“The question came to the court in a case filed against Virginia Tech by Speech First, a group that describes its mission as putting ‘colleges and universities on notice that shutting down unwanted speech will no longer be tolerated.’”

Why this is important: Earlier this month, the U.S. Supreme Court set aside a challenge to whether “bias-response team policies” chill students’ speech on university campuses. In Speech First v. Sands, the Supreme Court remanded the case to the U.S. Court of Appeals for the Fourth Circuit for dismissal as moot after Virginia Tech changed its challenged policy.

In 2019, Virginia Tech created its “Bias Intervention and Response Team,” which was responsible for governing the university’s response to reports of potential bias that could violate the university’s code of conduct and other policies. Virginia Tech’s bias-response team would investigate reports of bias and request a meeting with the potential offending student to discuss the speech or conduct at issue. Speech First sought to enjoin Virginia Tech, on behalf of anonymous students, from enforcing its bias-response policy, among other policies that Speech First felt were overbroad or vague. In opposition, Virginia Tech asserted that the litigants lacked standing to bring this action in place of the students. The university further argued that its revisions to the policy at issue, which made it applicable to employees rather than students, rendered the litigation moot.

In its adjudication of the matter, the district court held that the case was not moot because Virginia Tech voluntarily amended its policies and could reinstate the policies at any time. Notwithstanding, the district court found that Speech First lacked standing to challenge the policies. The Fourth Circuit affirmed the lower court's ruling. (In his dissent, in addition to contesting the court's decision with respect to standing, Judge J. Harvie Wilkinson claimed the bias-response policies constituted viewpoint discrimination.) 

Speech First sought certiorari before the U.S. Supreme Court. The Supreme Court granted Speech First’s petition while vacating the judgment with respect to the bias-response team’s policy. The Supreme Court ordered that the case be remanded back to the Fourth Circuit for dismissal of the bias-response policy claims as moot because of Virginia Tech’s changes to the policy. In a detailed dissent, Justice Thomas, joined by Justice Alito, opined that this case raised important First Amendment questions affecting hundreds of universities nationwide and claimed it was a close question as to whether students are self-censoring because they fear the consequences of bias-response team actions. 

While the Supreme Court remanded this case to the Fourth Circuit to be dismissed as moot, there is a strong likelihood more cases will arise that seek to challenge bias-response policies. As the district court noted, Speech First has made the same arguments challenging other university’s bias-response policies. See Speech First v. Fenves, 979 F.3d 319 (5th Cir. 2020) (challenging University of Texas at Austin’s “Hate and Bias Incidents” policy); Speech First v. Schlissel, 939 F. 3d 756 (6th Cir. 2020) (challenging Michigan University’s policy on prohibiting bullying and harassment); Speech First v. Cartwright, 32 F.4th 1110 (11th Cir. 2022) (challenging the University of Central Florida’s discriminatory-harassment policy). While this particular case was dismissed as moot, U.S. circuit courts are split 3-2 on whether a bias-response team and its policies chill students’ speech and violate the First Amendment. --- Isaiah C. Robinson

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