When the University of Michigan finally agreed to disband its creepily named Bias Response Team two years ago, Nicole Neily recognized it as a big win for the First Amendment. 

Neily is president and founder of Speech First, a nonprofit that filed a suit against the University, claiming that bias was so vaguely defined that practically anything could be construed as offensive.    

Speech First filed a lawsuit in May of 2018 asserting that the University of Michigan’s policy could chill freedom of speech on campus, and that enforcement would be arbitrary and discriminatory. 

Indeed, the University informed students that, “The most important indication of bias is your own feelings,” which ensured that nobody was safe from a visit from the BRT. “Offenses” could be reported anonymously. The bias team could offenders to attend training courses or face more severe punishments. 

The University of Michigan and Speech First reached an agreement that abolished the BRTs and instituted instead a Campus Climate Support program. (Yes, the name also sounds a bit Orwellian, but Speech First reserves the right to keep an eye on the CCS.) 

“This victory paves the way for college students who may have been too fearful or intimidated to express their opinions to finally embrace their free speech rights and engage in true academic discourse,” Neily told The College Fix.

The University of Michigan informed students that, “The most important indication of bias is your own feelings.”

Founded in 2018, Speech First is a membership organization that aims to promote free speech on campus. The plaintiffs in the Michigan lawsuit were members of the organization, but their anonymity was preserved. The Michigan case came about after Neily met a Michigan undergraduate at CPAC, who told her about speech intimidation on campus.  Bias response teams, which began to proliferate on campuses around 2013, were key.

“The bias response teams allow students to go onto a portal on the school’s website and report their classmates,” Neily explains. “So, I could go on to umich.edu, and say So and So said such and such. I don’t have to have my name attached to this complaint. I can just make an accusation and then the school would look into it. If you were the accused student, they’d call you in, you’d get an email saying that a report has been filed against you. Please come and talk to us, and that’s a terrifying thing.

“Michigan kept a pretty detailed log of the different bias response reports that have been filed on their campus. One of the more notorious ones was that somebody had filed a bias report because somebody had built a phallic-shaped snow sculpture. And most people know this is just an 18-year-old boy being immature, but who is so offended, who is so aggrieved that they feel that this necessitates a formal complaint to a university, requires an investigation? Is this a good use of school resources? Another kid at Michigan State had a bias report filed against him about a year ago because he was watching a Ben Shapiro video in his dorm room.”

“The offense could be intentional or unintentional, so I could get in trouble for saying something to you that I didn’t mean to hurt your feelings. It puts students in the position of needing to tailor their language to the most sensitive student on campus, and then it makes perfect sense for students to self-censor, because nobody wants to be in that situation where you’re called in and disciplined because somebody took a comment you made the wrong way. It’s all well and good for schools to try and protect the emotional health of their students. But what we were seeing at Michigan was a flagrant constitutional violation on the part of a public university.”

Speech First also maintains that bias response teams are inimical to the process of becoming an educated person. The lawsuit quoted Jeffrey Aaron Snyder and Amna Khalid who wrote in The New Republic that “the proliferation of [bias response teams] is a grave mistake. They degrade education by encouraging silence instead of dialogue, the fragmentation of campuses into groups of like-minded people, and the deliberate avoidance of many of the most important—and controversial—topics across all academic disciplines. They are inherently anti-intellectual enterprises, fundamentally at odds with the mission of higher education. And ultimately they will undermine a bedrock principle of the modern university: that more diversity leads to better learning.” 

“[W]ithout the space to debate and argue, students won’t ever be forced to confront the underlying assumptions framing their worldviews,” Snyder and Khalid wrote.

Speech First also maintains that bias response teams are inimical to the process of becoming an educated person.

Neily grew up on Chicago’s affluent North Shore, the daughter of a Japanese American father, who was in banking, and an Irish mother, who still has a green card.  Neily remembers her North Shore neighborhood as “a nice, happy suburb,” which her brother dubbed Pleasantville, to denote its idyllic, midwestern atmosphere. But not everything in the family’s history is idyllic: her paternal grandparents met at the Manzanar War Relocation Center in California, where Japanese American citizens and resident Japanese were interned during World War II. Both her grandparents were U.S. citizens who were born in the U.S. Her great grandfather was a resident alien who registered for the drafts in both World War I and World War II. 

“My grandparents on my dad’s side lived in Washington State. They were strawberry farmers. Because of the different land law acts, they weren’t able to own land. They ended up moving to California and being shopkeepers. They had a fruit stand in Pasadena. And after Pearl Harbor was bombed, my great uncle ended up enlisting in the Army on December 31st, 1941. I mean, he was one of the first people to join, and he was in the 442nd. My grandfather was in law school at the time. He was at UC Berkeley, and ended up being a translator in the Military Intelligence Service and helped MacArthur rewrite the Japanese Constitution after World War II was over.

