Justice Thomas argues college bias-response teams may chill speech in dissent to cert denial
U.S. Supreme Court Justice Clarence Thomas poses for an official portrait in the Supreme Court building Oct. 7, 2022, in Washington, D.C. (Photo by Alex Wong/Getty Images)
The U.S. Supreme Court on Monday declined to hear a First Amendment challenge to Indiana University's use of bias-response teams.
Justice Clarence Thomas and Justice Samuel Alito dissented from the cert denial, but only Thomas explained his reasoning.
Thomas argued that college bias-response teams may chill speech because they may cause students to self-censor. He said the Supreme Court should have accepted the case to resolve a circuit split on whether students have standing to challenge such policies because of their chilling effect.
More than 450 colleges and universities have bias-response teams. Indiana University’s team “is emblematic of the genre,” Thomas said.
The university allows students to file bias complaints anonymously. The teams can respond by asking accused students to discuss their behavior at a meeting; by reporting accused students to support services; or by considering whether accused students potentially violated school policy or criminal law, and if so, referring such students to campus offices with disciplinary power.
The free speech organization Speech First challenged Indiana University’s use of the teams on behalf of five students who hold views that are unpopular on campus. The group sought a preliminary injunction, which was denied as a result of a 2020 decision by the 7th U.S. Circuit Court of Appeals at Chicago. The appeals court in the prior case held that a bias-response team at the University of Illinois at Urbana-Champaign had a limited reach, which meant that challengers did not suffer an injury required for standing.
Thomas said the 7th Circuit’s approach is “very likely wrong” because its “emphasis on the formal limits of a bias response team’s power seems hard to square with this court’s framework.”
The case is Speech First v. Whitten.
Hat tip to Courthouse News Service and SCOTUSblog, which had coverage of the cert denial.
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