Supreme Court Refuses to Consider Whether University “Bias-Response Teams” Chill Speech
The Supreme Court does not hear many cases these days. It is very stingy in granting certiorari, even in cases that present clear circuit splits. This morning’s Order List provides a good example, as the Court denied certiorari in Speech First v. Whitten, which presented the question whether university “bias-response teams” objectively chill students’ speech under the First Amendment (and, as a consequence, whether there is Article III standing to challenge them).
Only two justices (Alito and Thomas) indicated their desire to hear this case. One, Justice Thomas, wrote a dissent from the cert denial. It begins:
More than 450 of our Nation’s colleges and universities have “bias response teams.” These teams “encourag[e] students to report one another for expressions of ‘bias,'” and then review and act upon reports. Speech First, Inc. v. Sands, 601 U. S. ___, ___–___ (2024) (THOMAS, J., dissenting) (slip op., at 1–2). In reviewing First Amendment challenges to bias response teams, the Courts of Appeals have split as to whether they “objectively chill” student speech for purposes of Article III standing. I would grant certiorari to resolve that important split.
Why didn’t Justice Alito join Justice Thomas’ dissent? We don’t know, but one possibility is that Justice Thomas tipped his hand as how he is inclined to see the merits:
This case presents an opportunity to resolve an important Circuit split. Three Circuits, when evaluating similar facts, have rejected the Seventh Circuit’s view and found that
bias response policies “objectively ch
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