“My grandmother’s family were fishermen in a town in the harbor in Los Angeles called Terminal Island,” Neily continued. “It was basically just razed, and it’s now just part of the harbor. But it was a Japanese fishing community. And so, they were actually some of the first people who were interned because officials were worried that the fishing boats were going to signal the Japanese to land or something. And so, they were taken away. They were put in Manzanar, as were my father’s family.” 

The U.S. required that even U.S. citizens of Japanese heritage sign a loyalty oath to the United States. “The loyalty oath became a whole flash point for those who felt that it was insulting,” Neily continued. “They reasoned, ‘I’ve never been loyal to the emperor. Why would I be loyal now?’ And so, people ended up saying ‘no.’ And they ended up being repatriated back to Japan.” Having met while both were in Manzanar, Neily’s grandparents became reacquainted in Tokyo, where they were married. Nicki’s father was born on an American military base in Japan.  

“Because my grandmother’s family had their citizenship terminated on December 25, 1945, the State Department had to issue a declaratory judgement to ascertain US citizenship before she could move back to America with my father in 1951.”

But not everything in the family’s history is idyllic: Neily’s paternal grandparents met at the Manzanar War Relocation Center in California.

After growing up on the North Shore, Nicki went to the University of Illinois (which Speech First also has sued), where she was active in Alpha Chi Omega sorority and served as vice president of the Panhellenic Council. Neily majored in political science and passed out the ACLU’s “know your rights” cards. In pursuing a master’s degree from Pepperdine University’s School of Public Policy, Nicki was exposed to a Great Books-based curriculum that changed the way she thought. 

“I feel kind of lucky that I sort of fell backwards into conservativism,” Neily says, “because I was a Democrat in college. And in the first semester at Pepperdine, I had a professor who had us read Wealth of Nations, and Milton Friedman, and Hayek. And it was really Milton Friedman’s Capitalism and Freedom that made the scales fall from my eyes.  I suddenly realized that the best way to help the greatest number of people is by giving them choice and empowering them. That a rising tide will lift all ships. This is not a zero-sum game. Just because I have more doesn’t mean you have less.” 

Newly empowered by ideas of Friedman and Hayek, Neily headed for Washington, D.C., where she “worked my way through the think tank world.” She has toiled at the Cato Institute, Competitive Enterprise Institute, and was executive director of IWF. She also worked at the Winston Group and Dezenhall Resources, a crisis communications firm. Immediately before founding Speech First, Neily was president of the Franklin Center for Government and Public Integrity, an investigative journalism nonprofit. The Franklin Center encourages citizen journalism through its investigative arm, Watchdog.org.

While serving as president of the Franklin Center, Nicki, already interested in First Amendment issues, became aware of how difficult it is to report on institutions of higher learning. Franklin, through considerable shoe leather, broke an explosive story about cronyism at the University of Texas. Neily realized that students have a hard time taking on universities when their First Amendment rights are threatened. Neily founded Speech First to give students an organizational to assist them in making their schools live up to their freedom of speech obligations. 

“Schools have kind of figured out how to game the system,” Neily says. “They know that if students were to sue them, even if somebody is very brave, all you need to do is to wait that student out. If the student graduates, transfers, is kicked out, then the courts will say, well, the harm has gone away. It’s moot. And so, the case is thrown out.   All schools need to do is appeal, delay, and deny, and then suddenly the kid’s gone and the case is gone. That’s why students need a group like Speech First to help carry the cause.”

Speech First works with a boutique law firm, Consovoy McCarthy, that is mostly staffed by former Supreme Court law clerks. The organization protects the identities of the students who come to them with free speech issues. Neily told Politico how it works. “I think the deck is really stacked against students who want to fight back,” she said, “and so we’re structured as a membership association that files cases on behalf of our students. So, I get the hate mail instead of students getting hate mail, and it also means that we’re able to maintain standing [to sue].”

“Schools have kind of figured out how to game the system,” Neily says.

In its two years, Speech First has won impressive accolades—George Will hailed it as a “splendid new organization,” and the Department of Justice filed a supportive statement of intent in the Michigan University case. Neily has a personal reason for fighting for free speech on campus. She and Clark Neily, vice president for criminal justice at the Cato Institute, have a son, 6, and a daughter, “five going on 14,” and Neily would like to see freedom of speech preserved for them. The couple, who have been married ten years, met at a Competitive Enterprise Institute gala.

We go to college to learn, Neily reminds us, and this is impossible without freedom of speech. “There have been reports from across the country of professors getting reported for trying to discuss books,” she says. “How do you discuss Faulkner without discussing racial overtones, right? I mean, how do you discuss books in law school without talking about assault and rape? You can’t cut that off because some student feels triggered or aggrieved. You go to school to debate, and discuss, and to learn, and to be exposed to different viewpoints.”

Thanks to Neily, future college grads have a better chance of being exposed to the best that has been thought or said, triggers and all.