Amicus Curiae Brief — Speech First, Inc., Petitioner v. Timothy Sands, Individually and in His Official Capacity as President of Virginia Polytechnic Institute and State University

No. 23-156

In the Supreme Court of the United States

__________

SPEECH FIRST, INC.,

Petitioner,

v.

TIMOTHY SANDS, INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY AS PRESIDENT OF THE UNIVERSITY OF

VIRGINIA POLYTECHNIC INSTITUTE AND STATE

UNIVERSITY,

Respondent.

____________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_______________

BRIEF FOR PARENTS DEFENDING

EDUCATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

__________

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay Street

#22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

TABLE OF CONTENTS

Page

Table of Authorities .....................................................ii

Interest of Amicus Curiae ........................................... 1

Summary of the Argument ......................................... 2

Reasons for Granting the Writ.................................... 4

I.

Bias response teams pervade K-12 schools. .... 4

II. K-12 bias-response teams chill speech........... 15

III. Students subject to bias-response regimes

have standing. ................................................. 20

Conclusion .................................................................. 22

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Am. Commc’ns Ass’n v. Douds, 339 U.S. 382

(1950) ...................................................................... 18

Americans for Prosperity Found. v. Bonta, 141 S. Ct.

2373 (2021) ............................................................. 19

Az. Free Enter. Club’s Freedom Club PAC v. Bennett,

564 U.S. 721 (2011) ................................................ 16

Boos v. Barry, 485 U.S. 312 (1988) ........................... 15

Carey v. Brown, 447 U.S. 455 (1980) ........................ 16

Carson v. Makin, 142 S. Ct. 1987 (2022) .................. 18

Citizens United v. FEC, 558 U.S. 310 (2010)...... 16, 21

Counterman v. Colorado, 143 S. Ct. 2106 (2023) ..... 17

Dennis v. United States, 341 U.S. 494 (1951) ........... 16

Edwards v. Aguillard, 482 U.S. 578 (1987) .............. 18

Freedman v. Maryland, 380 U.S. 51 (1965) ....... 20, 21

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ...... 17

Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407

(2022) ...................................................................... 18

Kennedy v. Warren, 66 F.4th 1199 (9th Cir. 2023)... 18

Lee v. Weisman, 505 U.S. 577 (1992) ........................ 18

Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 141 S.

Ct. 2038 (2021) ............................................. 2, 16, 20

Mahmoud v. McKnight, No. 23-cv-1380, 2023 WL

5487218 (D. Md. Aug. 24, 2023) .............................. 9

iii

Norwood v. Harrison, 413 U.S. 455 (1973) ............... 19

Reno v. ACLU, 521 U.S. 844 (1997) .......................... 21

Rosenbloom v. Metromedia, Inc., 403 U.S. 29

(1971) ...................................................................... 17

Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200 (3d

Cir. 2001) ................................................................ 15

Snyder v. Phelps, 562 U.S. 443 (2011) ................ 15, 19

Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) ....... 17

Speech First, Inc. v. Fenves, 979 F.3d 319 (5th Cir.

2020) ....................................................................... 22

Street v. New York, 394 U.S. 576 (1969) ................... 19

Texas v. Johnson, 491 U.S. 397 (1989) ..................... 15

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393

U.S. 503 (1969) ....................................................... 16

Trinity Lutheran Church of Columbia, Inc. v. Comer,

582 U.S. 449 (2017) ................................................ 18

Vill. of Hoffman Ests. v. Flipside, 455 U.S. 489

(1982) ...................................................................... 21

OTHER AUTHORITIES

Acalanes Union High School District, Bias Incident

Reporting System, https://perma.cc/PSS8-8BSH

(last visited Sept. 7, 2023) ..................................... 13

Acalanes Union High School District, Equity

Definitions, https://perma.cc/F8GL-S7GY (last

visited Sept. 7, 2023).............................................. 14

Brian Willoughby, A Guide for Administrators,

Counselors and Teachers: Responding to Hate and

Bias at School, Teaching Tolerance,

iv

https://perma.cc/QAD2-QXSQ (last visited Sept. 7,

2023) ............................................................... 5, 6, 20

Chicago Public Schools, Bias Report Forms,

https://perma.cc/Y8NR-8JPW (last visited Sept. 7,

2023) ......................................................................... 9

Chicago Public Schools, Responding to Hate and Bias

at School (June 28, 2022), https://perma.cc/45QNN4G5 ........................................................................ 5

Christopher J. Ferguson, Bias-Response Teams are a

Bad Idea, The Chronicle of Higher Education (June

5, 2023), https://www.chronicle.com/article/biasresponse-teams-are-a-bad-idea ............................... 5

Conor Friedersdorf, The DEI Industry Needs to Check

its Privilege, The Atlantic (May 31, 2023),

https://perma.cc/F754-BRCB ................................. 19

D.C. Public Schools, Protocol for Responding to

Incidents of Hate and Bias (Apr. 15, 2021),

https://tinyurl.com/3exupvsz ................................. 13

D.C. Public Schools, Speak Up! How to Report

Incidents of Hate/Bias, https://perma.cc/DR9EA6P3 (last visited Sept. 7, 2023) ........................... 12

