Amicus Brief: Speech First v. Whitten

Indiana University has unfortunately joined many other schools in adopting a “bias incidents” policy that is designed to deter, suppress, and punish disfavored and controversial speech. The policy broadly defines a “bias incident” as “any conduct, speech, or expression, motivated in whole or in part by bias or prejudice meant to intimidate, demean, mock, degrade, marginalize, or threaten individuals or groups based on that individual or group’s actual or perceived identities.” The policy does not define “bias” or any other key term, but it does cover pure speech, including emails, text messages, phone calls, social media comments, and other “verbal” offenses. Students can submit anonymous reports accusing their classmates of “biased” speech, and those reports are referred to the university’s “Bias Response” team, a collection of university officials who “educate” reported students about their allegedly problematic speech, maintain records of the allegations, and “determine if further investigation is required for potential violations of university policy and/or criminal law.” The Fifth Circuit described a similar bias response team as “the clenched fist in the velvet glove of student speech regulation.” The Sixth and Eleventh Circuits have ruled along the same lines.

Speech First asked for a preliminary injunction against IU’s bias response team. Speech First acknowledged, however, that its position was foreclosed by an earlier Seventh Circuit decision from 2020. That decision held that students lacked standing to challenge the University of Illinois’s bias response team because, like Indiana’s, Illinois’s team does not directly punish students or have inherent disciplinary authority. After the district court denied the preliminary injunction, Speech First asked the Seventh Circuit to summarily affirm so it could bring the case to the Supreme Court. The Seventh Circuit obliged and Speech First filed a cert petition, matching one it filed last term involving Virginia Tech’s bias response team (which MI supported with an amicus brief).

Just before Speech First filed that petition, however, Virginia Tech changed its policy, so the Supreme Court vacated the Fourth Circuit’s decision—which as here had found a lack of standing—as moot. Justices Thomas and Alito, however, would have granted certiorari to resolve the circuit split and because the “scope of Virginia Tech’s policy combined with how it is enforced suggests that the university is stifling students’ speech.”

The Manhattan Institute has now joined Alliance Defending Freedom on another amicus brief supporting a challenge to a collegiate “bias response team.” We give examples of university policies that chill speech and discriminate based on viewpoint. The suppression of academic speech has been the stepping-stone for authoritarian regimes, so the Supreme Court ought to step in, resolve the circuit split, and prevent further restrictions on the free exchange of ideas.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Tim Rosenberger is a legal fellow at the Manhattan Institute.

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