PDE Files Supreme Court Amicus Brief in Speech First Inc. v. Sands

“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 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, age inappropriate 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 ever present 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 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.