Indiana University, like hundreds of other universities, has created a “bias-response team” that suppresses disfavored speech and ideas. The university invites IU students and the public to anonymously report students and staff for “bias incidents.” IU is a public university, and the Supreme Court has emphasized that the “vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” That is why such a scheme raises serious First Amendment concerns.

Speech First, a national free speech organization, filed a lawsuit in federal court against Indiana University officials on behalf of IU students who are members of the organization. Speech First argued that IU’s bias-response reporting system has a chilling effect on students’ speech. As Speech First explained, students feared being reported just for airing their political beliefs. Students know that merely being reported could lead to formal or informal discipline.

Indiana University argued that its team does not chill speech because it lacks the power to discipline students directly. Although three federal appellate courts have properly held that bias-response teams chill speech and violate the First Amendment, the district court and Seventh Circuit ruled in favor of Indiana University, holding that Speech First lacked standing to bring its lawsuit because the team did not have formal disciplinary powers.

Now Speech First is seeking review from the Supreme Court, asking the Court to resolve the circuit split. And Cato has filed an amicus brief in support of Speech First’s petition.

By its own admission, Indiana University’s bias-response team investigates reported “bias incidents.” But as our brief explains, IU’s definition of “bias” is broad and circular, and it includes core political speech. That means the speech at issue in these “incidents” is protected by the First Amendment.

Our brief argues that bias-response teams objectively chill speech, regardless of whether such teams have formal disciplinary powers. After incidents are reported, the team reaches out to reported students and invites them to “voluntary” meetings, wherein the students are effectively re-educated on their speech. The team is run by high-level university officials who have the power to refer incidents to other departments with disciplinary power and to law enforcement. Reasonable students fear that the team will make a record of their speech and refer them for discipline. And students self-censor accordingly.

Our brief further points out that the Seventh Circuit misapplied the Supreme Court’s decision in Bantam Books, Inc. v. Sullivan. In that case, the Court struck down a state law creating a state-appointed body—the Morality in Youth Commission—that advised publishers on whether their works would corrupt minors. It did not matter to the Court that the commissioners in Bantam Books were volunteers who had no authority to ban publications—no party disputed that book publishers had standing to bring the case. And the Court rightly held that the Commission chilled speech in violation of the First Amendment. Likewise, Indiana University’s bias-response team is an informal speech-reporting system designed to deter unpopular speech. IU students have suffered a First Amendment injury, and they have standing to sue the University.

Free speech and open debate are vital in public universities, but both are undermined by bias-response teams. The Supreme Court should grant review in this case, resolve the circuit split, and reverse the Seventh Circuit.