Supreme Court Declines to Rule on College Bias Response Teams, Raising Concerns About “Patchwork” Free Speech Protections
In a decision that has significant implications for campus free speech across America, the U.S. Supreme Court has declined to hear a case challenging the constitutionality of college bias response teams, leaving unresolved questions about these increasingly common but controversial campus institutions. The case, brought by the free speech advocacy group Speech First against Indiana University, sought to determine whether these administrative bodies violate students’ First Amendment rights. The Court’s refusal to take up the matter leaves in place a divided legal landscape that conservative Justices Clarence Thomas and Samuel Alito warned could create a “patchwork” of inconsistent First Amendment protections for college students nationwide.
The Case and Its Constitutional Stakes
The petition denied by the Supreme Court centered on Indiana University’s bias response system, which allows for anonymous reporting of incidents deemed biased or discriminatory, followed by potential investigation and action by university officials. Speech First, a national organization dedicated to protecting free speech rights on college campuses, argued that such systems create an impermissible “chilling effect” on protected expression by intimidating students into self-censoring to avoid being reported.
“These bias response teams operate as a parallel disciplinary apparatus that targets protected speech,” explained Cherise Trump (no relation to the former president), executive director of Speech First. “Students reported to these teams can face meetings with administrators, mandatory ‘educational’ interventions, and potential formal discipline—all for expression that would be fully protected off campus.”
The case raised fundamental questions about the boundaries between a university’s interest in fostering an inclusive educational environment and students’ constitutional right to free expression. The petition asked the Court to resolve a growing split among federal circuit courts on whether students have standing to challenge such programs before they are actually disciplined—essentially, whether the fear of being reported is itself a sufficiently concrete injury to give students legal standing.
By declining to hear the case, the Supreme Court leaves in place differing standards across the country. In some federal circuits, students can challenge bias response teams before facing discipline, while in others, they must wait until after they have been subjected to university action—a situation that free speech advocates argue allows potentially unconstitutional systems to continue operating without judicial review.
The Dissenting Justices: Thomas and Alito Sound the Alarm
The Court’s decision not to hear the case prompted a strongly worded dissent from Justices Thomas and Alito, who argued that the Court was abdicating its responsibility to protect fundamental constitutional rights and ensure their uniform application nationwide.
“The Court’s refusal to resolve this important First Amendment question will leave students subject to a patchwork of protections that vary depending on where they happen to attend school,” wrote Justice Thomas in his dissent. “Such inconsistency is especially troubling where, as here, core constitutional freedoms are at stake.”
Justice Alito joined Thomas’s dissent, adding his concern that bias response teams represent “a growing threat to free expression on college campuses” that demands the Court’s attention. Their joint dissent signals significant concern from the Court’s conservative wing about the potential for these university programs to restrict speech that might be controversial or offensive but remains constitutionally protected.
The dissent also highlighted the justices’ view that lower courts have applied inconsistent standards in evaluating when students can challenge such programs, creating legal uncertainty that the Supreme Court is uniquely positioned to resolve. “When circuit courts apply different standards to the same constitutional question, this Court has a duty to provide clarity,” Thomas wrote.
Bias Response Teams: Evolution and Controversy
To understand the constitutional debate surrounding bias response teams, it’s necessary to examine their development and current operation across American higher education. These administrative bodies began emerging on campuses in the early 2000s, growing significantly in number and scope following highly publicized incidents of racial tension and discrimination at universities nationwide.
According to a 2017 survey by the Foundation for Individual Rights and Expression (FIRE), more than 230 American colleges and universities had established some form of bias response system. That number has likely increased in subsequent years, though comprehensive current data is limited.
These teams typically consist of administrators from various campus departments, including student affairs, diversity offices, residential life, and sometimes campus police. They receive reports of alleged bias incidents—which can range from explicit discriminatory harassment to microaggressions or offensive speech—and determine appropriate responses, which may include educational interventions, mediation, counseling, or in some cases, disciplinary proceedings.
Supporters of these programs argue they represent a necessary tool for addressing discrimination and ensuring all students can participate fully in the educational environment without facing hostility based on their identity. Dr. Monica Johnson, Vice President for Diversity and Inclusion at a large public university, explained: “Bias response teams provide a structured way for universities to fulfill their legal and ethical obligations to maintain an educational environment free from discrimination while also identifying patterns of bias that might require broader institutional responses.”
Critics, however, see these bodies as potentially overreaching into protected expression. “The definition of ‘bias’ used by many of these teams is extraordinarily broad and subjective,” noted First Amendment attorney Robert Corn-Revere. “It often encompasses speech that might be offensive or hurtful but remains fully protected by the First Amendment. When universities create systems to investigate and potentially punish such speech, they send a message that certain viewpoints are disfavored—precisely what the First Amendment prohibits public institutions from doing.”
