The Supreme Court soon will be asked yet again to teach college administrators that they may not deny the First Amendment freedom of speech to students who voice unpopular opinions. The justices ought to accept the petition, with alacrity.
Plaintiffs are preparing to ask the court to overturn an awful May 31 decision by the 4th U.S. Circuit Court of Appeals in Speech First, Inc. v. Sands. The petitioners say, with overwhelming justification, that a system using a “bias-response team” at Virginia Tech is an unconstitutional effort to deter speech the university dislikes. The effect of this team is especially onerous in conjunction with a policy that prohibits students from distributing leaflets or gathering signatures for petitions except at tables manned by staff from organizations recognized by the university.
Three other circuit courts of appeal have already ruled that bias-response teams at other universities are unconstitutional. The 4th Circuit, in a 2-1 split decision, is the outlier.
A bias-response team kicks into action any time any anonymous person complains that any speech by a student in class debate, in private, in off-campus discussions, or on social media are “expressions against a person or group” based on any of 13 issues, from race and religion to political affiliations. If someone says, “I don’t like Democrats,” someone else can report it as a “bias incident.”
A male student fell foul of a bias team because he said female students in a snowball fight were “not athletic.” Another told a joke about a former men's Olympic decathlon champion, referring to Bruce Jenner rather than Caitlyn Jenner, which is the athlete's new name.
The university argues it is promoting civility and that the bias-response team merely investigates and then refers abuses to other entities for adjudication and punishment. These are various forms of public shaming. The dean of students also keeps a record of all complaints.
Bias-response teams are intimidating because each of the members represents a body that can dole out punishments. These include representatives of the dean of students, the Office for Equity and Accessibility, the Office for Inclusion and Diversity, and even the Virginia Tech Police Department. The teams report speech they don't like to an office that monitors violations of federal Title IX, which forbids sex discrimination in education.
In other words, Virginia Tech's policy and anti-bias teams combine in a grotesque regime censorship.
In a blistering and eloquent dissent, Judge Harvie Wilkinson agreed with the 11th U.S. Circuit Court of Appeals “that the average college student would be intimidated, and quite possibly silenced, by the policy.” With the dean and even the police sitting in judgment, even a student of “ordinary firmness,” he wrote, “would be deterred from exercising her First Amendment rights.”
“Consider a 19-year-old sophomore at Virginia Tech sitting in a favorite class, one involving the role that race, ethnicity, and gender play in contemporary American politics,” Wilkinson wrote. “During a lively class discussion, an interesting but controversial topic comes up. She considers raising her hand to add her thoughts to this fascinating debate, but she hesitates. … 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.”
Wilkinson followed this with a master class in First Amendment law, precedent, and moral reasoning. He wrote that “telling students ‘You should stop saying biased things or else we might need to reeducate you’ is no benevolent attempt at persuasion.”
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Years ago, Chief Justice John Roberts famously wrote that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Using that logic, Roberts led the court last month in overturning noxious affirmative action policies that discriminated massively against Asian Americans.
Likewise, the way to stop discrimination on the basis of speech is to stop discriminating on the basis of speech. University officials who don’t heed this lesson, tin-pot dictators that they are, should be slapped down by the Supreme Court.