Court Rules Against Free Speech Group, Upholds Virginia Tech Bias Policy
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A federal appeals court ruled Wednesday that a free speech group lacks standing to challenge the constitutionality of Virginia Tech’s bias policies.

In a 2-1 decision, the 4th U.S. Circuit Court of Appeals upheld Virginia Tech’s Bias Intervention and Response Team (BIRT) and Informational Activities Policy (IAP), ruling against Speech First, a civil rights organization dedicated to protecting college students’ free speech rights.

“Here, Speech First has failed to demonstrate that a single one of the district court’s numerous findings of fact is clearly erroneous,” wrote Senior Judge Diana Gribbon Motz for the majority. “Speech First offers only speculation in support of its argument that it has suffered an injury in fact.”

BIRT allows individuals to report students for any “expression made against a person or group” that the university considers motivated by bias. Speech First argued that Virginia Tech, through BIRT, created an “elaborate bureaucratic regime that burdens the exercise of free speech,” according to the court opinion.

The dissent, written by Judge J. Harvey Wilkinson, focused on the “real-world consequences” of the court’s decision.  Wilkinson argued that the BIRT’s reporting system has a “chilling effect” on the First Amendment and that due to the policy, a “reasonable student” would “keep her head down, sit silently, and avoid the potential fallout” in class when controversial topics are discussed.

The court majority denied this claim, arguing that because the meetings initiated by the BIRT were voluntary, the reporting system could not be regarded as punishing free speech. Further, Motz wrote, “Just as universities may legitimately strive to promote intellectual curiosity, so too they may legitimately strive to promote civility and a sense of belonging among the student body. That is what Virginia Tech’s Bias Policy seeks to achieve.”

IAP is a regulation on who can hand out flyers and leaflets on campus, requiring approval from the Student Engagement and Campus Life Office. For a student’s leafleting activities to be approved, he or she must be sponsored by one of the university’s registered student organizations.

Speech First challenged the IAP, arguing the policy was akin to “prior restraint” policies struck down by courts in the past and a speaker-based restriction on speech in violation of the First Amendment. The majority disagreed, writing that the IAP is a “reasonable” regulation, motivated not by a desire to regulate speech but a system that “ensures fair and equitable access” to [Virginia Tech’s] finite resources.”


The Foundation for Individual Rights and Expression (FIRE) — who filed an amicus brief supporting Speech First — gives Virginia Tech a “yellow” free speech rating, meaning that the university has “at least one ambiguous policy that too easily encourages administrative abuse and arbitrary application.” Among these policies are Virginia Tech’s “Discriminatory Harassment,” “Bias-Reporting,” “Offenses Against People,” and “Usage and Event Approval” policies, among others.

The two judges ruling in favor of the university — Senior Judge Motz and Judge Albert Diaz — were appointed by Democrats (President Bill Clinton and President Barack Obama, respectively), while the dissenting judge — Judge Wilkinson — was nominated by Republican President Ronald Reagan.

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