Heather M. Ross, Montgomery County School Bias

Incidents Up 400%, Washington Jewish Week

(Aug. 9, 2023), https://perma.cc/8VYM-SPRZ ......... 8

Jefferson County Public Schools Compliance Hotline,

https://perma.cc/H3MU-ZPSC (last visited Sept. 7,

2023) ....................................................................... 13

Jefferson County Public Schools, The Affirming

Racial Equity Tool, https://perma.cc/75FD-SBDR

(last visited Sept. 7, 2023) ..................................... 13

v

Jesse Singal, What if Diversity Training is Doing

More Harm Than Good?, N.Y. Times (Jan. 17,

2023), https://www.nytimes.com/2023/01/17/

opinion/dei-trainings-effective.html ...................... 19

Montgomery County Public Schools, Antiracist

System Action Plan (May 2023),

https://perma.cc/R7SQ-7C7W .................................. 8

Montgomery County Public Schools, Hate-Bias

Incident Reporting Form (Feb. 2023),

https://perma.cc/L4EP-SCVJ ................................... 6

Montgomery County Public Schools, Quick Reference:

Hate Bias Incident Reporting Procedures (Mar.

2023), https://perma.cc/EF48-DPJ7 ........................ 7

Montgomery County Public Schools, Suggestions for

Handling Challenging Situations,

https://perma.cc/4FPH-KWE9 (last visited Sept. 8,

2023) ......................................................................... 8

Parents Defending Education, Bias Response Systems

(Sept. 11, 2023), https://defendinged.org/

investigations/bias-response-systems/ .................... 4

Parents Defending Education, IndoctriNation Map,

https://defendinged.org/map/ (last visited Sept. 7,

2023) ....................................................................... 19

Plaintiff’s Memorandum in Support of its Motion for

a Preliminary Injunction, Parents Defending

Education v. Wellesley Public Schools, No. 21-cv11709, Doc. 7 (E.D. Mass. Oct. 22, 2021) ........ 10, 11

Plymouth-Canton Community Schools, P-CCS Hate

and Bias Reporting Form, https://perma.cc/U8NKMBMP (last visited Sept. 7, 2023)......................... 14

vi

San Francisco Unified School District & County

Office of Education, Administrative Regulation

5145.9 on Hate-Motivated Behavior (June 6, 2022),

https://perma.cc/Z5CT-DG8J ................................. 10

Webster Groves School District, Bias Incident

Reporting, https://perma.cc/G29A-4L9V (last

visited Sept. 7, 2023).............................................. 14

Wellesley Public Schools, Responding to Bias-based

Incidents (Aug. 2022),

https://perma.cc/XG4T-YY49 ................................... 5

Wellesley Public Schools, Seven Forms of Bias,

https://perma.cc/27MA-8QHY (last visited Sept. 7,

2023) ....................................................................... 12

INTEREST OF AMICUS CURIAE

Parents Defending Education is a national,

nonprofit, grassroots association. Its members include

many parents with school-aged children. Launched in

2021, it uses advocacy, disclosure, and litigation to

combat the increasing politicization of K-12 education.

It opposes schools’ growing efforts to indoctrinate

children—over the objections of their parents—with

divisive ideologies about topics like race, gender, and

sexuality.

Parents Defending Education has a substantial

interest in this case. Its members believe that our

children’s education should be based on scholarship

and facts, and should nurture their development into

the happy, resilient, free-thinking, educated citizens

every democracy needs. Our classrooms should

include rigorous instruction in history, civics,

literature, math, the sciences, and the ideas and

values that enrich our country. Students should be

able to engage in a free exchange of ideas about these

topics. Bias-response teams suppress that free speech,

especially when set loose on vulnerable students

subject to a school’s control and oversight.*

* Under Rule 37.2, amicus provided timely notice of its intention

to file this brief. Under Rule 37.6, no counsel for a party authored

this brief in whole or in part, and no person other than amicus

curiae, its members, or its counsel made a monetary contribution

to its preparation or submission. Amicus’s President serves on

the Board of Directors of Petitioner Speech First, Inc.

2

SUMMARY OF THE ARGUMENT

“America’s public schools are the nurseries of

democracy.” Mahanoy Area Sch. Dist. v. B.L. ex rel.

Levy, 141 S. Ct. 2038, 2046 (2021). Our “democracy

only works if we protect the ‘marketplace of ideas.’” Id.

So “future generations” must “understand” the

concept of “I disapprove of what you say, but I will

defend to the death your right to say it.” Id.

Yet public schools today increasingly substitute

ideological orthodoxy for a free exchange of ideas. The

orthodoxy is familiar, centering on radical gender

ideology, critical race theory, and partisan

indoctrination. The enforcement mechanism for this

orthodoxy is less familiar, especially in K-12 schools.