The Circuit Split: Why Legal Geography Matters
The Supreme Court’s refusal to hear the Indiana University case leaves in place a significant division among federal appellate courts regarding when students can challenge bias response teams—a “circuit split” that creates different First Amendment standards depending on where a university is located.
In the Sixth Circuit, which covers Michigan, Ohio, Kentucky, and Tennessee, the court ruled in Speech First v. Schlissel (2019) that students at the University of Michigan had standing to challenge that school’s bias response team before being disciplined, finding that the mere existence of the reporting system could reasonably chill protected speech.
Similarly, the Fifth Circuit (covering Texas, Louisiana, and Mississippi) ruled in Speech First v. Fenves (2020) that University of Texas students could challenge that school’s bias response system based on its potential chilling effect on expression.
However, in the Seventh Circuit (covering Illinois, Indiana, and Wisconsin), the court reached the opposite conclusion in the case that the Supreme Court just declined to review. In Speech First v. Whitten (2023), the court ruled that Indiana University students lacked standing to challenge the bias response team because they had not shown a sufficiently concrete injury—essentially requiring that students wait until after being reported and subjected to university action before they can bring legal challenges.
This geographical inconsistency creates a troubling situation where students at public universities in some states have greater ability to challenge potentially unconstitutional speech restrictions than students in other states, despite all being subject to the same First Amendment.
“What we’ve essentially created is a situation where your constitutional rights depend on your zip code,” said constitutional law professor Jonathan Turley of George Washington University. “A student at the University of Texas can challenge a bias response team that might be identical to one at Indiana University, which their counterpart there cannot challenge until after facing potential harm to their academic record or standing.”
Real-World Impacts: When Bias Response Teams Target Protected Speech
The debate over bias response teams is not merely theoretical. Numerous documented cases illustrate how these systems have been used to investigate constitutionally protected expression, raising concerns about their potential to suppress disfavored viewpoints.
At the University of Northern Colorado, a professor was investigated by the bias response team after encouraging students to debate controversial topics, including transgender issues. The professor was instructed to cease the discussions, despite their clear academic relevance and protection under principles of academic freedom.
At Appalachian State University, the bias response team investigated students for chalking pro-Trump messages on campus sidewalks in 2016, despite allowing similar chalking for other political viewpoints. The students were called to meetings with university administrators, though ultimately no formal discipline was imposed.
In another case at the University of Oregon, the bias response team investigated a student for making a joke about dating that was deemed offensive by another student. The reported student was required to meet with administrators and ultimately changed his major to avoid further interactions with the reporting student.
These and similar incidents have fueled concerns that bias response teams can become tools for enforcing ideological conformity rather than addressing genuine harassment or discrimination. Even when no formal discipline results, supporters of the Speech First position argue that the investigative process itself—being called to defend one’s speech before university authorities—can have a powerful deterrent effect on free expression.
“The process becomes the punishment,” explained Alex Morey, an attorney with FIRE. “Even if students are ultimately cleared of wrongdoing, they’ve been put through an intimidating process that sends a clear message: controversial speech will bring administrative scrutiny. That alone can effectively silence students, especially those with minority viewpoints on campus.”
The Technological Dimension: Anonymous Reporting in the Digital Age
The constitutional questions surrounding bias response teams have been complicated by technological developments that have transformed how these systems operate. Many universities now employ digital reporting platforms that allow for anonymous complaints, creating databases of alleged bias incidents that can be tracked and analyzed by administrators.
These digital systems have dramatically streamlined the reporting process, making it easier for students to report perceived bias without fear of backlash. However, they have also raised concerns about due process protections for the accused and the potential for abuse through false or malicious reports.
“Anonymous digital reporting fundamentally changes the dynamic,” explained Dr. Rebecca Katz, who studies technology and institutional governance at Stanford University. “While protecting reporting parties from retaliation is important, complete anonymity eliminates accountability for false accusations and can transform these systems into tools for targeting ideological opponents or settling personal grievances.”
The digital nature of these reporting systems also raises questions about data retention and privacy. Reports submitted to bias response teams often contain sensitive personal information about both the reporting and accused parties. Universities vary widely in their policies regarding how long such information is retained and who has access to it, creating potential long-term consequences for students accused of bias that extend far beyond any immediate administrative response.
Some universities have attempted to address these concerns by implementing safeguards, such as preliminary reviews to screen out reports targeting protected speech before any contact is made with accused students. However, critics argue that such safeguards are insufficient when the definitions of “bias” used by these teams remain vague and subjective.
