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.

         

Where Liberty and Learning Endure

June 29, 2026
As America commemorates 250 years of independence, we reflect on the enduring principles of liberty and learning that have defined Davidson College for nearly two centuries.

Bankruptcy and Higher Education

June 21, 2026
By Todd Zywicki The Wall Street Journal June 21, 2026 Auburn University is known for its agricultural and STEM programs, its flight school and athletic programs. But the land-grant university recently became notable for another reason: The board of trustees is taking control of the school back from its faculty. The board began seizing the university’s academic programs—including curriculum, course offerings, degree requirements and academic credentials—at its June 5 meeting. The board also dissolved the faculty senate and replaced it with an advisory council to the president, which includes two faculty members from each of the university’s colleges and additional members appointed by the president. The board’s assertion of authority mirrors incoming mandates by the Alabama Legislature restricting the role of faculty senates in the state’s public university system. Predictably, Auburn’s faculty has responded with howls of outrage, decrying these intrusions on the faculty’s authority over academic operations. How could outsiders appointed through a political process have the expertise to make such delicate decisions? I’ve been a professor at a state university for almost 30 years, and I am sympathetic up to a point. But before becoming a professor I was a bankruptcy lawyer. And bankruptcy law teaches an important lesson for how academia can respond to this moment. Bankruptcy gives businesses an opportunity to admit mistakes, reform and emerge stronger. Successful enterprises don’t need bankruptcy lawyers. But when an enterprise loses its way, it goes into receivership. Most universities aren’t financially bankrupt but have lost their mission and direction. Society has long recognized certain institutions’ authority to manage their own affairs. Two notable examples are licensed professionals—such as doctors and lawyers—and universities. Universities, even state universities, have run their enterprises with minimal external oversight. Faculties enjoyed substantial rights of self-governance because they committed to higher standards than those required by ordinary jobs. Professors would establish and maintain standards of scholarly integrity, freedom of speech and inquiry, and rigorous dedication to merit-based assessment of research in specialized areas. They policed their own house, enforcing norms of truth-seeking, maintaining scholarly integrity and rigor, and ensuring that students emerged with basic knowledge, employable skills and civic competency. But over the past several decades, commitment to those values collapsed. Surveys by the Foundation for Individual Rights and Expression consistently reveal fear among students and faculty around expressing unfashionable ideas. Universities have seen shout-downs, cancellations and even violence against speakers. Merit and quality yielded to “diversity” and “equity.” Truth-seeking has been displaced by faddish theories and ideologically charged teaching and research. Professors design esoteric departments and teach niche classes to cliques of activist students while the needs of other students and taxpayers for real education go unaddressed. Like companies I represented, universities have lost their way. And many have proved either unable or unwilling to self-correct. When that happens, it is appropriate to put institutions into receivership until they reform and rededicate themselves to their mission. At Auburn incoming students must now take certain required civics and history courses to master basic competency in U.S. history and government. To ensure the classes actually meet that objective, professors will have to make their syllabi publicly available. In the classroom, instructors will be expected to stick to the matter at hand and avoid free-ranging political punditry. Just as other companies can learn from the ones that go bankrupt, other institutions of higher education can learn something from Auburn: Fix what’s broken, or someone else might fix it for you. Mr. Zywicki is a professor at George Mason University’s Antonin Scalia Law School. He was a Dartmouth College trustee, 2005-09. https://www.wsj.com/opinion/bankruptcy-and-higher-education-4c2b178e

Race Preferences Are Falling Nationwide

June 19, 2026
By the Editorial Board The Wall Street Journal June 19, 2026 The Supreme Court’s 2023 ruling against racial preferences is turning out to be a landmark with profound consequences as its influence spreads. On Thursday the famously progressive Wisconsin Supreme Court ruled unanimously that a state program that issued scholarships based on race violates the U.S. Constitution. Justice Annette Ziegler wrote for the court that the Constitution requires “that every person ‘must be treated based on his or her experiences as an individual—not on the basis of race,’” and that the state cannot “use race as a factor in affording educational opportunities among its citizens.” That must have been painful for the activist liberal majority on the court. In a concurrence, Wisconsin Chief Justice Jill Karofsky took some shots at Students for Fair Admissions v. Harvard College (2023) before acknowledging that “I am bound by the precedent set forth in SFFA” and other Supreme Court rulings “when interpreting the Fourteenth Amendment.” The case was brought by the Wisconsin Institute for Law and Liberty against a 1985 Badger State law that reserved need-based scholarships through a grant program for “Black American,” “American Indian,” “Hispanic” and some Southeast Asian undergraduate students enrolled in Wisconsin’s private and technical colleges. Last week the Iowa Supreme Court ruled that a scholarship program earmarked for black University of Iowa students studying physical sciences was “impracticable” under SFFA. State governments would be wise to repeal these discriminatory grant programs, or the courts will do it for them.
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