Daily Local News (West Chester, PA)
High court anything but ‘activist’
Although the Supreme Court is frequently accused of improper “activism,” it is often guilty of passive dereliction of duty. A recent example was its refusal to correct the U.S. Court of Appeals for the 4th Circuit’s lackadaisical tolerance of the culture of enforced conformity on campuses.
Virginia Tech’s “Bias Intervention and Response Team” policy designated teams of school officials to respond to reports of unacceptable ideas. It encouraged students to report — anonymously, if they preferred — anything that “feels like” bias. The university defined bias broadly as “expressions” — students’ conversations, posters, phone messages, emails, texts, jokes, etc. — seen or heard (or overheard, or heard about), on campus or off.
Bias could be against a “person or group” because of “age, color, disability, gender (including pregnancy), gender identity, gender expression, genetic information, national origin, political affiliation, race, religion, sexual orientation, veteran status, or any other basis protected by law.” “Genetic information”? Bias-detectors cannot be too exhaustive.
The university warned students — as though they might not already be sufficiently nervous — to consider their “language, images, and other forms of communication to make sure all groups are fairly represented.” The bias-sniffing bureaucracy’s apparent assumption was that students should maintain a mental inventory of all possible forms of communication, every conceivable “group,” and what constitutes “representation” and what representation is “fair.”
This suffocatingly comprehensive policy provoked Speech First, an organization opposing threats against free speech on campuses. It estimates that more than 450 schools have bias-response speech-policing regimes. After a district court refused Speech First’s request to enjoin Virginia Tech’s practices, the organization appealed to the 4th Circuit, which allowed the university’s practices to continue. The court majority’s reasoning was shredded by Judge J. Harvie Wilkinson’s dissent.
He correctly insisted that Virginia Tech’s policy had “incipient inquisitional overtones” and turned the campus into “a surveillance state” where the First Amendment existed “at the sufferance of a bureaucracy.” His complacent colleagues said there was no “direct” evidence of “objectively” chilled speech. (Well, yes: Self-censorship is silent; suppressed thoughts are undetectable.) The 4th Circuit’s majority said the bias response teams could not punish. (They could, however, refer any matter to university entities that can.) The majority said that bias response teams could only “invite” an accused student to a “voluntary” meeting with a university official. (The mincing language does not disguise the menace.)
The name “Bias Intervention and Response Team” radiates prejudgment by the university, which preserves all complaints. And the blandly named Informational Activities Policy forbade distributing fliers or collecting signatures without the school administration’s prior approval.
Yet the supposedly activist Supreme Court passively refused to hear Speech First’s appeal against the 4th Circuit’s passivity. Justice Clarence Thomas, joined by Samuel A. Alito Jr., vigorously dissented, saying that Virginia Tech’s regulating of speech “appears limitless in scope”: “From the moment a student enters the university until graduation, he is under the university’s surveillance.” On campus and off.
Citing Wilkinson’s warning that wary students will decide that expressing their thoughts is not worth the potential trouble, Thomas warned that until the court clearly speaks about First Amendment rights on all campuses, there will be a national patchwork of rights. Students in regions covered by different circuit courts will be able to challenge oppressive school administrations. Students in less fortunate regions can still be pressured to avoid controversial speech in order, Thomas wrote, to “escape their universities’ scrutiny and condemnation.”
UCLA law professor Eugene Volokh says that nowadays “censorship envy” generates reciprocal speech suppressions: One ban (e.g., on speech celebrating Hamas atrocities) causes people who disagree with it to assert an entitlement to a reciprocal ban (e.g., on speech defending Israel’s countermeasures). Virginia Tech evidently suffers from “Stasi envy,” a desire to emulate East Germany’s surveillance-and-suppression apparatus that depended on a culture of anonymous informers.
After emphatically asserting the constitutionality of its speech-control apparatus, Virginia Tech suddenly modified it, clearly hoping that the Supreme Court would do what it did last week: It declared Speech First’s challenge moot, meaning no longer a live controversy. Thomas, however, noted: “Other universities have attempted a similar maneuver” — what one circuit court dryly called “a sudden change of heart, during litigation,” about their speech codes, to claim mootness. But, Thomas noted, two circuit courts “have found that these policy changes did not moot Speech First’s challenges.”
The Supreme Court, which can produce clarity when the circuits produce confusion, is, critics charge, too “activist.” Hardly.