Supreme Court ducks challenge to college bias response teams

The Supreme Court declined to wade into the constitutionality of college bias response teams Monday, dismissing as moot a request to take up such a case involving Virginia Tech.

Speech First, a group formed to advocate for students’ free speech rights, petitioned the court to hear an appeal after a lower court tossed its lawsuit over a Virginia Tech school policy enabling students to anonymously report bias incidents.

In an order issued Monday, the Supreme Court vacated the lower ruling and sent it back to the lower court with instructions to dismiss the lawsuit as moot. The school had requested that disposition, noting it has discontinued its bias response team.

Justice Ketanji Brown Jackson, a liberal who has often pushed back on how the high court handles moot cases, dissented without expressing any view on the merits of the case.

“In my view, the party seeking vacatur has not established equitable entitlement to that remedy,” Jackson wrote.

Conservative Justices Clarence Thomas and Samuel Alito separately dissented and did address the merits, describing it as a “high-stakes issue” and indicating they wanted to review the First Amendment challenge.

“I have serious concerns that bias response policies, such as Virginia Tech’s, objectively chill students’ speech,” Thomas wrote.

Speech First, which brought the case, has filed lawsuits challenging various bias response policies at universities across the country.

Those cases led to a split among the federal appeals courts as to whether Speech First has legal standing, meaning the ability to sue.

“This petition presents a high-stakes issue for our Nation’s system of higher education,” Thomas wrote in his dissent.

“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,” he continued.

The bias response team Virginia Tech created would have allowed students to anonymously report incidents of perceived bias to university officials, who would then call the reported student in for a “voluntary” meeting and ask them to explain their words or actions.

While these groups are controversial on campuses, they typically do not have the authority to punish a student, and further actions would have to be referred to another university body.

A divided panel of the 4th U.S. Circuit Court of Appeals ruled Speech First, which filed the case on behalf of three unnamed students at Virginia Tech, did not have standing because no reasonable student would self-censor, since the university’s team had no authority to punish them.

Speech First then appealed the case to the justices, blasting the school’s policy as “Orwellian” and a violation of students’ First Amendment rights.

“The question here has created an acknowledged five-circuit split, and the answer could not be more important to the constitutional rights of college students,” Speech First wrote to the justices. “This case is an ideal vehicle to resolve the split because Virginia Tech’s team is typical, the material facts are undisputed, and the legal question is fully vetted.”

The group is represented by J. Michael Connolly, a partner at conservative law firm Consovoy McCarthy. 

Connolly made his Supreme Court argument debut last term, representing a group of challengers to the Biden administration’s student now-defunct debt relief plan. Connolly was also involved in the recent Supreme Court case that struck down affirmative action in college admissions. 

Speech First Executive Director Cherise Trump said the group was “disappointed” with the court’s decision but glad that Virginia Tech had ended its bias response team.

“There is simply no bigger mechanism on college campuses that serves to silence, deter, and chill student speech,” Trump said in a statement. “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.” 

Virginia Tech, however, urged the Supreme Court to toss the new case as moot, noting it discontinued its bias response team.

The school declined The Hill’s request for further comment.

In a sworn statement to the justices, the school’s president, Timothy Sands, said the policy was envisioned by Virginia Tech’s dean of students and was discontinued after that person left the university. Sands said he would ensure the policy isn’t re-implemented.

Regardless, the school insisted its policy complied with the First Amendment. Virginia Tech is represented by former Virginia Solicitor General William Hurd, now an attorney at Eckert Seamans Cherin & Mellott.

“Virginia Tech recognizes that serious questions have been raised in the media and the courts about the right of free speech at some universities around the country,” the school wrote in court filings. “But Virginia Tech stands apart. Virginia Tech values its role in the marketplace of ideas and carefully adheres to the First Amendment. The overall mission of Speech First may be laudable, but when it sued Virginia Tech, it stumbled.”

Lexi Lonas contributed. Updated at 12:56 a.m.