Unfortunately, the same bias-response teams now

found on most college campuses are infecting the

country’s K-12 schools. An investigation by Parents

Defending Education revealed that well over 2 million

K-12 students are already subject to these teams. And

just as on college campuses, K-12 bias-response teams

institute a dissent-chilling surveillance regime

designed to punish schoolchildren who think and

speak for themselves.

The operation of bias-response teams is both

simple and universal. Begin with an administrator,

usually in the Office of Diversity, Equity, and

Inclusion. Add in a policy with a vague definition of

“bias incidents” that covers practically any perceived

slight—say, a “microinsult” or “microinvalidation.”

Focus on feelings, not intent or objective reality. Let

anyone—even someone who has nothing to do with the

school—file complaints, anonymously. Before any

investigation, require public denunciation. Then give

3

the equity officer sole discretion to investigate, often

with no notice to the accused student (or parents).

Keep the investigation very short, then let the same

official impose a punishment—expulsion, suspension,

referral to the police, a restorative “healing circle,”

“reeducation” with DEI officers, a note in the student’s

file. The point of it all is unmistakable: coerce young

children and their parents into silence while

administrators and consultants institute radical, ageinappropriate curricula and ideological indoctrination.

Unfortunately, the scheme works as efficiently in

K-12 schools as it does on college campuses. What

rational student would choose to speak on a

controversial public topic and thereby be subjected to

the rigamarole of DEI investigations, healing circles,

and reeducation? That’s to say nothing of the ultimate

punishment, especially on school campuses: the

intentional social and cultural shaming that stems

from an ideological environment combined with everpresent social media combined with overeager DEI

enforcers. A student’s life can be ruined with an

offhand comment. The result? Silence.

This official pressure to suppress speech

contradicts the First Amendment. As detailed below,

bias-response teams are increasingly common in K-12

schools. They can be found in at least 22 states and the

District of Columbia. They operate under policies that

give maximal discretion to DEI administrators to

investigate and punish a wide range of protected

speech. In this way, they exert tremendous pressure

on students to self-censor. Contrary to the decision

below, the chill on student speech is not only objective,

but obvious. In their current forms, bias-response

4

teams serve barely any purpose other than to chill

speech.

To protect America’s laboratories of democracy

from official and sustained suppression of student

speech, the Court should grant certiorari and hold

that students have standing to challenge the operation

of bias-response regimes.

REASONS FOR GRANTING THE WRIT

I.

Bias response teams pervade K-12 schools.

K-12 schools are always eager to mimic their

higher education comrades. The adoption of biasresponse teams is no exception. A recent investigation

by Parents Defending Education found that at least 22

states and the District of Columbia have bias-response

teams in public schools. Well over 2 million students—

and potentially many more—face these bias-response

regimes, across at least 4,565 schools.1

A bias response or reporting system lets students

and staff, and sometimes the community, report

alleged incidents of bias or biased actions against an

individual or group. Definitions of key terms vary

among schools, particularly as to the central

component of a “bias incident.” A report to the relevant

entity—often

some

sort

of

equity-focused

administrative office—results in investigations and

potential preventive and responsive actions. These

actions can include counseling, remediation,

1 Parents Defending Education, Bias Response Systems (Sept. 11,

2023), https://defendinged.org/investigations/bias-responsesystems/.

5

“restorative justice,” referral to authorities, or other

punitive consequences.

Most of these bias-response teams do not appear to

focus on the concerns that should animate efforts to

protect school safety, like bullying, violence, and

disruption of learning. Many of these schools have

separate, preexisting entities that deal with those

problems. Bias-response teams instead focus on

perceived “microaggressions” and similar speechfocused incidents. “In effect, one person says

something that offends another.”2 Thus, bias-response

teams operate as anonymous snitch systems that are

vulnerable to abuse and misuse by not only peers and

parents but also by community members. As one

professor of psychology explained recently, “there is

little evidence that they work and plenty of reasons to

suspect that they are harmful.”3

Many bias-response teams at K-12 schools rely on

a document entitled “Responding to Hate and Bias at

School,” published by the Southern Poverty Law

Center.4 That document provides examples of

2 Christopher J. Ferguson, Bias-Response Teams are a Bad Idea,

The Chronicle of Higher Education (June 5, 2023),

https://www.chronicle.com/article/bias-response-teams-are-abad-idea.

3 Id.

4 Brian Willoughby, A Guide for Administrators, Counselors and

Teachers: Responding to Hate and Bias at School, Teaching

Tolerance, https://perma.cc/QAD2-QXSQ (last visited Sept. 7,

2023); see, e.g., Chicago Public Schools, Responding to Hate and

Bias at School (June 28, 2022), https://perma.cc/45QN-N4G5;

Wellesley Public Schools, Responding to Bias-based Incidents

(Aug. 2022), https://perma.cc/XG4T-YY49.

