More than 450 US colleges and universities have “bias response teams”, which monitor students for potentially offensive speech. The obvious question is whether such teams break the First Amendment’s guarantee of free speech – and are therefore unconstitutional. The unexpected answer is that nobody seems sure, with courts of appeal reaching different conclusions in different parts of the country.
So has the time come for the US Supreme Court to make a national ruling? That was the contention of Speech First, a group formed by five Indiana University students who say they hold political views that are unpopular on campus, including on “gender identity, immigration, affirmative action and the Israel-Palestine conflict”.
Last June, the group sued Indiana University in a federal district court to prevent it from enforcing its “bias incidents” policy, arguing that they’re forced to self-censor out of fear that others will report them to university officials. The group lost the case – but then decided to appeal.
US federal courts of appeal are divided into 13 geographical “Circuits”, and Indiana is covered by the Seventh Circuit, which agreed with the original verdict: given that the bias response team has no power to impose punishments, the students had failed to show they faced an “objectively reasonable chilling effect” on their speech or a credible threat of discipline.
In fact, this verdict is not without controversy. While the court was correct that Indiana’s bias response team doesn’t discipline students or conduct formal investigations, it does assess whether there have been “potential violations of university policy and/or criminal law” – and if so, can refer the matter to other campus offices with disciplinary power. The team also logs all reports in a database, which it tracks for trends.
Meanwhile, Speech First turned for a definitive ruling to the Supreme Court – which this week made its somewhat anti-climactic decision: it declined to consider whether bias response teams are a violation of the First Amendment.
The Court’s decision, however, wasn’t unanimous. Justices Samuel Alito and Clarence Thomas disagreed, with the latter providing a written “dissenting opinion” that at times verged on the blistering.
“This case presents an opportunity to resolve an important Circuit split,” Justice Thomas wrote. “Three Circuits, when evaluating similar facts, have rejected the Seventh Circuit’s view and found that bias response policies ‘objectively chill’ student speech… I would grant Speech First’s petition and resolve the split.”
Justice Thomas went on:
The Seventh Circuit’s approach is also very likely wrong. It is well settled that plaintiffs may establish standing [giving them the right to bring a Supreme Court suit] based on “the deterrent”, or “chilling”, effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights.
Given the number of schools with bias response teams, this Court eventually will need to resolve the split over a student’s right to challenge such programs. The Court’s refusal to intervene now leaves students subject to a “patchwork of First Amendment rights”, with a student’s ability to challenge his university’s bias response policies varying depending on accidents of geography.
Judge Thomas also had some had some harsh words for Indiana University itself. Under the policy there, after a student files a bias incident report, its team reviews the submission, then can either invite the student reported for an offensive comment to attend a meeting to discuss their behaviour, or refer the affected student to support services.
However, the university loosely defines the term “bias incidents” as “any conduct, speech, or expression, motivated in whole or in part by bias or prejudice meant to intimidate, demean, mock, degrade, marginalise or threaten individuals or groups based on that individual or group’s actual or perceived identities”.
“Unsurprisingly, such an expansive policy has prompted students to report any and all perceived slights,” Justice Thomas noted. He also pointed to examples of complaints from students which included somebody expressing a dislike for “China” and “Chinese things” – and a Facebook post featuring a picture of a sticker that said, “Diversity Divides Nations”.
All of which might sound depressingly familiar to UK ears.
More on the story here.
