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Speech First, Inc. v. Sands: the constitutionality of bias intervention and response teams and policies on college campuses

1/8/24

By: Christopher M. Lewis

Do bias intervention and response teams and policies on college campuses violate students First Amendment rights to the freedom of speech? That is the question posed in Speech First, Inc.’s currently pending petition for writ of certiorari to the Supreme Court of the United States from the United States Court of Appeals for the Fourth Circuit’s order denying Speech First, Inc.’s motion for preliminary injunction against Timothy Sands, the President of Virginia Tech. Speech First, Inc. v. Sands, 69 F.4th 184, 188 (4th Cir. 2023).  

Many colleges across the country have bias response teams. Bias response teams are campus committees established to receive and respond to reports of bias, commonly referred to as “bias incidents.” The teams typically consist of university administrative staff, faculty, law enforcement officers, and students. The overarching goal of these initiatives is to create an environment of inclusivity and tolerance on college campuses and respond to bias incidents. Bias response teams may respond to these reports by conducting outreach to the parties involved and, in some cases, referring the report to other administrative offices on a college campus. Speech First, Inc. is opposed to bias response teams and policies as it believes these initiatives violate students’ First Amendment right to the freedom of speech.  

Speech First, Inc. is an organization that is committed to combatting restrictions on free speech at colleges and universities across the United States. It has filed lawsuits against the University of Michigan, the University of Texas, the University of Illinois, Iowa State University, the University of Central Florida, Oklahoma State University, and Virgina Tech. These lawsuits challenge whether each institution’s bias response team objectively chill student speech.  

In the currently pending case, Speech First, Inc. filed suit against Timothy Sands in the United States District Court for the Western District of Virginia alleging that a Virginia Tech policy, the Bias Intervention and Response Team Policy, violated the First Amendment rights of Virginia Tech students. The United States District Court for the Western District of Virginia held that Speech First, Inc. lacked standing to challenge the Bias Intervention and Response Team Policy because its members (who are students at Virginia Tech) had suffered no injury in fact. Speech First, Inc. appealed to the United States Court of Appeals for the Fourth Circuit which affirmed the district court’s holdings.  

The Bias Policy at issue 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.” It enabled complaining members of the Virginia Tech community to file reports of bias incidents through various online platforms to the Bias Intervention and Response Team which consisted of a panel of university administrators including representatives from the Fraternity and Sorority Life Office, the Services for Students with Disabilities, the Virginia Tech Police Department, and the Housing and Residence Life Office. Although the district court found that the Bias Intervention and Response Team “lacked authority to discipline or otherwise punish students for anything,” Speech First, Inc. argues that the Bias Policy caused its members to “censor their speech,” triggering First Amendment protections.  

On its petition for writ of certiorari, Speech First, Inc. notes that the Fifth, Sixth, and Eleventh Circuits hold that bias-response teams objectively chill students’ speech while the Fourth and Seventh Circuits hold that they do not. The petition seeks to have the Supreme Court of the United States resolve the five-circuit split as to whether bias response teams and policies on college campuses violate students’ First Amendment rights. If certiorari is granted, then the manner in which college campuses are permitted to address and respond to alleged bias incidents, specifically in the form of bias responses teams, could be greatly impacted. 

For more information, please contact Christopher Lewis at chris.lewis@fmglaw.com or your local FMG attorney.