When free speech advocacy group Speech First filed a complaint in court against the University of Texas (UT) for stifling speech policies, it was dismissed. An October 30 ruling at the U.S. Fifth Circuit Court of Appeals revived it, vacating the lower court’s judgment and holding that the UT students represented by Speech First had standing to sue — a major victory for Speech First, the students involved, and First Amendment supporters at the university.
The court called UT’s Campus Climate Response Team, responsible for investigating anonymous verbal harassment claims, “the clenched fist in the velvet glove of student speech regulation.”
Suits move slowly, and this two-year-old case has met this latest development after the primary defendant, former UT President Greg Fenves, moved to a new job at another college. Here’s the back-and-forth, summarized.
Speech First’s Complaint
Much of the debate centers around the vagueness of UT’s speech policies, considered censorious by Speech First and generous by the administrators. In their original complaint, Speech First argued that UT established speech-stifling rules and mechanisms to enforce them not only in their official schoolwide rules but also in dormitories and even online.
“The University of Texas at Austin and its officials have created an elaborate investigatory and disciplinary apparatus to suppress, punish, and deter speech that other students deem ‘offensive,’ ‘biased,’ ‘uncivil,’ or ‘rude,’” the lawsuit reads.
Eventually, arguments crystallized around four main pillars of UT policy: the Institutional Rules, the Acceptable Use Policy for using university computers, the Residence Hall Manual, and the Hate and Bias Incidents Policy and Campus Climate Response Team (CCRT).
The Institutional Rules included a long prohibition against verbal harassment, defined as any “hostile or offensive speech” that is directed at an individual, not necessary to the expression of an idea, or “sufficiently severe… to create an objectively hostile environment.”
The Acceptable Use Policy simply requires students “be civil” and “not sent rude or harassing correspondence.”
Under threat of disciplinary action, the Residence Hall Manual states a “commit[ment] to responding appropriately to acts of racism, sexism, heterosexism, cissexism, ageism, ableism, and any other force that seeks to suppress another individual or group of individuals.”
Finally, the Hate and Bias Incidents Policy encourages students to anonymously report threatened or actual “harassment” to the CCRT for investigation and possible action.
When Speech First failed at district court, the group filed for appeal in June 2019. Two months later, UT had unexpectedly changed its policies, softening the language of the Institutional Rules somewhat and copying it into the Acceptable Use Policy and Residence Hall Manual — a move that would later raise eyebrows in appeals court when the school argued Speech First’s claims were moot after the rule changes. The university did not change the Hate and Bias Incidents Policy or the role of the CCRT written therein.
The group made a number of requests for relief to the district court that boil down to two main actions against the university: declaratory judgments that UT’s rules violated the Constitution, and permanent injunctions to prohibit UT from enforcing its speech codes.
UT argued first and foremost that the administration never enforced its speech rules. UT won an initial victory in district court when Justice Lee Yeakel ruled that Speech First lacked the standing to sue for failing to show real, injurious enforcement of these policies against the students.
“The court finds that Speech First fails to present sufficient evidence that its members intend to engage in speech proscribed by the language of the challenged University policies… Nor does Speech First present sufficient evidence that its members’ self-censorship is objectively reasonable based on a credible threat of punishment under the University policies,” reads Yeakel’s ruling.
According to Yeakel, this left the court unable to determine whether the students had the intent to engage in speech that the university would prohibit.
After Speech First appealed to the Fifth Circuit — and after UT changed many of its rules — Fenves argued that the changes undercut Speech First’s complaints.
“[Because] the University consolidated and revised its policies governing expressive activities in time for the 2019-20 school year, Speech First’s challenges to the Use Policy and Residence Hall Manual are focused exclusively on language that was eliminated by the University’s recent revisions.”
Fenves continued to defend the original policies nonetheless, saying they aligned with the First Amendment.
“The plain text of the challenged policies makes clear that none of the challenged policies… prohibits any constitutionally protected speech in general,” his brief reads.
Fifth Circuit Results
The Fifth Circuit ruled in favor of Speech First and remanded the case back to district court, vacating the original district court judgment and siding against UT. The ruling sides with Speech First on two major points: the students’ complaints are not moot, and the students have standing to sue.
On mootness, despite the rule change, the court noted that the same unaltered definition of “harassment” lives on in the Hate and Bias Incidents Policy. Also noting the “suspicious” timing of UT’s alterations, as well as Fenves’ continued defense of the original policies, the court found that changing the rules did not affect the suit.
“A defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice,” the ruling reads, quoting from relevant case law.
On the issue of standing, the court found that the students represented by Speech First have planned to speak up but censored themselves to avoid a real threat of future enforcement by UT, even if Fenves’ claim that UT has never enforced the rules before is true.
“Fenves ultimately wraps the University in the flag of its policies’ paeans to the freedom of speech… University officials’ disavowals of any future intention to enforce [the rules] are compatible with, and simply reinforce, the open-ended language in those policies. The difficulty with such disavowals is that regulations governing ‘rude,’ ‘uncivil,’ ‘harassing,’ or ‘offensive’ speech can in fact cover speech otherwise protected by the First Amendment,” the ruling reads.
“If there is no intention to pursue discipline against students under these policies… why maintain the policies at all? … Surely [the text of the Institutional Rules] reasonably implies that the University will protect and enforce its verbal harassment policy as far as possible, but the distance to that horizon is unknown by the University and unknowable to those regulated by it… The CCRT, in some measure, represents the clenched fist in the velvet glove of student speech regulation.”
This means that Speech First effectively proved constitutional harm on the part of the university, thereby giving the organization standing to sue.
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