MIT Free Speech Alliance joins Amicus Brief Asking the Supreme Court to hear Bias Response Team case

September 28, 2023

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Last week, the MIT Free Speech Alliance, together with the Alumni Free Speech Alliance and eight of its members, submitted an amicus brief to the Supreme Court of the United States arguing that the court should agree to hear the case Speech First v. Sands. The case centers on the question of whether Virginia Polytechnic Institute and State University’s (Virginia Tech’s) Bias Incident Response Team (BIRT) violated students’ First Amendment rights through its collection of records related to students’ protected expression.

Virginia Tech’s BIRT consists of a website for accepting anonymous or signed complaints about student speech that the university acknowledges is protected by the First Amendment. The bias response system also consists of a database into which any complaints are put into students’ permanent records, but without any punishment, and not necessarily even any due process or notice to the student. The third part of the system is the “bias response team,” a group of administrators who may invite students to a voluntary meeting to discuss the reported speech.

Speech First, representing Virginia Tech students, sued Virginia Tech, alleging that the bias response system was an infringement of their First Amendment rights, having a chilling effect on free speech. In June, the United States Court of Appeals for the Fourth Circuit ruled that Speech First lacked standing to sue Virginia Tech over the BIRT, with the majority ruling that its collection of records for non-disciplinary purposes did not give rise to a constitutional claim.

The Fourth Circuit’s ruling in Speech First v. Sands exacerbates a split between federal circuits on this core question, making yet more pressing the need for the Supreme Court to adjudicate the matter. The MIT Free Speech Alliance and its sister AFSA organizations have thus filed an amicus brief in support of Speech First’s petition to grant cert and have the Supreme Court hear the case and provide a nationwide resolution on this threat to open expression at universities.

“Our interest in this case is twofold,” said Wayne Stargardt ’74, President of the MIT Free Speech Alliance. “First, MIT itself has a bias response system that operates similarly to the Virginia Tech system, and we believe such systems can far too easily chill student expression. Second, as one of the Alumni Free Speech Alliance’s 22 national members, we see the need for clarity on this issue at the national level. We hope the Supreme Court will step in and provide it.”