6

supposed bias or potential bias events, including

“casual

pejoratives,”

“school

‘pride’”

events,

“assemblies and holidays,” and “student recognition.”5

For instance, “student recognition” can become a “bias

event” because “long-standing traditions may

contribute to a sense of entitlement among some

students, and feelings of frustration or inadequacy in

others.”6 The document urges administrators to “[l]et

everyone know that incidents and concerns should be

reported to school leaders in person or anonymously.”7

As for responding to bias incidents, the document calls

for schools to “denounce the act” before investigating

it.8

Examples of K-12 bias-response teams in action

provide the most damning evidence that they suppress

protected speech. Start with Maryland’s largest school

district, Montgomery County Public Schools. That

district’s Hate-Bias Incident Reporting Form urges

individuals—including “bystander[s]”—to report “any

conduct or incident that” “[i]nvolves discrimination

based on personal characteristics” through “any form

of communication,” on or off school property and

“Personal

including

over

the

internet.9

characteristics” are vast: “race, ethnicity, color,

ancestry, national origin, religion, immigration status,

sex, gender, gender identity, gender expression,

5 Willoughby, supra note 4, at 5.

6 Id.

7 Id. at 6.

8 Id. at 14–15.

9 Montgomery

County Public Schools, Hate-Bias Incident

Reporting Form (Feb. 2023), https://perma.cc/L4EP-SCVJ.

7

sexual orientation, family/parental status, marital

status, age, physical or mental disability, poverty and

socioeconomic status, language, or other legally or

constitutionally protected attributes or affiliations.”10

Prohibited

communications

include

“teasing,”

“spreading gossip,” and a vague catch-all of

“demeaning/critical remarks.”11

Under district policy, immediately after the bias

form is submitted and before any investigation, “[a]ll

[alleged] hate-bias incidents must be reported to the”

Montgomery

County

Police

Department.12

Meanwhile, the school principal “will triage the

situation and work with members of the Behavioral

Threat Assessment Team (BTAT) to determine the

degree (scope and scale) of risk.”13 The Office of School

Support and Well-Being “will create an incident

report” in school systems “and notify Student Welfare

and Compliance, mobilizing a central support team.”14

Only

after

the

principal

“complet[es]

the

investigation” is any parent or guardian notified.15

Then the “Equity Unit” helps “determin[e] next steps

with staff and student professional development and

training,” along with “student discipline measures.”16

10 Id.

11 Id.

Montgomery County Public Schools, Quick Reference: Hate

Bias

Incident

Reporting

Procedures

(Mar.

2023),

https://perma.cc/EF48-DPJ7.

13 Id.

14 Id.

15 Id.

16 Id.

12

8

Schools’ responses to reported incidents must

“clear[ly]” “operationalize[] an antiracist response,”

which the district defines as creating “equitable

educational, social-emotional, and health outcomes for

students, staff, and families of color.”17 In one “HateBias Resource,” the district tells teachers to create

“community agreements” governing discussions about

race.18 Though the agreements are supposed to

encourage student “engage[ment] in uncomfortable

conversations about race,” one of the terms of the

agreements is to “[c]hallenge color ‘blindness.’”19

Contra Plessy v. Ferguson, 163 U.S. 537, 559 (1896)

(Harlan, J., dissenting) (“Our Constitution is colorblind, and neither knows nor tolerates classes among

citizens.”).

Unsurprisingly given the broad scope of the “hatebias” form, the district recently reported “a 400%

increase in reported incidents compared to the

previous five years”—about one per school day.20

Ironically, even as the district purports to care about

“demeaning” statements based on a student’s

characteristics, it has implemented mandatory

LGBTQ+ readings for pre-kindergarten through

second grade students—and now forbids parental

17 Montgomery County Public Schools, Antiracist System Action

Plan (May 2023), https://perma.cc/R7SQ-7C7W.

18 Montgomery County Public Schools, Suggestions for Handling

Challenging Situations, https://perma.cc/4FPH-KWE9 (last

visited Sept. 8, 2023).

19 Id.

20 Heather M. Ross, Montgomery County School Bias Incidents

Up 400%, Washington Jewish Week (Aug. 9, 2023),

https://perma.cc/8VYM-SPRZ.

9

notification and opt-outs. For instance, one book

assigned to pre-K classrooms, the Pride Puppy!,

“chronicles a family’s visit to a ‘Pride Day’ parade and

their search for a runaway puppy, using the letters of

the alphabet to illustrate what a child might see at a

pride parade.”21 A “Search and Find Word List” at the

end of the book invites children to search for things

they might see at a pride parade, including a “[drag]

king”

and

“[drag]

queen,”

“leather,”

and

22

“underwear.”

Notwithstanding the district’s purported hate-bias

policy, if a student voices the “wrong” religious views

on gender issues, teachers are encouraged to tell the

class that “not everyone believes that,” call the

student’s views “hurtful” and “negative,” and say that

they do not “understand” identity.23 What the district

appears to care about, then, is enforcing its own

ideology through the hate-bias system—and silencing

dissenting voices.

