On Monday, the Supreme Court declined to review a case questioning whether bias response teams on college campuses infringe upon students’ First Amendment rights—a decision met with sharp criticism from Justices Clarence Thomas and Samuel Alito.
In a dissenting opinion, noted The Daily Caller, Thomas expressed concern over the widespread use of these teams, which now operate at more than 450 colleges and universities across the country. He warned that by refusing to intervene, the Court is allowing students’ free speech protections to vary depending on jurisdiction.
“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. “The Court’s refusal to intervene now leaves students 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.”
The case, Speech First, Inc. v. Pamela Whitten, revolves around Indiana University’s bias response team, which enables students to report perceived incidents of bias to school administrators. Speech First, a free speech advocacy organization, argued that such policies create a chilling effect, discouraging students from expressing viewpoints that might be deemed controversial, such as opposition to gender ideology or advocacy for stricter immigration policies.
Speech First further asserted that these bias response teams are structured to operate at the very edge of constitutionality—a claim that has led to divided opinions in lower courts. The organization also noted that the Supreme Court has not directly addressed the free speech rights of college students since 2010, during which time, it argued, those rights have been increasingly undermined.
This is not the first time Thomas has voiced concern over campus speech policies. Last year, he dissented when the Court declined to hear a similar case involving Virginia Tech’s bias response team. Although the justices overturned a lower court ruling in that case, they stopped short of addressing the broader constitutional implications.
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