Supreme Court turns away First Amendment challenge to university bias response teams

One of these days, the Supreme Court is going to decide whether public colleges and universities violate the First Amendment in maintaining bias response teams that investigate complaints that other students have engaged in offensive speech or conduct motivated by bias or prejudice and meant to intimidate, demean, mock or degrade an individual or group's identifies. That day has not arrived, but two Justices think this issue is ripe for Supreme Court review.

The case Speech First, Inc. v. Whitten (scroll down to the end).The Supreme Court denied certiorari on March 3. Justices Alito and Thomas wanted to take the case, and Thomas wrote a dissent from the denial of certiorari. It takes four Justices to hear the case. 

Under the policy at Indiana University, a bias complaint is reviewed by the bias response team which cannot impose discipline or conduct formal investigations but can assess whether anyone violated university policy or any criminal laws. The team an refer the matter to other campus offices with disciplinary power. The argument is that these policies violate the First Amendment because they might chill constitutionally-protected speech on campus. 

The plaintiffs are conservative students who hold "unpopular" views about gender identify, the Israeli-Palestine conflict, immigration, and affirmative action. The Seventh Circuit held the plaintiffs lack standing to sue because they have not shown the bias response policies will be enforced against them or that any student has faced an objectively reasonable chilling effect on their speech. But, Justice Thomas notes, three Circuits have held otherwise and fond that bias response policies "objectively chill" student speech, including the Fifth, Sixth and Eleventh Circuits. Circuit splits usually wind up in the Supreme Court, 

Justice Thomas believes the Seventh Circuit most likely got this issue wrong because 

It is well settled that plaintiffs may establish standing based on “the deterrent, or ‘chilling,’
effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights.” And, in assessing whether an “objective chill” exists in a particular case, courts must “look through forms to the substance” of the government’s “informal sanctions." The Seventh Circuit’s emphasis on the formal limits of a bias response team’s power seems hard to square with this Court’s framework.

He adds, "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. 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."

I guess the bias response teams fall under the DEI category. DEI is in the news these days because the President has objected to them. I wonder if the administration will threaten to withhold funds from colleges and universities that maintain such anti-bias rules and procedures.