The Academic Freedom Dimension: Faculty Concerns
While much of the debate has focused on student speech, bias response teams also raise significant concerns for faculty academic freedom. Professors in disciplines that regularly engage with controversial or sensitive topics—including law, political science, philosophy, literature, and history—have expressed fears that bias response systems could be used to target legitimate classroom content.
“I’ve had colleagues remove potentially controversial readings from their syllabi because they feared being reported to the bias response team,” said one professor of political science who requested anonymity due to concerns about professional repercussions. “The mere existence of these reporting systems has a tangible effect on what gets taught and discussed in the classroom, even before any actual complaints are filed.”
Faculty concerns about academic freedom in the context of bias response teams have been echoed by organizations including the American Association of University Professors (AAUP), which has cautioned that such systems must include robust protections for academic freedom to avoid undermining the educational mission of universities.
“The university’s core function—the pursuit of knowledge through free inquiry and debate—requires that faculty and students be able to explore controversial ideas without fear of administrative sanction,” explained Hans-Joerg Tiede, director of the AAUP’s Department of Academic Freedom, Tenure, and Governance. “Bias response teams that fail to incorporate clear exemptions for pedagogically relevant content risk serious damage to this essential function.”
Legal Standards and Constitutional Questions
The legal debate over bias response teams involves several interrelated constitutional doctrines that courts have developed to evaluate speech restrictions in educational settings.
Under the Supreme Court’s precedent in Tinker v. Des Moines Independent Community School District (1969), student expression can only be restricted if it “materially and substantially” disrupts school operations or invades the rights of others. However, subsequent cases have recognized that universities, unlike K-12 schools, are designed to be “marketplaces of ideas” where free expression receives particularly strong protection.
Courts evaluating bias response teams must also consider the “overbreadth” doctrine, which prohibits policies so broadly written that they encompass substantial protected speech alongside legitimately regulable expression. Many bias response teams define “bias” in ways that could potentially capture protected political, religious, or ideological expression, raising overbreadth concerns.
Additionally, challenges to these programs often invoke the “vagueness” doctrine, which requires that rules restricting speech be sufficiently clear that ordinary people can understand what expression is prohibited. Critics argue that terms like “bias” and “microaggression” often used in these policies fail this clarity requirement, leaving students guessing about what speech might trigger a report.
Perhaps most significantly, courts must determine whether the “chilling effect” created by bias response systems—even before any actual discipline is imposed—constitutes a sufficiently concrete injury to give students standing to challenge these programs. This was the core question in the Indiana University case that the Supreme Court declined to resolve.
Administrative Burdens and Resource Allocation
Beyond the constitutional questions, bias response teams raise practical concerns about administrative efficiency and resource allocation within universities. Maintaining these systems requires significant staff time and financial resources, which some critics argue could be better directed toward other educational priorities.
“Universities are creating elaborate bureaucracies to process reports that often involve protected speech or minor interpersonal conflicts that could be better addressed through direct dialogue,” said Frederick Hess, director of education policy studies at the American Enterprise Institute. “This diverts resources from core educational functions and teaches students to rely on administrative intervention rather than developing the skills to navigate disagreement and conflict themselves.”
Defenders of these programs counter that the resources allocated to bias response teams represent a necessary investment in maintaining inclusive educational environments where all students can learn effectively. They argue that unaddressed bias can significantly impact academic outcomes for targeted students, justifying the administrative expenses involved.
“When students experience persistent bias based on their identity, their academic performance suffers,” noted Dr. Beverly Daniel Tatum, a psychologist and former college president who has studied the effects of campus climate on educational outcomes. “Universities have both moral and legal obligations to address hostile environments, and bias response teams provide a structured approach to fulfilling these obligations.”
International Comparisons: Free Speech on Global Campuses
The American debate over bias response teams takes place within a broader global context, where different countries balance free expression and anti-discrimination concerns in varying ways. Comparing these approaches provides valuable perspective on the unique features of the American system.
In the United Kingdom, universities operate under the government’s Prevent duty, which requires them to report students showing signs of “radicalization”—a policy that has faced criticism for potentially targeting Muslim students and chilling political discourse. Simultaneously, UK hate speech laws impose stricter limits on expression than would be constitutionally permissible in the United States.
Canadian universities must navigate that country’s human rights codes, which prohibit discriminatory speech more broadly than U.S. law, while also respecting principles of academic freedom. The resulting balance typically allows for more administrative restriction of expression than would be permitted at American public universities.
By contrast, universities in countries like Germany operate within legal systems that combine strong protections for academic freedom with explicit prohibitions on certain forms of speech, particularly Holocaust denial and Nazi symbolism—restrictions that would be unconstitutional under U.S. First Amendment jurisprudence.