Over in the Chicago Public Schools, students are

also urged to report “bias related incident[s],” defined

as “language and/or behavior that causes harm which

is motivated by bias against a person because of their

actual or perceived identities.”24 One example

provided is if “[a] student makes jokes disparaging the

21 Mahmoud v. McKnight, No. 23-cv-1380, 2023 WL 5487218, at

*2 (D. Md. Aug. 24, 2023).

22 Id. at *5.

23 Id. at *7.

24 Chicago

Public

Schools,

Bias

Report

Forms,

https://perma.cc/Y8NR-8JPW (last visited Sept. 7, 2023).

10

neighborhood their classmate lives in.”25 Reports may

be made anonymously and may result in

“[d]isciplinary responses,” “[a] Restorative Justice

Peer Conference,” and “[r]egular appointments with

[a] school social worker or counselor.”26

In the San Francisco Unified School District,

students are told to report “hate-motivated” comments

or “bias incidents,” which are defined simply as

“biased conduct, speech, or expression that has an

impact.”27 Complaints are filed with the district’s

Office of Equity, which can perform “a full

investigation” but only must “inform the victimstudent/family regarding the status of the

investigation.” Students allegedly “exhibiting ‘hatemotivated’ behavior” will “be subject to discipline” and

“provided counseling and appropriate sensitivity

training and diversity education.”28

Until sued by Parents Defending Education, the

Wellesley Public Schools in Massachusetts had a bias

response policy that defined “bias incident,” in part, as

when “someone treats another person differently or

makes an offensive comment because of their

membership in a protected group.”29 Complainants

25 Id.

26 Id.

San Francisco Unified School District & County Office of

Education, Administrative Regulation 5145.9 on Hate-Motivated

Behavior (June 6, 2022), https://perma.cc/Z5CT-DG8J.

28 Id.

29 Plaintiff’s Memorandum in Support of its Motion for a

Preliminary Injunction, Parents Defending Education v.

Wellesley Public Schools, No. 21-cv-11709, Doc. 7, at 8 (E.D.

Mass. Oct. 22, 2021).

27

11

(who could be anonymous) could report bias incidents

based on many characteristics, including “[p]olitical

affiliation” and “[o]ther.”30 Students who used words

like “normal” and “regular” to “refer to one person or

way of life as opposed to another” purportedly engage

in “biased” speech because they “perpetuate[]

hegemony.”31 Using words like “forefathers, mankind,

and businessman” apparently exhibits bias because

the words “deny the contributions (even the existence)

of females.”32

Unsurprisingly,

one

middle-school

student

explained that they stopped speaking in class after

watching other students repeatedly report their

classmates to school authorities for engaging in

“biased” speech when they shared their political

views.33 The student was, in their own words, “shamed

into silence” by the policy because “if you’re not in full

agreement with what the teachers and most students

think, you get a target on your back.”34

Though Wellesley Public Schools trimmed back its

bias policy to purportedly exclude political views, it

still today defines “bias” to include things like:



“[D]escribing

Science’”;

30 Id. at 9.

31 Id. at 10.

32 Id.

33 Id.

34 Id.

‘Ten

Black

Achievers

in

12



Describing Native Americans “as ‘roaming,’

‘wandering,’ or ‘roving’ across the land”;

and,



“A music book with an eye-catching,

multiethnic cover that projects a world of

diverse songs and symphonies but in

actuality contains largely traditional white

male composers.”35

Other examples of bias-response teams abound. In

D.C. Public Schools, students and others are

repeatedly told that “[n]o matter the intent, report the

incident.”36 “Bias” is vaguely and circularly defined as

“conduct, speech or expression motivated, in whole or

in part, by bias, prejudice, or discrimination.”37

“Examples include racism, sexism, disability

discrimination or any other form of alleged

discrimination or bias, regardless of intent.”38 D.C.

also urges students to report any other “[u]nfair

treatment.”39 The “Comprehensive Alternative

Resolution & Equity Team” will then investigate the

complaint, and the “Central Equity Response Team”

will give “restorative guidance” and other discipline

35 Wellesley

Public Schools, Seven Forms of Bias,

https://perma.cc/27MA-8QHY (last visited Sept. 7, 2023).

36 D.C. Public Schools, Speak Up! How to Report Incidents of

Hate/Bias, https://perma.cc/DR9E-A6P3 (last visited Sept. 7,

2023).

