Student Surveillance Software: Speech First, Inc. v. Virginia Tech

Eric Rasmusen, Indiana University professor

Excerpt: Suppose a university has an online form where anyone can report something a student says in private conversation and the report goes into a special surveillance software database that the university bought from the Maxient company for that purpose. A Bias Response Team receives notice of the report, and sees that it is political speech protected by the First Amendment. The Team leaves the report in the student’s file, and asks the student to come to a voluntary meeting. Virginia Tech’s policy in a case like this was to: Invite them to engage in a voluntary conversation. . . . If a student fails to respond to this message, or declines to meet with our office, no further action is taken and the student faces no consequences of any kind.

Would such a bias response apparatus chill speech at the university? Speech First and three circuits say yes; Virginia Tech (Sands) and two circuits say no. Surveillance software is part of that, since they are what bias response teams rely upon, including the BIRT’s at Virginia Tech. Speech First’s cert petition [for Supreme Court review] says, “Precisely because speech codes are often struck down, universities have looked for subtler, more sophisticated ways to chill ‘offensive’ speech.”

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