Supreme Court sidesteps dispute over “bias-response teams” on campus

Washington — The Supreme Court on Monday declined to consider whether university “bias-response teams” chill students’ speech in violation of the First Amendment, sidestepping a clash of free speech rights and university efforts to root out bias on campus.

Justice Samuel Alito said he would take up the appeal from the organization Speech First, an organization that aims to protect free speech rights on college campuses. Justice Clarence Thomas dissented from the court’s denial of the case.

“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,” Thomas 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.”

At issue in the case was whether the bias-response teams that have been created at hundreds of universities chill speech on campus. Speech First has mounted similar challenges to bias-response teams at the University of Michigan, University of Texas and University of Central Florida.

The efforts at those schools, however, no longer exist after they reached settlement agreements with the group that eliminated the teams.

Speech First’s suit targets the response team at Indiana University, which created a Bias Response and Education initiative that includes a bias incident process. Through this initiative, students who witness or experience a “bias incident” are encouraged to submit a report to alert the school. The university defines a bias incident as “any conduct, speech, or expression, motivated in whole or in part by bias or prejudice meant to intimidate, demean, mock, degrade, marginalize, or threaten individuals or groups based on that individual or group’s actual or perceived identities.”

The university says that bias incident reports are reviewed by a team of university officials who may initiate conversations around the incident and impacted students; refer the reporter to appropriate campus offices; and refer the impacted students to support resources. The team also logs reported incidents and tracks them for trends, notifies campus leaders of ongoing bias incidents and educates the campus community about bias, according to its website.

The bias-response team does not take disciplinary action, conduct formal investigations or “impinge on free speech rights and academic freedom,” its website states.

Speech First brought its lawsuit against Indiana University in May 2024 on behalf of members at the school who are “politically conservative and hold views that are unpopular, controversial, and in the minority on campus,” according to court filings. One student, for example, believes that “sex is determined by biology” and transgender women shouldn’t be allowed to compete in women’s sports, the group said.

But Speech First said the students censor their speech because of Indiana University’s bias policy and fear they will be reported to the school for committing a bias incident. 

The group asked a federal district court to block the university from enforcing its bias-incident policy and argued it violates students’ free speech rights. The court denied Speech First’s request for an injunction because of a ruling in a similar case involving the Bias Assessment and Incident Response Team at the University of Illinois at Urbana-Champaign.

In that case, the U.S. Court of Appeals for the 7th Circuit found that Speech First did not have the legal right to sue because the University of Illinois’ team didn’t have the power to formally punish students. The 7th Circuit said Speech First failed to demonstrate whether any student faced an “objectively reasonable chilling effect” on his or her speech.

The appeals court then upheld the district court’s decision in the case involving Indiana University, and Speech First appealed to the Supreme Court.

“Bias-response teams chill speech by creating a formalized system where students constantly monitor and anonymously report each other to the university,” the group’s lawyers told the Supreme Court in its petition. “The reputational damage from being labeled a bias offender is chilling too. As is the knowledge that officials are logging and investigating protected speech. “

The high court has considered the issue of bias-response teams at universities once before. In March 2024, the court ordered a federal appeals court to toss out a case challenging Virginia Tech’s bias intervention and response team policy, likely because it had been changed.

But two justices, Thomas and Alito, said they would have agreed to hear that case.

“This petition presents a high-stakes issue for our nation’s system of higher education,” Thomas wrote in an opinion joined by Alito. “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.”