“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,” Justice Clarence Thomas wrote in dissenting from the decision. He was joined by Justice Samuel A. Alito Jr.
The case is one of nine filed by the advocacy group Speech First challenging university bias-reporting policies on behalf of conservative students who say they are being silenced. Several other influential organizations on the right backed the challenge, including the powerful Christian legal group Alliance Defending Freedom.
Virginia Tech’s “Bias Intervention and Response Team” was created in 2018 by the then-dean of students. He said in a court filing that he wanted to make the reporting process simpler, more efficient and easier to track. “BIRT serves as a sort of ‘air traffic control’ for bias-related complaints,” he wrote in 2021. Posters on campus encouraged students to “make a report … if you hear or see something that feels like a bias incident, statement, or expression.”
The team had no power to discipline students accused of bias or even to require them to discuss an incident with school officials. It could refer allegations of criminal activity to the police, and claims of school code violations to the appropriate administrators, but with no more authority than any individual on campus. Complaints that involved protected speech were not pursued by the office, administrators said. But Speech First argued the policy nevertheless made students afraid to voice conservative views such as support for Donald Trump or opposition to affirmative action, illegal immigration, same-sex marriage and transgender rights.
Speech First provided no evidence that anyone had been disciplined or threatened with discipline by the bias team. While the group highlighted bias complaints it deemed unfair — such as a claim of gender discrimination after some male students dismissed the athleticism of female students during a snowball fight — there was no evidence the school took any action in response to those reports in the court record.
For those reasons, the U.S. Court of Appeals for the 4th Circuit concluded last year that Speech First did not have standing to challenge the policy.
“The First Amendment does not stand in the way of modest efforts to encourage civility on college campuses,” the 4th Circuit majority, made up of Democratic appointees, 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.” In dissent, a Republican appointee on the court argued that even if the bias system resulted in no discipline or obligation, it created “uncertainty” that “can cause students to fall silent rather than speak up.”
Speech First has successfully challenged university anti-discrimination policies in three other appellate courts after losing at the district court level, where a single judge reviews the evidence and would oversee any trial. The 4th Circuit majority wrote that those courts were “seemingly ignoring the factual findings” of district court judges who found no concrete evidence speech was being chilled. One appellate court, the 7th Circuit based in Chicago, ruled against the group, saying the lawsuit was based on “speculation.” But the University of Illinois settled that lawsuit before it could be appealed to the Supreme Court, in part by affirming its bias team has “no authority to impose any form of discipline on any student.” Several other schools have changed their policies or disbanded bias-reporting offices after being sued.
Brian Soucek, a law professor at the University of California at Davis, said universities have “a tricky line to walk” in balancing competing legal obligations — students’ free speech rights and their right to be protected from a racially or sexually hostile campus environment. “I see the bias-reporting teams as a way to navigate that dilemma,” he said, “to resolve incidents without discipline.”
It’s hard to tell whether its working, he said, because none of the litigation has involved a disputed intervention by a bias-reporting team. Instead, anonymous students have said they fear such action.
“There has never been a single instance of actual disciplinary action in any of these cases,” Soucek said. Instead, he said, “Judges are just filling in this absence of facts with their own views about the speech climate on campuses these days; they are really basing these standing decisions on vibes about what the state of free speech is on campus right now.”
Justice Ketanji Brown Jackson, one of the Supreme Court’s liberal members, also dissented, saying briefly that the court should have denied the petition to reconsider the ruling from the 4th Circuit because the challengers had not made a compelling case, rather than declaring it moot because of the change in policy.
In a statement, Speech First Executive Director Cherise Trump said the group was “disappointed” that the Supreme Court did not hear the case but took credit for ending Virginia Tech’s bias-reporting policy. “The battle for campus free speech is bigger than ever before and we will continue to defend our students’ right to free speech across the country,” she added.
A spokesperson for Virginia Tech declined to comment.
