretation pertains to any records relating to the Bias Report Response Team. 5. Any document setting forth the Record Category Number (i.e., the Record Category Number set forth on any applicable retention schedule) relevant to records relating to the Bias Report Response Team. 6. Any document, including (but not limited to) emails, relating to NDSU’s receipt, response to, processing, or investigation of my July 16, 2016, records request, NDSU’s August 9, 2016, response, or my August 9, 2016, email requesting clarification as to NDSU’s response. 7. Any reports submitted to the Bias Report Response Team on or after August 9, 2016. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 13 “Document” means any record consisting of handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored. !7!! are controlled by students, alumni, or faculty members, nor by governmental or advisory bodies controlled by the same. Any search should be limited to documents held by the case management team, its members, and its staff, including volunteers. Should you have any questions, please don?t hesitate to call or email me. Sincerely, A Adam Steinbaug adam@thefire.org (215) 717?3473