The U.S. Supreme Court on March 3 turned away a free speech group’s challenge to so-called bias response teams it claims unconstitutionally chill speech on campus.
The court denied the petition in Speech First Inc. v. Whitten without comment. At least four of the justices must vote for a petition for it to advance to the oral argument stage.
The policy asks students to file a report with university officials if they become aware of a bias incident.
“Indiana University is committed to creating welcoming, inclusive, and respectful campus communities where everyone can thrive and do their best work—a place where all are treated with civility and respect,” the university states on its website.
Speech First argues the policy runs afoul of the First Amendment-based free speech rights of its student members at Indiana University.
The speech standards articulated in the policy were sufficiently vague that they deprived students of their constitutional right to comprehend what conduct is forbidden, the group says.
Because campus speech codes are often struck down by courts, universities “have looked for subtler, more sophisticated ways to chill disfavored speech,” according to the petition.
Hundreds of schools have created bias response teams, which “deter” speech “by threatening students with adverse consequences.” They also “burden it” with administrative and other costs imposed on students who commit “bias incidents,” the petition said.
It cited an appeals court judge who likened bias response teams to a “bureaucratic superstructure” with “incipient inquisitorial overtones.” Other commentators have dubbed them “the stuff of Orwell,” and “the clenched fist in the velvet glove of student speech regulation.”
Thomas wrote in his dissent, “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.”
Upwards of 450 of the nation’s universities and colleges have “bias response teams” that “encourag[e] students to report one another for expressions of ‘bias,’” the justice wrote.
“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,” he wrote.
According to the petition, Speech First sued the university in May 2024, asking the federal district court to block the school from enforcing its policy.
Anticipating a denial of its motion, the group requested a prompt ruling so it could subsequently appeal and ask the U.S. Court of Appeals for the Seventh Circuit to overrule Speech First Inc. v. Killeen.
In Killeen, the group had challenged a University of Illinois bias response policy. In July 2020, the circuit court ruled the group lacked standing to contest the policy.
Standing refers to the right of someone to sue in court. The parties must show a strong enough connection to the claim to justify their participation in a lawsuit.
In August 2024, the district court declined to issue a preliminary injunction in the case against Indiana University, finding that under Seventh Circuit precedent, Speech First lacked standing to ask for preliminary injunctive relief.
The Seventh Circuit affirmed that in September 2024, finding that “any issues which could be raised are foreclosed by this court’s holding in Speech First Inc. v. Killeen.”
Based on the Killeen ruling, “the district court correctly held that Speech First does not have standing to seek a preliminary injunction because it has not shown that its members face a credible fear of discipline,” the circuit court held.
Justice Alito did not explain why he would have granted the petition that was pending before the Supreme Court.