37 Id.

38 Id. (emphasis added).

39 Id.

13

“aligned with the DCPS Equity Framework” to the

offending student.40

Jefferson County Public Schools in Kentucky

encourages anonymous reports if anyone “see[s] or

suspect[s] harmful or unethical behavior.” “Unethical”

is undefined.41 Though the school district provides as

one example “[r]acial intolerance,” it itself requires

“diverse” instruction—with “diverse” “defined as

pertaining to any and all cultures that are NOT

heterosexual, male-centered, white, Western, and/or

Christian.”42

Acalanes Union High School District in California

has a “Bias Incident Reporting System” for

anonymous reports of “acts of racism, bias, sexism,

microaggressions, etc.”43 “Microaggressions” are

defined as “everyday verbal, nonverbal, and

environmental slights, snubs or insults whether

intentional or unintentional,” and include a

“microinsult” (“[c]omment that communicates the

demographic group is not respected”) and a

“microinvalidation” (“[c]omment or action that

40 D.C. Public Schools, Protocol for Responding to Incidents of

Hate and Bias (Apr. 15, 2021), https://tinyurl.com/3exupvsz.

41 Jefferson

County Public Schools Compliance Hotline,

https://perma.cc/H3MU-ZPSC (last visited Sept. 7, 2023).

42 Jefferson County Public Schools, The Affirming Racial Equity

Tool, https://perma.cc/75FD-SBDR (last visited Sept. 7, 2023).

43 Acalanes Union High School District, Bias Incident Reporting

System, https://perma.cc/PSS8-8BSH (last visited Sept. 7, 2023).

14

dismisses the

members”).44

historically

disadvantaged

group

Webster Groves School District in Missouri uses a

“Bias Incident Reporting” system and “encourage[s]”

reporting “any incident[] that negatively impact[s] our

campus culture” “that was done to you or to someone

else.”45 Not only can reports be from a third-party,

they can also be anonymous.46

Finally, Plymouth-Canton Community Schools in

Michigan encourages reports of bias incidents

(including those based on “height” and “weight”) by

“those within the School District community as well as

third parties, who feel aggrieved.”47 “The identity of

the [person] who files the report or complaint will not

be voluntarily shared with the alleged perpetrator(s),”

who will face “prompt and appropriate remedial

action” “up to expulsion.”48

Common themes emerge in these examples, of

which dozens more exist. Schools implement vague

policies administered by an equity officer empowered

to conduct any investigation and punish students for

perceived slights against others, no matter the

students’ intent or their statements’ factual basis.

Acalanes Union High School District, Equity Definitions,

https://perma.cc/F8GL-S7GY (last visited Sept. 7, 2023).

45 Webster Groves School District, Bias Incident Reporting,

https://perma.cc/G29A-4L9V (last visited Sept. 7, 2023).

46 Id.

47 Plymouth-Canton Community Schools, P-CCS Hate and Bias

Reporting Form, https://perma.cc/U8NK-MBMP (last visited

Sept. 7, 2023) (emphasis added).

48 Id.

44

15

II.

K-12 bias-response teams chill speech.

As these examples show, bias-response teams

pervade K-12 schools, and they operate in ways that

suppress protected speech. They threaten young

schoolchildren with punishment based on vague policy

terms administered with minimal process by Office of

Equity zealots. The inevitable result is that

schoolchildren curb their speech to avoid both

potential discipline and the pervasive, intentional

cultural shaming that attaches to any student who

unknowingly

commits

some

perceived

“microinvalidation.” In these ways, bias-response

teams objectively silence speech protected by the First

Amendment.

“[A] principal function of free speech under our

system of government is to invite dispute. It may

indeed best serve its high purpose when it induces a

condition of unrest, creates dissatisfaction with

conditions as they are, or even stirs people to anger.”

Texas v. Johnson, 491 U.S. 397, 408–09 (1989)

(cleaned up). “[T]he point of all speech protection is to

shield just those choices of content that in someone’s

eyes are misguided, or even hurtful.” Snyder v. Phelps,

562 U.S. 443, 458 (2011) (cleaned up). Thus, “the free

speech clause protects a wide variety of speech that

listeners may consider deeply offensive, including

statements that impugn another’s race or national

origin or that denigrate religious beliefs.” Saxe v. State

Coll. Area Sch. Dist., 240 F.3d 200, 206 (3d Cir. 2001)

(Alito, J.). “[T]he government may not prohibit

speech . . . based solely on the emotive impact that its

offensive content may have on a listener.” Id. at 209

(citing Boos v. Barry, 485 U.S. 312, 321 (1988)).

16

That is because “[t]he First Amendment embodies

our choice as a Nation that, when it comes to such

speech, the guiding principle is freedom—the

unfettered interchange of ideas.” Az. Free Enter.

Club’s Freedom Club PAC v. Bennett, 564 U.S. 721,

750 (2011) (cleaned up). The First Amendment is

founded on “the hypothesis that speech can rebut

speech, propaganda will answer propaganda, [and]

free debate of ideas will result in the wisest

governmental policies.” Dennis v. United States, 341

U.S. 494, 503 (1951).

Censoring speech “deprives the disadvantaged

person or class of the right to use speech to strive to

establish worth, standing, and respect for the

speaker’s voice.” Citizens United v. FEC, 558 U.S. 310,

340–41 (2010). It also “deprive[s] the public of the

right and privilege to determine for itself what speech

and speakers are worthy of consideration.” Id. at 341.

