The Supreme Court on Monday declined to hear a challenge to Indiana University’s use of a “bias response team,” prompting a dissent from Justice Clarence Thomas, who argued the case was an important opportunity to resolve a split among federal courts over whether such programs infringe on student free speech rights.
Bias response teams, which operate at more than 450 colleges nationwide, encourage students to report incidents of perceived bias to school officials. These teams typically do not have direct disciplinary authority but can refer reported students to university administrators or law enforcement for further action.
Critics have argued that the policies “objectively chill” speech on campuses and pressure students to self-censor controversial viewpoints. Thomas, along with Justice Samuel Alito, said he would grant review of the cases to solve an “important split” between lower federal appeals courts.
Speech First, a free speech advocacy group, sued Indiana University over its bias response policy and said students feared punishment for expressing conservative views on gender identity, affirmative action, and other contentious topics. The lawsuit was dismissed under precedent from the U.S. Court of Appeals for the 7th Circuit, which previously ruled that bias response teams do not “objectively chill” student speech because participation in their proceedings is technically voluntary.
Thomas, who dissented from the Supreme Court’s decision not to take up the case, warned that the high court would eventually need to resolve the legal uncertainty surrounding bias response teams.
“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,” Thomas wrote.
The justice also criticized the 7th Circuit’s approach, pointing out that other federal appeals courts — the 5th, 6th, and 11th Circuits — have ruled differently, finding that bias response teams do chill student speech.
OVER 450 COLLEGES MAINTAIN SPEECH-POLICING BIAS RESPONSE TEAMS
Unlike a similar challenge to Virginia Tech’s bias response team, which the Supreme Court rejected last year because the university revised its policy mid-litigation, Indiana University’s program has remained in place.
“This case does not present any complicating features that would hamper review,” Thomas wrote, arguing the justices had no reason to deny the petition.
