A Bias Response Team Evades Justice at the Supreme Court


The Justices avoid issuing a judgment on a case against college speech reporting at Virginia Tech.

The Editorial Board

The Wall Street Journal

March 5, 2024  6:15PM ET


The Supreme Court said Monday it won’t hear a challenge to Virginia Tech’s old system of soliciting anonymous speech complaints via an official bias response team. Instead the Justices declared the case moot, after the college’s president told them the policy had been discontinued, while also promising—he swears—not to revive it. 


Good for Hokies, but as a dissent from Justice Clarence Thomas says, failing to answer the legal question leaves the First Amendment up for grabs at other schools. Speech First, which brought the Virginia Tech case, “estimates that over 450 universities have similar bias-reporting schemes,” Justice Thomas writes, joined by Justice Samuel Alito. “Yet, because of the split among the Courts of Appeals, many of these universities face no constitutional scrutiny, simply based on geography.”


The Fourth Circuit Court of Appeals held that Virginia Tech’s policy didn’t chill protected expression, because its Bias Intervention and Response Team, or BIRT, lacked power to punish students. Justice Thomas is skeptical.


“The university officials may call in the accused student—whom the policy pre-emptively labels as the ‘perpetrator,’” he says. The BIRT can refer students for discipline. “And, of course, every report—regardless of whether the team determines bias exists—is recorded and kept on permanent file.”


His opinion includes some examples of what happens when all of a campus is urged to submit anonymous tips about “bias.” One report was on male students who were privately “talking crap” about the women playing in a snowball fight, “calling them not ‘athletic.’” Another report concerned a room white board on which someone “observed the words Saudi Arabia.”


No context? No problem. Virginia Tech advertised the BIRT with a chirpy slogan: “If you see something, say something!” Judge J. Harvie Wilkinson III, dissenting in the Fourth Circuit, imagined a 19-year-old student deciding whether to speak up in a class debate on a controversial topic. “She thought she had an insightful comment to add to the discussion,” he wrote, “but it might not be worth risking an encounter with the bias response team.”


Virginia Tech President Timothy Sands told the High Court that the BIRT was terminated last summer under a new dean of students. He said the decision “was not prompted by the Speech First lawsuit.” Justice Thomas says that other universities “have attempted a similar maneuver, but two Courts of Appeals have found that these policy changes did not moot Speech First’s challenges.”


Since the case won’t be heard, the Justices vacated the Fourth Circuit’s ruling, to keep it from setting precedent. Yet the frustrating outcome remains: For now, at least, overbroad college bias teams at schools not named Virginia Tech can go about their creepy business.

         



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The Daily Signal By Hannah Fay October 07, 2025 "On Sept. 5, we filed a civil rights complaint with the Department of Education and the Department of Justice against our alma mater, Davidson College. We did not make this decision out of anger towards Davidson but from our hope that Davidson can become an institution of free expression that encourages students to pursue truth. We had chosen Davidson as student athletes and recall being high school seniors, eager to attend a college where we could simultaneously pursue a high level of athletics and academics and be challenged to become better competitors, students and, most importantly, people. We believed that Davidson would be the perfect place for our personal growth, where we would be encouraged to encounter new ideas while contributing our own. Little did we know that Davidson does not welcome students with our convictions . During our senior year, we decided to restart the Davidson chapter of Young Americans for Freedom, a national conservative student organization, which had been disbanded. With this decision, we knew that we would receive backlash from peers. Before the school semester even started, we received hateful online comments such as “Who let y’all out of the basement?” We saw how other universities treated conservatives and had even experienced hostility firsthand at Davidson, being called “homophobic” or “uninclusive” for our involvement in Fellowship of Christian Athletes, whose statement of faith declares that marriage is between a man and a woman. We realized that, although we were friends with progressive individuals for the past few years, fully aware and accepting of their political beliefs, they would likely distance themselves from us once they learned of ours. While we were prepared for this reaction from our peers, we did not expect to receive such opposition from Davidson administrators. We naively believed that despite the college’s leftist indoctrination efforts (requiring cultural diversity courses, mandating student athletics to watch a documentary arguing that all white people were inherently racist, having a DEI office, designating secluded spaces for LGBTQ+ students, etc.), they would still surely encourage free speech. After all, a liberal arts institution should cultivate a space where students can freely inquire, peacefully debate, and form decisions for themselves. Before the semester even began, we faced resistance from the administration as we could not get approval to restart the club from the Director of Student Activities Emily Eisenstadt for three weeks after a follow-up email and a faculty advisor request. Other conservative organizations also faced irresponsiveness from the Director of Student Activities. However, when leftist groups wanted to bring Gavin Newsom to campus, they had no problem getting a swift response. Despite continued administrative opposition, we hosted speakers, including pro-life activist Abby Johnson and President Ronald Reagan’s economic advisor Arthur Laffer; organized events such as the 9/11 “Never Forget”; and attempted to engage in civil conversations about abortion. Our efforts even led to us being awarded “Chapter Rookie of the Year” by Young America’s Foundation. Our most notable event, and the reason for our complaint, was our “Stand with Israel” project, in which we placed 1,195 Israeli flags into the ground to memorialize the innocent victims of the Oct. 7 Massacre by Hamas. We also laid out pamphlets on tables in the library and student union titled, “The Five Myths About Israel Perpetrated by the Pro-Hamas Left,” provided to us by Young America’s Foundation. This event led to two significant outcomes. First, our flags were stolen overnight. When we brought this to the attention of Davidson administrators and the Honor Council, they dismissed the case and chose not to investigate, despite their so-called commitment to the Honor Code. Second, on Feb. 26, 2025, over four months after the event, we received an email from Director of Rights and Responsibilities Mak Thompkins informing us that we faced charges of “violating” the Code of Responsibility. We had allegedly made students feel “threatened and unsafe” due to our distribution of pamphlets that allegedly promoted “Islamophobia.” This was ironic to us, given that we did not even know who our accusers were, let alone not ever having interacted with them. What’s more, we knew of Jewish students who genuinely felt targeted because of the rampant antisemitism on our campus. For example, a massive Palestine flag was hung across our main academic building the day after President Donald Trump won the election, and the student group ‘Cats Against Imperialism’—Davidson’s college moniker is “Wildcats”—distributed pamphlets promoting their aggressive pro-Palestinian agenda. Yet, unlike us, they faced no consequences. Davidson’s biased treatment towards pro-Israel students led to our filing a civil rights complaint with the DOJ and Department of Education. Davidson College must be held accountable for its blatant discrimination and violation of Title VI and Title IX ; it should not receive any federal funding until it complies with the federal law. In light of the recent assassination of Charlie Kirk, it is now more important than ever that higher education promotes free expression. Colleges and universities are predominantly controlled by leftists who demonize conservatives and the values we stand for. If Davidson cannot commit to shaping students who understand the equal dignity of every person made in the image of God, regardless of religion, it risks corrupting individuals and prompting them to support, or even commit, acts of political violence. We hope that Davidson will become a community that values all perspectives and treats all students with dignity and respect, including the Jewish population. Though we are not of Jewish descent, we strongly support Israel and the Jewish people and faced discrimination based on the content of our support. If we had, as our counterparts did, expressed antisemitism, Davidson officials would have treated us differently. Hannah Fay is a communications fellow for media and public relations at The Heritage Foundation.
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