“There is an equality of status in the field of ideas, and

government must afford all points of view an equal

opportunity to be heard.” Carey v. Brown, 447 U.S.

455, 463 (1980) (cleaned up).

By and large, the First Amendment applies in K12 schools. “[S]tudents do not ‘shed their

constitutional rights to freedom of speech or

expression,’ even ‘at the school house gate.’” Mahanoy,

141 S. Ct. at 2044 (quoting Tinker v. Des Moines Indep.

Cmty. Sch. Dist., 393 U.S. 503, 506 (1969)). “This has

been the unmistakable holding of this Court for” a

century. Tinker, 393 U.S. at 506. “[P]ublic school

students, like all other Americans, have the right to

express ‘unpopular’ ideas on public issues, even when

those ideas are expressed in language that some find

17

‘inappropriate’ or ‘hurtful.’” Mahanoy, 141 S. Ct. at

2049 (Alito, J., concurring) (quoting id. at 2046–47

(majority opinion)). “[E]xpression that does not

interfere with a class (such as by straying from the

topic, interrupting the teacher or other students, etc.)

cannot be suppressed unless it ‘involves substantial

disorder or invasion of the rights of others.’” Id. at

2053 (quoting Tinker, 393 U.S. at 513).

As shown in the above examples, speech burdened

by bias-response regimes extends far beyond the

limited categories that schools may regulate, and

includes practically any perceived slight. And it makes

little difference to the First Amendment analysis

whether the school district’s DEI office might

ultimately decide not to formally discipline a student

who allegedly commits a “microinsult.” It is the very

existence of the bias-response regime—with its vague

terms, broad administrative discretion, and serious

consequences—that burdens speech.

The First Amendment stands against any

governmental effort to burden the free speech of

individuals—even if that action falls short of outright

suppression. “[T]he First Amendment cannot tolerate”

government actions that “create a strong impetus

toward self-censorship.” Rosenbloom v. Metromedia,

Inc., 403 U.S. 29, 50 (1971) (plurality opinion),

abrogated on other grounds by Gertz v. Robert Welch,

Inc., 418 U.S. 323 (1974). Indeed, “avoid[ing] the

hazard of self-censorship” is an important aspect of

First Amendment law. Counterman v. Colorado, 143

S. Ct. 2106, 2116 (2023); see Sorrell v. IMS Health Inc.,

564 U.S. 552, 566 (2011) (“Lawmakers may no more

18

silence unwanted speech by burdening its utterance

than by censoring its content.”).

“Under

some

circumstances,

indirect

‘discouragements’ undoubtedly have the same coercive

effect upon the exercise of First Amendment rights as

imprisonment, fines, injunctions or taxes.” Am.

Commc’ns Ass’n v. Douds, 339 U.S. 382, 402 (1950).

For that reason, the First Amendment generally

“protects against indirect coercion or penalties,” “not

just outright prohibitions” Carson v. Makin, 142 S. Ct.

1987, 1996 (2022) (cleaned up); see Trinity Lutheran

Church of Columbia, Inc. v. Comer, 582 U.S. 449, 463

(2017) (same). The government need not impose direct

sanctions—or even “list specific consequences”—for

there to be “a constitutional violation.” Kennedy v.

Warren, 66 F.4th 1199, 1213 (9th Cir. 2023) (Bennett,

J., concurring).

The dangers of indirect speech coercion are

especially severe in schools. This Court has

consistently recognized that “there are heightened

concerns with protecting freedom of conscience from

subtle coercive pressure in the elementary and

secondary public schools.” Kennedy v. Bremerton Sch.

Dist., 142 S. Ct. 2407, 2451 (2022) (Sotomayor, J.,

dissenting) (quoting Lee v. Weisman, 505 U.S. 577, 592

(1992)). “The State exerts great authority and coercive

power through mandatory attendance requirements,

and because of the students’ emulation of teachers as

role models and the children’s susceptibility to peer

pressure.” Edwards v. Aguillard, 482 U.S. 578, 584

(1987).

This pressure is even more prevalent today in both

K-12 schools and higher education. The combination

19

of

ideologically-driven

administrators49

and

consultants—usually part of the “DEI Industry”50—

and universal internet communication means that the

risks of chilling speech “are heightened in the 21st

century and seem to grow with each passing year.”

Americans for Prosperity Found. v. Bonta, 141 S. Ct.

2373, 2388 (2021). “[A]nyone with access to a

computer” (id.) can cause great personal misery to

non-conformists. Bias-response teams foster this type

of outside pressure, as almost all the examples

described above encourage administrators to involve

community members and groups—more appendages

of the DEI Industry—in designing “solutions” and

reeducation regimes. Contra Norwood v. Harrison,

413 U.S. 455, 465 (1973) (The government “may not

induce, encourage or promote private persons to

accomplish what it is constitutionally forbidden to

accomplish.”).

