Speech First, Inc. v. Timothy Sands

January 18, 2022
Court: United States Court of Appeals for the Fourth Circuit

Bias response teams (BRTs) have proliferated at college and universities in recent years. Although they vary in name and structure from campus to campus, they all tend to chill student speech, across the political spectrum. Virginia Tech’s Bias Intervention and Response Team (BIRT) egregiously used the anti-terrorism slogan, “See Something, Say Something!” to expressly encourage students to report peers’ protected expression, should they subjectively find it “hurtful.”

FIRE filed an amicus curiae brief in support of Plaintiff-Appellant Speech First, Inc., after the U.S. District Court for the Western District of Virginia denied the organization’s motion to preliminarily enjoin Virginia Tech’s enforcement of its bias response procedure, among other policies that infringe students’ freedom of expression.

FIRE’s brief highlights its 2017 Bias Response Team Report to demonstrate how commonplace Bias Response Teams (BRTs) are in higher education—affecting 2.84 million students enrolled at 231 public and private institutions across the country. In almost all cases, they are staffed by administrators without First Amendment training and rely on students subjectively perceiving “bias” and reporting it. However, in recent years, the Fifth and Sixth Circuits have both held that BRTs similar to Virginia Tech’s chill speech, an injury that gives students standing to challenge the constitutionality of these policies.

Virginia Tech’s own bias response team is among the most blatant at targeting student expression, using a reporting page modeled after an actual police report. The University encourages students to report on each other for “bias related conduct,” and provides examples that are all protected under the First Amendment. Though courts have observed that BRT policies can be unconstitutional for simply appearing to have the authority to punish students, Virginia Tech takes it further. Virginia Tech’s bias response system passes along allegations to relevant authorities for criminal and adjudicative proceedings, and can call students into meetings regarding the alleged bias incidents. Aside from conduct that is “criminal” or violates the Student Code of Conduct, Virginia Tech encourages reporting speech that merely offends—the very type of speech the First Amendment was designed to protect. 

FIRE also takes aim at Virginia Tech’s informational activities policies requiring students to obtain university sponsorship to distribute materials, speak on its (public) campus, and even hold those who can obtain sponsorship responsible for when others litter their materials. These policies fly in the face of decades of case law striking down “prior approval” policies on public forums and campuses. The littering provision is too vague to pass constitutional muster, giving administrators the ability to punish groups whose materials have been littered by others.

This is FIRE’s fourth amicus curiae brief—with three others in the Fifth, Sixth, and Eleventh Circuits—in support of Speech First, Inc., a civil rights organization that brings facial challenges to college and university policies that threaten students’ First Amendment rights. 

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