The Supreme Court starts work on its 2024 term on Tuesday with the “long conference,” in which the justices will consider the backlog of petitions for certiorari that have been piling up during the summer recess. The Court has yet to fill its docket, and there are a bunch of compelling cases to consider. I’m doubtful that they’ll take up the first challenge to Donald Trump’s eligibility for office, but there are several free-speech, Fourth Amendment, and death-penalty petitions, and another challenge to the Employment Division v. Smith standard for religious liberty. Perhaps the hottest petitions arise from the Texas and Florida laws regulating social-media content moderation, which produced conflicting decisions from the Fifth and Eleventh Circuits and a recommendation from the solicitor general that the Court take the case.
One case that isn’t quite ready to be considered Tuesday, but could intrigue the justices, is Speech First, Inc. v. Sands (No. 23-156), which challenges campus speech codes. The case comes from a divided panel decision of the Fourth Circuit, which rejected challenges to two Virginia Tech campus speech policies. The policies were upheld in an opinion by Senior Judge Diana Gribbon Motz, a Clinton appointee, joined by Chief Judge Albert Diaz, an Obama appointee, over a strong dissent by Judge J. Harvie Wilkinson III, a Reagan appointee long known as a leading voice on the bench on free-speech issues. The decision openly conflicts with rulings from the Fifth, Sixth, and Eleventh Circuits, while siding with a similar decision in the Seventh Circuit — all of which were brought by Speech First, a membership organization for college students challenging campus speech policies nationwide. A battery of amicus briefs were filed in mid-September asking the Court to take the case; the university’s response is due October 18.
At first glance, it might seem that Speech First v. Sands is a poor vehicle to challenge campus speech codes. Speech First challenged two Virginia Tech policies before the Fourth Circuit, but focuses its petition on one of those: the campus Bias Intervention and Response Team Policy, which creates a panel of university administrators (the BIRT, or sometimes BRT, for bias response team), which hears complaints about alleged bias incidents but lacks the power to subject students to discipline or even compel them to appear. Those facts were enough for the Fourth Circuit to conclude that there was no harm here: Nobody was threatened with punishment, “nothing about the BIRT process would ever appear on a student’s academic transcript or disciplinary record,” and “the First Amendment does not stand in the way of modest efforts to encourage civility on college campuses.” Maybe Speech First should have waited to bring the Court a case with a more coercive or obviously biased policy?
But as Judge Wilkerson detailed, the majority wasn’t looking closely enough at the facts. Sure, BIRT has no disciplinary power, but it can and does refer reports to institutions that do, so its process can have significant consequences. “Even if the accused student thinks that BIRT cannot punish him, he may fear that BIRT will refer him to the office of Title IX which may well be hostile to the student’s point of view. Then will he not worry that the office of Title IX may discipline him for his alleged bias? It matters not that BIRT cannot dole out punishment if it can simply refer the case to another office that can.”
Sure, there is not an official, public record, but “there is no dispute that a record of the meeting will be kept on permanent file within the Dean of Students Office’s case management system” — a literal permanent record. And as we all know, both rules and norms can change over time about going back to judge things, once recorded. Moreover, the sheer number of authority figures involved in the committee meant that a student being summoned would be known by figures in many parts of the college.
Sure, students were not mandated to appear, only “invited.” But “does the majority really believe this invite is no different from students inviting one another to
drop by down the hall for a Friday night pizza? No! This is an invitation from the Dean to the student to come to the Dean’s office, not for tea or coffee, but for the express purpose of discussing the student’s speech. There is an imbalance here. Dean versus student. State versus the individual.”
In Wilkerson’s view, that amply justifies looking at what the BIRT policy actually does, and how it affects students living under it:
The Bias Policy defines 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.” . . . The University claims to need this policy because “[b]ias-related incidents often represent a conflict of competing and opposing values,” and conventional solutions “will rarely go far enough to do the adaptive work needed to resolve[] gaps between values, beliefs, and behavior.” The “Bias Intervention and Response Team” is thus meant to be “both proactive and responsive” in addressing the “challenges presented in a community where inclusion and dissent exist in a way that often results in marginalization, isolation, and loneliness.” . . . This garbled declaration reads like a mission statement of a committee dedicated to rooting out dissent. A student whose views fail to align with campus orthodoxy would think twice before speaking under such a menacing regime.
Vague rules are combined with a completely open-ended process, in which anyone could make an accusation and remain anonymous:
BIRT’s preset list of nineteen potential bias offenses includes “‘Comment in Class or Assignment,” “Comment in Person,” “Comment in Writing or on Internet,” “Comment via Email/Text,” “Comment via Phone/Voicemail,” and “Written Slur.” . . . Virginia Tech establishes a regime of comprehensive surveillance. The University enthusiastically encourages its students to report a bias incident even if they are “unsure” that an incident qualifies as biased. . . . As a “student, if you hear or see something that feels like a bias incident, statement, or expression, we encourage you to make a report. In short, if you see something, say something!” Where students are urged to report on one another, mutual suspicions fester, as any society bereft of basic freedoms can attest.”
With what result? “The number of bias reports nearly doubled from 2017 to 2018. . . . This trend either shows Virginia Tech’s community is growing more biased—an odd result given the University’s efforts to ‘eliminate’ such problems—or it reveals that members of the community are increasingly exploiting the policy’s uncertain language.”
As the Foundation for Individual Rights and Expression (FIRE) pointed out in an amicus brief asking the Court to take the case, there are “231 BRTs at public and private institutions across the country that have a combined enrollment of at least 2.84 million students.” And “of these, 143 were public universities” governed by the First Amendment. While Virginia Tech has backed off the policy since the suit was filed, FIRE also notes that “time and time again, [it] has seen universities revise unconstitutional policies, only to bring them back when there is employee or state government turnover.” Given the widespread use of such policies and the open circuit split on their legality, it would seem a fit time for the Court to get involved.
