Supreme Court Justices Thomas and Alito dissent as the majority declines to hear a case challenging university “bias response teams” that critics say silence conservative speech on campuses nationwide.
At a Glance
- The Supreme Court refused to review the constitutionality of college bias response teams, which operate at more than 450 U.S. universities
- Justices Clarence Thomas and Samuel Alito dissented, arguing the case presented an opportunity to resolve important First Amendment questions
- Federal appeals courts are currently split on whether these university policies improperly chill free speech
- Conservative students at Indiana University claimed the bias reporting system forced them to self-censor unpopular views
- Justice Thomas warned the Court’s inaction leaves students with varying First Amendment protections based on geography
Bias Response Teams Under Scrutiny
The Supreme Court has declined to hear a challenge to university “bias response teams,” leaving in place a lower court ruling that favored Indiana University’s controversial reporting system. The decision comes despite strong objections from Justices Clarence Thomas and Samuel Alito, who argued the case deserved review. The lawsuit, brought by a group of conservative students called Speech First, claimed that these university systems – which encourage reporting speech perceived as biased – effectively silence unpopular political viewpoints, particularly conservative opinions on issues like immigration and gender identity.
More than 450 American colleges and universities have established bias response teams, according to court documents. These teams typically encourage students to report instances of perceived bias, which are then reviewed by university officials who may request meetings with reported individuals or refer them to support services. Though these systems rarely result in formal discipline, critics argue they create an atmosphere of surveillance that intimidates students from expressing controversial views that might trigger reports.
Justices’ Strong Dissent
Justice Thomas authored a strongly worded dissent that Justice Alito joined, expressing concern about the Court’s refusal to intervene on an issue affecting hundreds of universities nationwide. The justices emphasized that federal appeals courts have reached contradictory conclusions about these bias response systems, creating a patchwork of constitutional protections across different regions of the country. The Fifth, Sixth, and Eleventh Circuits have found that bias response teams improperly chill free speech, while the Fourth and Seventh Circuits reached the opposite conclusion.
Thomas criticized the Seventh Circuit’s approach in the Indiana University case as “very likely wrong,” arguing it conflicts with established precedent on when government policies have a chilling effect on protected speech. He pointed out that the Court would eventually need to resolve this circuit split given the widespread adoption of these systems at American universities. The Justice further warned that the decision 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.”
The Indiana University Dispute
The case centered on Indiana University’s bias incident policy, which defines bias incidents as “conduct or speech” motivated by prejudice based on protected characteristics. The university invites students to report these incidents anonymously through an online portal. While these reports do not typically lead to formal punishment, the bias response team may reach out to involved parties and offer counseling services or educational interventions. Speech First, representing conservative students at the university, argued this system created a form of informal punishment and surveillance that chilled their willingness to express views on controversial topics.
The Seventh Circuit Court of Appeals ruled against the students, finding they had failed to demonstrate an “objectively reasonable chilling effect” from the university’s policies. This ruling conflicted with decisions in other federal circuits, which found similar university systems did impose unacceptable restrictions on free expression. The Supreme Court majority did not explain its reasons for declining to hear the case, as is typical when the Court denies review. The split among lower courts means that identical university policies may be constitutional in some regions of the country while violating the First Amendment in others.
