Supreme Court avoids ruling on college bias policies

On Monday, the Supreme Court declined to rule on the constitutionality of college “bias response teams,” an issue that has split appellate courts across the country.

Speech First, a national free speech advocacy organization, filed a lawsuit in 2021 on behalf of three of its members who attended Virginia Tech. The suit alleged that the students wanted to speak out about their conservative views but felt they could not because of the school’s bias incident response team, along with a series of other bias-related policies.

Justices Clarence Thomas and Samuel Alito dissented from the Supreme Court majority, arguing that policies like Virginia Tech’s deter students from speaking freely and that the court needs to resolve this issue on a national level.

A then-dean of students at Virginia Tech created its “Bias Incident and Response Team” in 2018 to create a “respectful and welcoming environment” for all, according to a court filing. The team served as a clearinghouse for student reports of bias, harassment, and discrimination. Members reviewed complaints and referred them to other administrative offices for follow-up.

But Speech First contended that Virginia Tech’s team was allowed to punish students who expressed opinions on controversial topics, especially when voicing conservative views. The suit alleged that students were reported for writing a satirical article about “safe spaces,” tweeting “#BlackLivesMatter,” chalking “Build the Wall” on a sidewalk, and expressing support for former President Donald Trump.

After Speech First lost its argument in a lower court, the organization then took the case to the U.S. Court of Appeals for the 4th Circuit. The circuit court upheld the prior decision, ruling that the university did not objectively chill students’ speech. “The First Amendment does not stand in the way of modest efforts to encourage civility on college campuses,” the court wrote.

Speech First then appealed the case to the Supreme Court in August 2023. But Virginia Tech had already disbanded its bias response team earlier in the year when the dean who created it left. The school reassured the Supreme Court it would not revive the program. The justices then ordered the lower court to dismiss the case as moot. But Thomas said the court should have heard the case because “it raises an important question affecting universities nationwide.”

“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,” he wrote.

He pointed out that the policy is concerning because it is limitless in scope and gives reporters anonymity, meaning there is “little to no social cost for accusing a classmate of bias.”

Speech First estimates that more than 450 universities have bias-reporting programs. “These policies are deeply concerning for the state of free speech on college campuses, [and] they aren’t going away anytime soon,” Speech First Executive Director Cherise Trump said in a news release. “As long as we don’t have a national resolution on this issue, the First Amendment violations that arise from the existence of [bias response teams] will be subject to patchwork First Amendment protections.”

John Bursch is the vice president of appellate advocacy at Alliance Defending Freedom, which was one of 21 organizations that had filed amicus briefs in support of Speech First’s petition to the court. Bias response teams are a violation of free speech rights and keep students from talking about sensitive topics like abortion or LGBTQ issues, Bursch said.

“The Virginia Tech policy that was in place was a flagrant First Amendment problem,” he said. “Students could anonymously report harassment or discrimination and these often turned into witch hunts based on speech that students disagreed with.”

Bursch said it was disappointing that the Supreme Court didn’t take up this case, but he added that it’s only a matter of time until another comparable case makes its way to the Supreme Court. Circuit courts across the country have split over similar anti-bias programs at other universities. The 5th, 6th, and 11th Circuit Courts have found that bias response teams do stifle students’ speech, while the 4th and 7th Circuit Courts have said otherwise.

“If there’s no clarity from the U.S. Supreme Court, colleges will continue to enforce and implement [bias response teams] on their campuses,” he said. “In the meantime, speech is being chilled and squelched and that’s just a disaster.”