College bias response teams won’t get SCOTUS review

(CN) — The Supreme Court on Monday declined to rule on the constitutionality of college bias response teams, a question that has split federal appeals courts, dismissing as moot a request to take up a free speech group's case against Virginia Tech.

Justices Clarence Thomas and Samuel Alito dissented with the majority, citing concerns that such policies deter students' free speech rights.

Speech First, a national membership organization seeking to protect free speech on college campuses, sued Virginia Tech in April 2021 seeking to permanently enjoin the university's policy allowing students to report "bias incidents" through an online portal.

Virginia Tech defines bias incidents as "expressions against a person or group,” based on “age, color, disability, gender (including pregnancy), gender identity, gender expression, genetic information, national origin, political affiliation, race, religion, sexual orientation, veteran status, or any other basis protected by law.” They can occur on or off campus, including on social media. Students are instructed to review their “language, images, and other forms of communication to make sure all groups are fairly represented.”

A “bias intervention and response team” made up of university officials then investigates reports and may refer students for discipline or to the police.

Speech First argued in its petition for review to the justices that the policy creates “a literal speech police” and violates the First Amendment by chilling its student-members’ speech, causing students to stay silent on controversial or unpopular issues for fear of being reported to the university.

The group lost its argument in federal court, where a judge concluded that the group lacked standing because the school's response team lacks the authority to discipline or punish students. The Fourth Circuit upheld the decision, finding the university's policy did not objectively chill students' speech.

In his dissent, Justice Thomas cast doubt on the circuit court ruling.

"I am skeptical of the Fourth Circuit’s conclusion. The scope of Virginia Tech’s policy combined with how it is enforced suggests that the university is stifling students’ speech, at least enough to provide Speech First standing to pursue its First Amendment claim," Thomas wrote.

The Fifth, Sixth and Eleventh Circuits have held that bias response teams do objectively chill students’ speech, while the Fourth and Seventh Circuits determined they don’t.

"I would grant the petition. It raises an important question affecting universities nationwide; Speech First estimates that over 450 universities have similar bias-reporting schemes. Yet, because of the split among the Courts of Appeals, many of these universities face no constitutional scrutiny, simply based on geography," Thomas wrote.

"I have serious concerns that bias response policies, such as Virginia Tech’s, objectively chill students’ speech."

The George H. W. Bush appointee cited the court's precedent in Bantam Books, Inc. v. Sullivan (1963), which found that threats and other means of "coercion, persuasion, and intimidation" may cause self-censorship in violation of the First Amendment.

In their writ of certiorari petition, Speech First listed examples of reported bias incidents which included someone writing “Saudi Arabia” on a whiteboard outside of a student’s dorm room, and someone describing female students as unathletic. Other universities with bias response policies have received similar reports, the group stated.

In their dissenting opinion, Thomas and Alito expressed views similar to U.S. Circuit Judge Harvie Wilkinson's in his Fourth Circuit dissent, saying the policies create an oppressive atmosphere of scrutiny and over surveillance.

"This petition presents a high-stakes issue for our nation’s system of higher education. Until we resolve it, there will be a patchwork of First Amendment rights on college campuses," Thomas wrote.

"Students in part of the country may pursue challenges to their universities’ policies, while students in other parts have no recourse and are potentially pressured to avoid controversial speech to escape their universities’ scrutiny and condemnation. We should grant certiorari to resolve this issue."

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