Thomas and Alito Dissent as Campus Free-Speech Questions Remain Unanswered

In their dissent from the Court’s refusal to hear Speech First v. Indiana University, Justices Clarence Thomas and Samuel Alito expressed concern that the Court’s silence could erode protections for student expression nationwide. Both justices signaled that the First Amendment implications of campus bias response teams deserve urgent judicial review.
Justice Thomas wrote that the current legal landscape allows “an inconsistent and unpredictable regime of free-speech protection,” noting that students in different regions now face differing levels of scrutiny for their expression based solely on where they attend school. Justice Alito echoed that sentiment, emphasizing that the Court’s failure to intervene “permits universities to maintain systems that, in practice, may punish speech under the pretext of maintaining civility.”
The case originated from a challenge by Speech First, a nonprofit organization advocating for student rights, which argued that bias response programs create an atmosphere of surveillance that discourages open discussion. The group pointed to examples where students avoided discussing topics such as immigration, race, or gender identity out of fear that peers might report them for “offensive” statements — even when their speech was constitutionally protected.
Lower courts have split over such arguments. Some have ruled that bias response teams do not constitute state censorship because they lack formal disciplinary power, while others have suggested that the programs’ investigatory reach can indirectly suppress speech through intimidation or self-censorship.
Universities defending the practice argue that bias response teams are designed not to punish, but to educate — to mediate conflicts and promote respectful dialogue. They also contend that these systems help maintain safe learning environments for students from diverse backgrounds.
By declining to hear the case, the Supreme Court effectively leaves these debates to continue in lower courts and state legislatures. Free-speech advocates predict that more challenges will follow as universities nationwide grapple with how to balance inclusivity with open expression.
For now, institutions may continue using bias response mechanisms, but the lack of a definitive ruling means that questions about where the line between education and enforcement lies remain open — ensuring that the clash between free speech and campus civility policies is far from over.