SCOTUS Turns Away College Bias Response Team Challenge; Thomas, Alito Dissent
On Monday, the U.S. Supreme Court chose not to review whether college bias response teams are constitutional.
Despite differing views from conservative justices Clarence Thomas and Samuel Alito, the court declined to hear a case brought by Speech First, an organization focused on defending students’ First Amendment rights. The lawsuit targeted officials at Indiana University.
Speech First has a history of challenging schools across the nation over their use of bias response teams — systems that collect anonymous reports of bias and sometimes refer students for disciplinary action, according to The Hill.
Just last year, Speech First took legal action against Virginia Tech for similar reasons, but the Supreme Court also rejected that case. Eventually, Virginia Tech disbanded its bias response team.
“Given the number of schools with bias response teams, this Court eventually will need to resolve the split over a student’s right to challenge such programs,” Thomas wrote on Monday.
Thomas also echoed his previous concerns when the court dismissed the Virginia Tech case, warning that by refusing to intervene now, students remain subject to “a ‘patchwork of First Amendment rights,’ with a student’s ability to challenge his university’s bias response policies varying depending on accidents of geography.”
Speech First had hoped the Indiana case would give the court a chance to settle the matter once and for all. The organization argued that the decision worsened a growing divide among lower courts over whether students have the right to sue when bias response teams suppress speech in violation of the First Amendment.
“Precisely because speech codes are often struck down, universities have looked for subtler, more sophisticated ways to chill disfavored speech. Enter the bias-response team,” the group explained in its petition.
“Instead of outright banning biased speech, these teams deter it by threatening students with adverse consequences. They also burden it by imposing a series of administrative and other costs on students who commit ‘bias incidents,’” the petition continued.
Attorneys representing Indiana University officials, who referred to Speech First as a “frequent flier of lawsuits against higher-education institutions,” asked the court to dismiss the case.
They argued that “the case is thus not a remotely serviceable vehicle for reaching Speech First’s purportedly split-closing question. No such split exists, and this appeal would lead nowhere anyway,” according to court documents.
This decision comes at a time when the Supreme Court has recently made waves with high-profile rulings.
Just last week, the court declined to revisit a previous ruling that upheld buffer zones around abortion clinics — a decision opposed by two of the court’s conservative justices.
In two orders released Monday, the court rejected cases challenging local laws in Carbondale, Illinois, and Englewood, New Jersey, which restrict anti-abortion activists from “sidewalk counseling” individuals entering abortion clinics.
Once again, Justices Clarence Thomas and Samuel Alito dissented, indicating they would have agreed to hear the cases. However, four justices are required to move a case forward, The Hill reported.
The lower courts upheld both ordinances based on the Supreme Court’s 2000 ruling in Hill v. Colorado, which concluded that a similar law in Colorado did not violate the First Amendment.
Since that time, anti-abortion groups have repeatedly sought to overturn the Hill precedent. In fact, some conservative justices have criticized the ruling, particularly in the court’s opinion that eliminated federal protections for abortion rights. This emboldened activists who hoped the court might reconsider.
“Hill has been seriously undermined, if not completely eroded, and our refusal to provide clarity is an abdication of our judicial duty,” Thomas wrote.
In the petition challenging Carbondale’s ordinance, conservative attorney Paul Clement — a former solicitor general — argued that “Hill was wrong the day it was decided, and the case for overruling it has only strengthened ever since.”
Clement represented Coalition Life, an anti-abortion group known for its “sidewalk counseling” activities, including in Carbondale. The organization was backed in its challenge by 15 Republican attorneys general, Alliance Defending Freedom, and several other anti-abortion groups.
Carbondale asked the court to reject the appeal, noting that the ordinance had already been struck down.
“Petitioner wants to fast-track a request that this Court overturn Hill just as it overturned Roe v. Wade. This Court should deny that request. This case is a far cry from an ideal—or even passable—vehicle for revisiting Hill,” wrote attorney Neal Katyal, who represented the city and previously served as acting solicitor general under President Barack Obama.
A similar dispute emerged in Englewood, where a resident named Jeryl Turco challenged a 2014 local ordinance that created a buffer zone around an abortion clinic. Turco argued that the law, which aimed to curb aggressive protest tactics by a group called Bread of Life, unfairly restricted her right to engage in peaceful sidewalk counseling.
Turco, who is not affiliated with Bread of Life, said the ordinance violated her First Amendment rights by interfering with her ability to counsel people outside the clinic in a lawful manner.
She was represented by Jay Sekulow, lead counsel at the conservative American Center for Law and Justice and one of former President Trump’s attorneys during his first impeachment trial.
Englewood urged the court to dismiss the case, emphasizing that it “is extremely fact-sensitive and involves material credibility issues that the District Court has resolved. Also, the facts of this case are unique because of Petitioner’s method of sidewalk counseling.”