In sum, “we have chosen” “[a]s a Nation” “to protect

even hurtful speech.” Snyder, 562 U.S. at 461. “[T]he

public expression of ideas may not be prohibited

merely because the ideas are themselves offensive to

some of their hearers.” Street v. New York, 394 U.S.

576, 592 (1969). Of course, “[b]ullying and severe

harassment are serious (and age-old) problems,”

See generally Parents Defending Education, IndoctriNation

Map, https://defendinged.org/map/ (last visited Sept. 7, 2023).

50 Conor Friedersdorf, The DEI Industry Needs to Check its

Privilege, The Atlantic (May 31, 2023), https://perma.cc/F754BRCB; Jesse Singal, What if Diversity Training is Doing More

Harm Than Good?, N.Y. Times (Jan. 17, 2023),

https://www.nytimes.com/2023/01/17/opinion/dei-trainingseffective.html.

49

20

Mahanoy, 141 S. Ct. at 2057 (Alito, J., concurring),

and such behavior should not be tolerated in our

schools. But bullying can be (and has been) addressed

through means other than speech-suppressing biasresponse teams. Bias-response teams are used by

diversity and equity officers to suppress disfavored

speech and pressure students to conform to the

prevailing orthodoxy. That is both the intent and

result of bias-response teams. And that is why they

contravene the First Amendment.

III. Students subject to bias-response regimes

have standing.

For these reasons, students subject to the typical

bias-response team regime easily have standing to

challenge it, no matter if the team itself can impose

formal discipline. Bias-response teams exist to police

“messages and behaviors” that convey messages.51

Vulnerable schoolchildren know that anyone—even

someone who does not attend the school—may tattle

on them (anonymously), triggering an (often secret)

investigation in which others are informed of the

allegations and which may result in (at minimum)

reeducation and “healing circles.” This “apparatus of

censorship” self-evidently and objectively chills a

young person’s speech. Freedman v. Maryland, 380

U.S. 51, 57 (1965). Such apparatuses are “always

fraught with danger and viewed with suspicion,” id.,

and their use on students subject to a school’s

oversight and control only exacerbates the dangers.

51 Willoughby, supra note 4, at 4.

21

Each aspect of the bias-response team regime

confirms the objective chill on speech. Start with its

vague terms. As shown above, the typical definitions

of key words—“bias incident,” especially—are either

non-existent or limitless. And “vague [rules] chill

speech” because “[p]eople of common intelligence must

necessarily guess at [the rule’s] meaning and differ as

to its application.” Citizens United, 558 U.S. at 324; see

Reno v. ACLU, 521 U.S. 844, 871–72 (1997) (“The

vagueness of such a regulation raises special First

Amendment concerns because of its obvious chilling

effect on free speech.”). Vague rules also give rise to

the “dangers of arbitrary and discriminatory

applications.” Vill. of Hoffman Ests. v. Flipside, 455

U.S. 489, 498 (1982).

On that topic, next consider the administration of

the bias-response regime. Sole discretion usually

resides in some administrator in an office of diversity

and equity. That administrator is judge, jury, and

executioner. And “[i]n the area of freedom of

expression it is well established that one has standing

to challenge a statute on the ground that it delegates

overly broad licensing discretion to an administrative

office.” Freedman, 380 U.S. at 56. The bias-response

process has no review or other “sufficient safeguards

for confining the censor’s action to judicially

determined constitutional limits.” Id. at 57.

Last consider the discipline meted out by the

equity officer. The courts below found it pivotal that

the bias-response team at Virginia Tech could only

(directly) “‘invite’ students to participate in a

‘voluntary conversation’ about the alleged bias or refer

reports elsewhere.” App. 16. Being referred to the

22

police is hardly a trivial matter. And the “healing

circles” or “voluntary conversations” that the biasresponse teams tout as “restorative” are ample

punishments in themselves. As Judge Wilkinson

explained, “[t]his is an invitation from the

[administrator] to the student to come to the

[administrator’s] office, not for tea or coffee, but for the

express purpose of discussing the student’s speech.”

App. 53 (dissenting opinion). Faddish “nomenclature

does not alter reality and does not contradict the

proscriptive nature of the policies.” Speech First, Inc.

v. Fenves, 979 F.3d 319, 333 (5th Cir. 2020). For the

threatened student, “[b]etter to avoid the whole darn

thing by keeping one’s mouth shut.” App. 54

(Wilkinson, J., dissenting).

The Fourth Circuit’s decision to deny standing to

students subjected to bias-response regimes is

egregiously wrong. To hold that such regimes could

not objectively chill speech is to miss their whole point:

policing ideas on America’s campuses. The erroneous

holding below deprives young people of the ability to

vindicate their First Amendment right to speak freely

without threat of government censorship. This Court’s

review is needed.

CONCLUSION

The Court should grant the petition.

23

Respectfully submitted,

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay Street

#22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

Counsel for Amicus Curiae

SEPTEMBER 18, 2023