Speech First, Inc. v. Whitten

Bias response teams (BRTs) have proliferated at college and universities in recent years. Although they vary in name and structure from campus to campus, they all tend to chill student speech, across the political spectrum. Indiana University’s BRT system, called “Bias Response & Education,” explicitly targets protected expression: “speech[] or expression motivated . . . 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.”

Indiana’s BRT was challenged by Speech First, an organization that challenges college and university policies that threaten students’ First Amendment rights. Indiana, however, is located within the jurisdiction of the Seventh Circuit Court of Appeals, and that court has held that BRTs cannot be challenged in court. That’s because many BRTs do not have formal authority to punish students–they can merely “invite” students to discussions about their speech and then “refer” certain cases to law enforcement for potential investigation. The Seventh Circuit therefore affirmed the trial court’s decision to dismiss the case. Speech First has petitioned the Supreme Court of the United States to review and reverse that decision.

FIRE is supporting Speech First’s petition with a friend-of-the-court brief, urging the Supreme Court to take the case. FIRE’s brief highlights its "Bias Response Team Report 2017" to demonstrate how commonplace Bias Response Teams (BRTs) are in higher education—affecting 2.84 million students enrolled at 231 public and private institutions across the country. In almost all cases, they are staffed by administrators without First Amendment training and rely on students subjectively perceiving “bias” and reporting it. Worse, some state and local governments have considered adopting the BRT model to all speech, whether on or off campus.

The Fifth, Sixth, and Eleventh Circuits have held that BRTs like Indiana’s chill speech, an injury that gives students standing to challenge the constitutionality of these policies. Even if BRTs can’t punish students, their ability to “refer” cases to authorities who can creates a reasonable expectation that when students report “biased” speech, BRTs will do something about that speech. That expectation unconstitutionally chills speech both on and off campus.