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OPINION: This article may contain commentary which reflects the author’s opinion.
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The U.S. Supreme Court declined on Monday to consider the constitutionality of college bias response teams. However, despite the opinions of two conservative justices, Clarence Thomas and Samuel Alito, the court did not accept a lawsuit against Indiana University officials that was brought by Speech First, a group created to protect students’ First Amendment rights.
In many cases, the group has taken colleges across the country to court because they use bias response teams, which ask for anonymous reports of bias and may send students to be disciplined, The Hill reported.
In a similar case last year, the group sued Virginia Tech, but the Supreme Court did not accept it. Virginia Tech eventually ended its team.
“Given the number of schools with bias response teams, this Court eventually will need to resolve the split over a student’s right to challenge such programs,” Thomas wrote Monday.
“The Court’s refusal to intervene now leaves students subject to a ‘patchwork of First Amendment rights,’ with a student’s ability to challenge his university’s bias response policies varying depending on accidents of geography,” Thomas continued, quoting his similar dissent when the court turned away the Virginia Tech case.
Speech First wanted the court to use the Indiana case to settle the legal question. They said it had made the circuit split even more severe over whether students can sue when college bias teams silence speech in a way that violates the First Amendment.
“Precisely because speech codes are often struck down, universities have looked for subtler, more sophisticated ways to chill disfavored speech. Enter the bias-response team,” Speech First’s petition stated.
“Instead of outright banning biased speech, these teams deter it by threatening students with adverse consequences. They also burden it by imposing a series of administrative and other costs on students who commit ‘bias incidents,’” it continued.
Describing Speech First as a “frequent flier of lawsuits against higher-education institutions,” attorneys for the Indiana school officials urged the justices to turn away the case.
“The case is thus not a remotely serviceable vehicle for reaching Speech First’s purportedly split-closing question. No such split exists, and this appeal would lead nowhere anyway,” they wrote in court filings.
The nation’s highest court has made headlines lately with key rulings.
Last week, the Supreme Court turned down a chance to change its previous decision that allowed buffer zones around abortion clinics, even though two of the court’s most conservative members were against it.
The court said in two orders released Monday that it would not hear challenges to laws in Carbondale, Ill., and Englewood, N.J., that stop anti-abortion activists from “sidewalk counseling” people who are going to an abortion clinic.
Both Justices Clarence Thomas and Samuel Alito said they would have taken up the case, but it needed the votes of four justices to be carried out, The Hill reported.
Based on the Supreme Court’s decision in Hill v. Colorado in 2000, lower courts upheld the ordinances in both cities. That decision said that a similar law in Colorado did not violate the First Amendment.
Since then, groups against abortion have tried to destroy the precedent. Some conservative justices recently said that the decision was an abuse of free speech, including in the Supreme Court’s opinion overturning constitutional protections for abortion. This gave them more hope.
“Hill has been seriously undermined, if not completely eroded, and our refusal to provide clarity is an abdication of our judicial duty,” Thomas wrote.
“Hill was wrong the day it was decided, and the case for overruling it has only strengthened ever since,” Paul Clement, a veteran conservative Supreme Court attorney who previously served as solicitor general, wrote in the petition challenging Carbondale’s ordinance.
Coalition Life is an anti-abortion group that does “sidewalk counseling” in places like Carbondale. Clement worked for them. To get rid of the 24-year-old rule, the group asked for help from 15 Republican state attorneys general, Alliance Defending Freedom, and other anti-abortion groups.
As it asked the court to reject Coalition Life’s appeal, the city pointed out that its law had been thrown out.
“Petitioner wants to fast-track a request that this Court overturn Hill just as it overturned Roe v. Wade. This Court should deny that request. This case is a far cry from an ideal—or even passable—vehicle for revisiting Hill,” Neal Katyal, another veteran Supreme Court advocate, who served as acting solicitor general under former President Barack Obama, wrote on behalf of the city.
In Englewood, resident Jeryl Turco fought against a similar law that the city passed in 2014 to create a buffer zone around an abortion clinic because of violent protesters from a group called Bread of Life.
Turco is not part of the group and said the ordinance violated her First Amendment rights to work as a sidewalk counselor in a way that was not allowed.
Jay Sekulow, who is the lead counsel at the conservative American Center for Law and Justice, was her lawyer. Sekulow was one of President Trump’s lawyers in his first trial for impeachment.
Englewood urged the court to turn away the case, saying it “is extremely fact-sensitive and involves material credibility issues that the District Court has resolved. Also, the facts of this case are unique because of Petitioner’s method of sidewalk counseling.”