The U.S. Supreme Court has refused to hear a free speech case alleging that so-called ‘bias response teams’ at universities and colleges violate the First Amendment by policing students that express unfashionable views about issues including LGBTQ+ rights, border controls, Donald Trump, climate change, and the Black Lives Matter movement.
According to free speech advocacy group Speech First, over 450 U.S. colleges and universities had bias-reporting systems in place as of 2022, and there is now no bigger mechanism on campus that serves to silence, deter, and chill student speech.
These systems encourage students to report one another for expressions of ‘bias’ – defined as any “expression against a person or group because of” an enumerated list of characteristics, including “age, colour, disability, gender, gender identity, gender expression, genetic information, national origin, political affiliation, race, religion, sexual orientation, veteran status, or any other basis protected by law”.
Under this Stasi-like system, 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” then investigates reports of wrongthink, with the option to refer students for discipline or to the police.
In its legal case against Virginia Tech, Speech First describes the institution’s team as “a literal speech police” whose presence on campus “objectively chills” student speech, particularly the speech of students who hold “unpopular” and “controversial” views on issues like LGBTQ+ rights, climate change, and the Black Lives Matter movement.
Court records show that alleged incidents of bias – which could be filed anonymously online – were reviewed on a weekly basis by a group of university administrators, along with a panel that also included representatives from student groups and the Virginia Tech police department.
The panel were able to call in the accused student – whom the policy pre-emptively labelled as the “perpetrator” – for a meeting, and could then require “[i]nterventions of either an educational or restorative nature”, or even refer a student for formal discipline or to the police.
According to Virginia Tech, examples of bias incidents include “words or actions that contradict the spirit of the Principles of Community” and “jokes that are demeaning to a particular group of people”.
Unsurprisingly, this expansive policy has prompted students to report any and all perceived slights. For example, one report was submitted when “a student in a university residence hall overheard several male students privately talking crap about the women who were playing in a snowball fight, calling them not “athletic”’. Another person submitted a report after someone “observed the words Saudi Arabia on the white board of [a] room” – despite acknowledging that “[i]t was unclear what the motive or complete message of the text originally was”.
The case, one of several brought by Speech First against U.S. universities, challenged Virginia Tech’s “bias intervention and response team policy”, alleging that the university’s bias protocol, which established a formal framework for members of the university community to report bias, violates the First Amendment and effectively forces students to “censor their speech”.
Speech First originally lost its case in Virginia’s district court back in 2021, when Judge Michael Urbanski ruled that the group lacked the legal right to sue – known as ‘standing’ – because its members at Virginia Tech had not been injured by the protocol, as the bias response team “do not proscribe anything at all”. (Although the bias response team could report violations of the student code to Virginia Teach, the judge ruled that the bias protocol only allowed it to refer conduct that is not protected by the Constitution).
The Federal Fourth Circuit Court of Appeals’ then upheld the decision by a 2-1 majority in 2022, although Judge Harvie Wilkinson III strongly criticised the policy in his dissent, describing it as “a regime of comprehensive surveillance” that bore all the hallmarks of an Orwellian “Ministry of Truth”.
Following an appeal, a majority in the Supreme Court has now punted the case back to the Fourth Circuit Court of Appeals, with instructions to dismiss it as moot on the basis that Virginia Tech has since abandoned the policy following changes in leadership at the institution.
Justice Jackson, the first black woman to be nominated to the Supreme Court, denied the petition because of her views about when lower court decisions should be vacated based on mootness. However, Justice Clarence Thomas and Samuel Alito – both members of the Court’s conservative bloc – said they would have taken the case, and their dissent made clear just how seriously they take the new and emerging threat posed to campus free speech in the U.S. by bias response policies.
The context to this dissent is that the Fifth, Sixth and Eleventh Circuits have previously held that bias response teams do objectively chill students’ speech, while the Fourth and Seventh Circuits have previously said that they do not. (In a particularly scathing opinion from the Eleventh Circuit Court of Appeals regarding the University of Central Florida’s bias response team, Judge Stanley Marcus wrote that the institution’s approach “objectively chills speech”, before commenting that: “A university that turns itself into an asylum from controversy has ceased to be a university; it has just become an asylum.”)
In his dissent, joined by Alito, Thomas wrote: “[The petition] raises an important question affecting universities nationwide. Yet, because of the split among the Courts of Appeals, many of these universities face no constitutional scrutiny, simply based on geography. I have serious concerns that bias response policies, such as Virginia Tech’s, objectively chill students’ speech.
“I am sceptical of the Fourth Circuit’s conclusion,” he continued. “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.
“First, the university’s bias response policy appears limitless in scope.
“Second, the threshold for reporting is intentionally low. The policy permits anonymous reporting, meaning there is little to no social cost for accusing a classmate of bias. And, students are encouraged to report other students for anything that even hints of ‘bias’.
“Third, a report can have weighty consequences. After a report is filed, it goes to the bias response team… And, of course, every report – regardless of whether the team determines bias exists – is recorded and kept on permanent file by the university. Thus, even if the ‘perpetrator’ is not technically required to accept the team’s invitation to meet, it is hard to believe a college student could so easily ignore a university official’s request, especially when the report will be filed and ‘the referral power lurks in the background of the invitation’.
“Considering the scope and enforcement of the university’s policy, it is at least a close question whether ‘students [may] self-censor, fearing the consequences of a report to [the bias response team] and thinking that speech is no longer worth the trouble’. This seems particularly true regarding controversial issues where dissenting opinions might be deemed biased.
“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: 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,” Judge Thomas concludes.
Speech First’s Executive Director Cherise Trump said in a statement that she is disappointed with the decision but glad that her organisation’s litigation ended the bias response team at Virginia Tech.
“I agree with the dissenting opinion that these policies are deeply concerning for the state of free speech on college campuses, they aren’t going away anytime soon, and 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.”
