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Fourth Circuit backs Virginia Tech bias reporting policy

The majority of a three-judge panel said efforts to encourage civility do not violate the First Amendment.

RICHMOND, Va. (CN) — A Fourth Circuit majority agreed Wednesday with a district court's determination that Virginia Tech's bias response team does not have a chilling effect on free speech.

"Our country rightfully places great value on the freedom of speech, and any statute or regulation implicating speech receives close scrutiny," the ruling states. "Freedom of speech, after all, is expressly protected in the very first of the original amendments to our Constitution. But the First Amendment does not stand in the way of modest efforts to encourage civility on college campuses."

The opinion penned by U.S. Circuit Judge Diana Gribbon Motz, a Bill Clinton appointee, came after oral arguments in October.

Speech First, an organization dedicated to protecting free speech on college campuses, brought the lawsuit against the Blacksburg, Virginia, university in 2021, seeking to block the enforcement of two policies.

The first is the bias response procedure, which allows students to report anonymously other students they believe are participating in biased actions to a group of Virginia Tech officials, who can then ask the student or students to voluntarily meet with them to talk about why their views may be problematic.

In Speech First's brief to the Fourth Circuit, the group detailed accounts from two Virginia Tech students who claimed they were forced to self-censor due to having unpopular opinions. One student believes the national Black Lives Matter movement triggered by the police killing of unarmed Black men is bad for the country, while the other thinks a wall must be built on the U.S.-Mexico border to keep illegal immigrants out. The record does not indicate evidence that the students faced academic trouble due to their opinions. 

The group also takes issue with the university's policy requiring students to get approval before petitioning or setting up tables on campus, believing certain students would be turned down due to their conservative beliefs. Virginia Tech offered evidence that it has limited physical space and that implementing a reservation system "ensures fair and equitable access" to its finite resources.

The district court held that Speech First lacked standing to challenge the bias response team policy because its members had suffered no injury and failed to demonstrate a likelihood of success on the merits. 

Affirming that decision, the Fourth Circuit rejected Speech First's assertion that Virginia Tech imposed a burdensome administrative regime that would cause an objectively reasonable student to refrain from engaging in politically charged speech.

"The record establishes that the BIRT [Bias Intervention and Response Team] does not even extend an invitation for a voluntary conversation in response to every complaint it receives," Motz wrote. "Rather, the BIRT often dismisses complaints because they involve constitutionally protected activity." 

The team does have the authority to refer conduct that is not constitutionally protected and that independently may violate the student code of conduct or the law to higher authorities, but not to refer unpopular political opinions. 

"Speech First has not shown that the bias policy credibly threatens injury to the organization's members," the opinion states. "And for this reason, Speech First's members have not demonstrated the injury, in fact, necessary to establish standing."

Motz was joined in the majority by U.S. Circuit Judge Albert Diaz, a Barack Obama appointee,

U.S. Circuit Judge J. Harvie Wilkinson III, a Ronald Reagan appointee, dissented.

"The stark reality of the record is that programs like the Bias Intervention and Response Team are being used in the service of discouraging that open inquiry from which education draws its very meaning and sustenance," Wilkinson wrote in his dissenting opinion. 

Motz strongly disagreed with her colleague's view. 

"The dissent's misguided journey produces a dramatic read, but it comes nowhere close to offering a basis for upending the district court's careful exercise of its discretion," the majority opinion states.  

Motz wrote that she considered the history of university campus dialogue, which for much of the United State's history has been a space dominated by white Christian men. 

"With this history in mind, many universities — Virginia Tech among them — find it equally vital to communicate that their campuses are places welcoming to all students, whatever those students' backgrounds and whatever their political, social, or religious views," she wrote. "Just as universities may legitimately strive to promote intellectual curiosity, so too they may legitimately strive to promote civility and a sense of belonging among the student body."

Speech First has brought similar challenges against universities in the Fifth, Sixth, Seventh, and Eleventh Circuits. The group sought a preliminary injunction in each case, and in each the district court denied the motion for lack of standing. 

Attorneys representing Speech First and Virginia Tech did not respond to requests for comment. 

Categories / Appeals, Civil Rights, Education, Regional

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