Court upholds bias-reporting policy at Virginia Tech

The Virginia Tech Principles of Community include support for the freedom of speech, including “the right of each person to express thoughts and opinions freely,” according to the college’s website. But the next sentence of the principles tempers that ideal: “We encourage open expression within a climate of civility, sensitivity, and mutual respect.”

In an effort to create that climate, Virginia Tech instituted policies to monitor student conduct. On Wednesday, the 4th U.S. Circuit Court of Appeals handed down a 2-1 decision affirming that the policies do not violate students’ First Amendment rights. Speech First, a group dedicated to protecting speech rights on college campuses, first filed a lawsuit against the school in 2021. The group argued that the Virginia Tech policies intimidate students into keeping silent about their strong views.

In the suit, Speech First sought to block the enforcement of the Virginia Tech policies. One of those policies barred students from “urging religious beliefs on someone who finds it unwelcome.” Another set up a bias incident reporting system that encourages students to report their peers. The lawsuit also sought relief from a rule against passing out flyers and a prohibition on partisan political communication on university computer systems. Such policies, the group said, effectively chill free speech on campus.

The court found that the group lacked standing to challenge the bias policy because its members had suffered no injury. Judge Diana Gribbon Motz, a Clinton appointee, penned the decision and reinforced that the Virginia Tech Bias Intervention and Response Team (BIRT) has no real power to punish. The meetings that follow a report are voluntary. Moreover, the team has no power to impose any sanctions, “nor is there any evidence that the BIRT makes threats suggesting that it can punish students.”

The lawsuit also took issue with a school policy that allows only registered student organizations to set up informational tables, start petitions, or hand out literature. Speech First, which is not registered, said that policy could result in students being turned down for their viewpoints. The court found Virginia Tech used the policy more as a reservation system to address concerns over physical space constraints on campus, not to restrict speech.

Judge J. Harvie Wilkinson III, a Reagan appointee, wrote the dissenting opinion. He painted a hypothetical picture of a Virginia Tech sophomore debating whether to add a comment to a class discussion. Not wanting to end up the center of student gossip or with a record with the dean, she ultimately chooses not to say anything at all.

Wilkinson wrote that though Virginia Tech promises to uphold the First Amendment and gives assurance that the BIRT does not dole out punishment, the real-world consequences of the system turn the campus into what he termed “a surveillance state.”

“The reality is that Virginia Tech has constructed a complex apparatus for policing and reporting whatever administrators may deem ‘biased speech,’’ Wilkinson wrote. “The intricate program has a straightforward effect: Students self-censor, fearing the consequences of a report to BIRT and thinking that speech is no longer worth the trouble.”

Wilkinson called the BIRT’s eye on student behavior “ubiquitous.” Students are encouraged to watch for biased speech in classrooms, on social media, and off campus. They are told to make a report whether or not they are certain it qualifies as biased. “Mutual suspicions fester, as any society bereft of basic freedoms can attest,” Wilkinson wrote.

Motz’s response to the dissent included a finding by the district court that students do not feel compelled to come to BIRT meetings about incident reports. “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,” she wrote.

Speech First has sued eight other colleges in the past five years and so far has won two cases and settled four. The group echoed Wilkinson’s conclusions, saying its members actively self-censor. “The truth is that those who believe their views are the least popular will be the first to clam up,” the group said in a statement released after the decision. “No student who knows his speech will rouse applause will hesitate to make his voice heard. But the student who wishes to dissent will shrink from the stage.”