The Supreme Court ducked a lawsuit over so-called bias response teams at Virginia Tech, ruling on March 4 that the case should be sent back to a lower court.
After the litigation was initiated, Virginia Tech rescinded its bias response team policy, thus mooting, or ending, the legal controversy.
Two conservative justices dissented, saying that the Supreme Court should have agreed to hold oral arguments to give a public airing of the issues involved in the case. A liberal justice also dissented, saying that the Supreme Court shouldn’t have vacated the lower court’s ruling.
The case, Speech First Inc. v. Sands, is about whether university bias response teams—officially constituted bodies that seek out, track, and investigate reports of bias and threaten to refer students for formal discipline—chill students’ speech, and therefore violate the First Amendment.
Petitioner Speech First is a Washington-based nonprofit. Respondent Timothy Sands is president of the Blacksburg-based University of Virginia Polytechnic Institute and State University, also known as Virginia Tech.
According to court documents, the school’s bias policy defined bias incidents as “expressions against a person or group because of the person’s or group’s age, color, disability, gender (including pregnancy), gender identity, gender expression, genetic information, national origin, political affiliation, race, religion, sexual orientation, veteran status, or any other basis protected by law.”
Bias response teams “actively chill student speech through fear and intimidation of being reported anytime and anywhere,” the petition said. “They normalize the weaponization of administrative policies to go after peers who express opposing ideas and create a campus climate of self-censorship.”
The presence of police officers on the bias response teams demonstrated the teams were “a literal speech police.”
In September 2021, Judge Michael Urbanski of the U.S. District Court for the Western District of Virginia refused to block the policy allowing the bias response teams.
Judge Urbanski, who was appointed in 2011 by President Barack Obama, ruled that Speech First lacked legal standing to challenge the policy because it had suffered no injuries. The judge also found the claim was unlikely to succeed and denied a request to block the policy.
A split three-judge panel of the U.S. Court of Appeals for the Fourth Circuit affirmed the judge’s ruling.
Joined by Judge Albert Diaz, Judge Diana Motz wrote that Speech First’s theories about why the bias policy runs afoul of the First Amendment “suffer from the same fundamental problem: Speech First has not shown that the Bias Policy credibly threatens injury to the organization’s members. And for this reason, Speech First’s members have not demonstrated the injury in fact necessary to establish standing.”
Judge Motz was appointed in 1994 by President Bill Clinton; Judge Diaz was appointed in 2010 by President Barack Obama.
In a dissenting opinion, Judge Harvie Wilkinson gave a hypothetical example of a 19-year-old female sophomore participating in a classroom talk. Judge Wilkinson was appointed in 1984 by President Ronald Reagan.
‘What Would a Reasonable Student Do?’
“Faced with these circumstances, what would a reasonable student do? Speak up and risk an anonymous report? Or keep her head down, sit silently, and avoid the potential fallout? A student in this situation will almost always choose the latter. And this is how Virginia Tech objectively chills speech.”The Supreme Court granted the petition for certiorari, or review, in Speech First Inc. v. Sands, in an unsigned order on March 4. The court did not explain its decision beyond a one-sentence statement. At least four of the nine justices must vote to grant the petition in order for it to move forward.
At the same time, the court granted judgment in the case without holding oral arguments. Lawyers call this process GVR, which stands for grant, vacate, and remand.
The Supreme Court stipulated that the “judgment with respect to the Bias Policy claims is vacated, and the case is remanded to the U.S. Court of Appeals for the Fourth Circuit with instructions to dismiss those claims as moot.”
Justice Ketanji Brown Jackson wrote that she would deny the petition because “the party seeking vacatur has not established equitable entitlement to that remedy.” Vacatur is a court announcement declaring that something is canceled or annulled.
Justice Clarence Thomas wrote that Speech First’s lawsuit “raises an important question affecting universities nationwide.” The group estimates that more than 450 universities have similar bias-reporting systems, he noted.
“The scope of Virginia Tech’s policy combined with how it is enforced suggests that the university is stifling students’ speech,” Justice Thomas wrote.
Until the Supreme Court gets involved, “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.”
Justice Samuel Alito joined in Justice Thomas’s dissenting opinion.