These international comparisons highlight the exceptional nature of American free speech protections, even in educational contexts. The U.S. constitutional framework generally prohibits public universities from restricting speech based on its viewpoint or content unless it falls within narrow categories like true threats or harassment—a standard that creates particular tension with bias response systems designed to address offensive but protected expression.
Potential Policy Solutions: Finding Balance
As universities and courts continue to navigate these complex issues in the absence of Supreme Court guidance, various stakeholders have proposed policy approaches aimed at balancing free expression with the goal of maintaining inclusive educational environments.
Some institutions have reformed their bias response systems to clarify that they address only unprotected conduct, not constitutionally protected speech. The University of Michigan, following litigation with Speech First, modified its bias response team to explicitly state that it would not contact students reported for constitutionally protected expression.
Other universities have implemented two-track systems that distinguish between reports alleging conduct that might violate law or policy (which can trigger investigations) and reports concerning protected expression (which are tracked for data purposes but do not result in contact with the speaker).
“The most promising approaches recognize that universities have valid interests in tracking patterns of bias to inform educational programming, while also acknowledging the constitutional limits on their authority to investigate or discipline protected speech,” explained Geoffrey Stone, a First Amendment scholar and former dean of the University of Chicago Law School.
Some institutions have moved away from the “bias response team” model entirely, instead emphasizing educational programs that promote respectful dialogue across differences without creating reporting systems that might chill protected expression. These approaches focus on developing students’ capacity for engaging with diverse perspectives rather than administrative enforcement of speech norms.
“Universities need to ask whether they’re teaching students skills for navigating a diverse democratic society or conditioning them to seek administrative intervention whenever they encounter views they find offensive,” said Greg Lukianoff, president of FIRE. “The former approach better serves both educational goals and First Amendment values.”
The Future of Campus Speech Policies
With the Supreme Court declining to provide national guidance on bias response teams, the legal and policy landscape surrounding these programs will likely continue to evolve through lower court decisions and institutional experimentation. Several trends may shape this evolution in the coming years.
First, the circuit split on standing to challenge bias response teams will likely persist or even widen as more cases work their way through the federal courts. This could eventually create sufficient legal confusion to prompt Supreme Court review in a future case, particularly if the split becomes more pronounced.
Second, state legislatures may increasingly enter the debate by passing laws that either restrict or mandate certain approaches to campus speech policies. Several states, including Florida, Texas, and Iowa, have already enacted legislation aimed at strengthening free speech protections on public university campuses, potentially limiting the operation of bias response teams in those states.
Third, technological developments will continue to shape how universities monitor and respond to campus climate issues. Advanced data analytics may allow institutions to identify patterns of bias without relying on individual reports, potentially reducing the chilling effect concerns associated with traditional bias response teams.
Finally, ongoing cultural and political polarization around issues of identity and expression will likely ensure that campus speech policies remain contentious. Universities will continue to face pressure from various constituencies—students, faculty, alumni, lawmakers, and the public—often pulling them in contradictory directions regarding how to balance free expression with concerns about inclusion and harm.
Conclusion: Constitutional Values in the Campus Context
The Supreme Court’s decision not to address the constitutionality of bias response teams leaves American higher education in a state of uncertainty regarding how to reconcile competing values of free expression and inclusive educational environments. This uncertainty will continue to play out in lower courts, institutional policies, and broader societal debates about the purpose of higher education.
What remains clear is that public universities—as government institutions bound by the First Amendment—must operate within constitutional constraints even as they pursue legitimate educational goals. The challenge for these institutions is developing approaches that effectively address genuine harassment and discrimination while respecting the fundamental right to free expression that underlies the academic enterprise.
As Justice Thomas noted in his dissent, the Court’s refusal to resolve the circuit split creates a troubling situation where students’ First Amendment protections may vary based simply on where they attend college. This “patchwork” of constitutional rights seems particularly problematic in an era when higher education increasingly operates across state and even national boundaries through online learning and multi-campus systems.
For students navigating this complex landscape, the practical advice from free speech advocates remains consistent: understand your institution’s policies, document interactions with bias response teams, and seek legal counsel if you believe your constitutional rights have been infringed. For universities, the challenge is developing systems that fulfill their educational mission and legal obligations while respecting constitutional boundaries—a balance that remains elusive in the absence of clear Supreme Court guidance.
The tension between free expression and efforts to create inclusive learning environments will undoubtedly continue to generate controversies on American campuses. How these controversies are resolved—whether through litigation, legislation, or institutional reform—will shape not only the immediate campus experience but also broader societal understandings of free speech in an increasingly diverse and digitally connected world.
