Rarely does a fortnight pass without me being discouraged by yet another refusal by the Supreme Court to grant a hearing for some case that I think is of pressing importance. The justices did it again last week, with collegiate free speech rights this time the victim of the court’s undue reticence.
The Washington Examiner editorialized on the case last summer, and the great columnist George Will lamented the court’s refusal last weekend to consider the case’s merits. The issue really did seem ripe for review, which makes it a bit baffling that the high court decided to punt it away.
At issue is a policy, now modified but still able to be reinstated, whereby Virginia Tech University created a “Bias Intervention and Response Team” encouraging anonymous student complaints about speech or “expressions against a person or group” that offend the complainer’s sensibilities. All complaints are kept on permanent record, and while the “Response Team” itself cannot dole out penalties, each of its members — including the university police department — represents an entity that can punish “offenders,” sometimes seriously.
Yet bias teams have habits of restricting even unremarkable speech: One male student was chastised because he said female students in a snowball fight were “not athletic.”
Will called Virginia Tech’s speech-reporting system a “suffocatingly comprehensive policy” and this newspaper editorialized that it constitutes “a grotesque regime of censorship.” In dissent from the 4th U.S. Circuit Court of Appeals ruling last year that allowed the policy to stand, Judge Harvie Wilkinson wrote “that the average college student would be intimidated, and quite possibly silenced, by the policy.”
There is no way, of course, that the Supreme Court can grant all 5,000-6,000 certiorari petitions it receives each year, but its docket of granted cases has declined precipitously. In its 2010 term, it granted cert for 165 cases, but in its 2022 term, it accepted only 60. Even so, the Virginia Tech case, known as Speech First v. Sands, certainly seemed to meet the court’s two key criteria. First, it involves a major issue of constitutionally guaranteed rights, and second, there is a “circuit split” on the main legal issue, meaning that some appeals courts ruled one way while one or more ruled another. In order to avoid having different constitutional directives applying in different regions of the country, the Supreme Court tends to provide a uniform, conclusive, national determination of how the Constitution actually should apply.
In this case, though, most of the justices decided to declare Virginia Tech’s case “moot” (meaning no longer legally actionable) because Virginia Tech at least temporarily modified its bias-response policy. The problem here is that the court effectively invites colleges to push to see how restrictive they can be, and then avoid constitutional rebukes merely by changing some small part of their policy. This way, the colleges can expect this small change to lead the court to send the whole situation back to square one and force yet another lawsuit to challenge the new policy.
In dissent from the rest of the court’s refusal to hear the case, Justices Clarence Thomas and Samuel Alito argued, citing adequate precedent, that universities should not be able to make a court moot by gaming the system this way. They noted that the plaintiff here, an organization called Speech First, “estimates that over 450 universities have similar bias-reporting scheme,” and that the free speech issues involved beg for resolution.
“This petition presents a high-stakes issue for our Nation’s system of higher education,” Thomas wrote. “Until we resolve it, there will be a patchwork of First Amendment rights on college campuses.”
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Thomas wrote that when a regime claiming to root out bias has the scope of Virginia Tech’s, then “From the moment a student enters the university until graduation, he is under the university’s surveillance.”
The Supreme Court should not duck an issue where Big Brotherism seems so unconstitutionally prevalent.
