The Supreme Court on Monday sidestepped a challenge to college “bias response teams,” which critics say are a form of speech police that chill freedom of expression.
The court said the dispute over the practice at Virginia Tech, whereby students could report incidents of alleged bias on campus, is moot, likely because the policy has since been discontinued. Other colleges have similar programs.
Justice Samuel Alito and Justice Clarence Thomas, both conservatives, said the court should have taken up the issue. In deciding the case was moot, the court tossed out an appeals court ruling in favor of the university.
“The scope of Virginia Tech’s policy combined with how it is enforced suggests that the university is stifling students’ speech,” Thomas wrote.
Until the Supreme Court steps in, “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 added.
Speech First, a nonprofit group that challenged the policy, says it is equivalent to a “speech code” that threatens students with punishment if they exercise their free speech rights under the Constitution’s First Amendment.
Campus speech has become a subject of debate in recent years, especially on the right, where activists have accused college administrators of suppressing the free speech rights of conservatives.
Under the Virginia Tech policy as it existed at the time, complaints would be reviewed by a panel that included administrators and representatives from the campus police department.
Speech First said in court papers that the presence of police officers on the team showed that the panel constituted “a literal speech police.”
The college responded in its own court filing that said the panel would screen complaints to ensure compliance with the First Amendment and had no power to discipline students. The panel’s interactions with students would not appear on any student’s academic record, the university’s lawyers said.
The policy was rescinded last year in a move the university said was not connected to the litigation. As such, lawyers argued that the case was moot, meaning the Supreme Court did not need to get involved.
Separately, the university also argued that Speech First did not have legal standing to challenge the policy.
After Speech First sued in 2021, a federal judge declined to block the policy. That decision was upheld by the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals in May.