Issued in December 2021, the University of Houston’s (UH) new anti-discrimination policy prohibits students from engaging in “harassment” of members of a “Protected Class,” noting that even “[m]inor verbal and nonverbal slights, snubs, annoyances, insults, or isolated incidents including, but not limited to microaggressions,” could constitute a violation subject to disciplinary action.
Speech First, a membership organization advocating for freedom of speech on college campuses, has filed a lawsuit in the U.S. District Court in Houston on behalf of three students who say the policy has a chilling effect on protected speech.
While the students represented are unnamed because they say they fear retribution on campus, the lawsuit asserts they are unwilling to express their views out of fear of investigation and punishment but wish to engage in intellectual discussion and debate on a variety of current topics.
“When another classmate or another member of the university community voices contrary views about affirmative action, abortion, gender identity, the nuclear family, or immigration, [the student] wants to point out the flaws in their arguments and convince them to change their minds,” reads the complaint.
In an interview with The Texan, Speech First Executive Director Cherise Trump explained that the university’s policy has created an environment in which students are afraid to express their views.
“We are not looking at specific issues or incidents, but at policies that affect the entire free speech environment on campus,” said Trump. “Those that chill student speech and make them feel that they can be punished if they speak up or try to express themselves.”
The Supreme Court’s “chilling effect doctrine” does not require proof of punishment against individuals but acknowledges that the effect could be passive and still establish a deterrence and a violation of the constitutional right to free speech.
“The university has a reporting system that allows students to report anonymously on one another,” said Trump. “So, students feel that if they speak up about say transgender issues or abortion issues, then it is possible they might offend someone and then be investigated.”
The harassment policy asserts that the university may investigate incidents sent via email or posted on virtual platforms and that it has jurisdiction to punish students for infractions committed either on or off campus.
Additional examples of harassment UH policy cites are those that “include but are not limited to: epithets or slurs, negative stereotyping, threatening, intimidating, or hostile acts, denigrating jokes and display or circulation (including through email or virtual platforms) of written or graphic material in the learning, living, or working environment.”
While many colleges point to a broad interpretation of Title IX, a part of a 1972 law prohibiting discrimination based on sex in any educational institution receiving federal funds, the Speech First lawsuit argues that the Supreme Court has ruled public colleges are constrained by the First Amendment.
In speaking with a student group in April of 2021, however, UH Deputy General Counsel Jeffery Palmer allegedly told students that if they say “something about a race, a religion, a gender,” they were violating the university’s anti-discrimination and anti-harassment policies.
“So that’s where, even though it’s protected under free speech, it actually…isn’t permitted by the University,” said Palmer, according to the Speech First lawsuit.
Prior to the administration’s issuance of the revised anti-discrimination policy, controversy erupted at UH last fall when members of the Student Government Association (SGA) attempted to recall the association’s president after accusing him of making “transphobic, homophobic, and sexist comments.” Although the recall vote was nullified, the student was required to complete “four diversity workshops” offered by the school’s Center for Diversity and Inclusion.
In 2016, a student serving as the SGA vice-president was suspended from her office, required to attend a diversity workshop, write a “reflection letter,” and publicly present it because she posted on social media, “Forget #BlackLivesMatter; More like #AllLivesMatter.”
This week, the school news website posted a video purportedly of two UH volleyball players driving past a tree in Columbia, Texas where a lynching took place in 1935. Although the video has no sound, a caption reads “this is the hanging tree where we used to hang people.” A UH spokesperson said in a statement that the school would follow “internal policies as well as all applicable local, state, and federal laws” in assessing the situation.
In December, the Foundation for Individual Rights in Education (FIRE) listed UH’s Downtown campus as one of three Texas schools with a “red light” warning for free speech and has since expanded the warning to the main campus due to the anti-discrimination policy. Other Texas schools FIRE gave a red light to are Rice University and the University of Texas-Dallas, but Texas A&M was the only in-state school to earn a “green light” last year.
Colleges and universities in Texas and across the nation have increasingly come under fire for stifling free speech and the free exchange of controversial ideas in recent years, and last year a diverse group of professors and advocates announced the formation of the new University of Austin with a commitment to ideological diversity and academic freedom.
Trump however says her organization is not ready to give up on promoting free speech in higher academia and Speech First is asking courts to intervene at a number of schools implementing restrictive policies.
A Speech First lawsuit resulted in the University of Texas dismantling a campus speech investigative body in 2020, and last year the group filed a suit now pending before the 11th Circuit Court of Appeals against the University of Central Florida for its policies and creation of a “bias response team.”
Last year, the University of Michigan settled with Speech First after a similar challenge to its speech code, while the organization has another lawsuit pending against Virginia Tech.
Speech First has motioned for a temporary injunction to block UH’s policy while the case is pending. The case names UH Chancellor and President Renu Khator, several administrators, and the entire board of regents including Tilman Fertitta, the owner of the National Basketball Association team, The Houston Rockets.
U.S. District Court Judge Lynn Hughes has set a hearing in the case for May 16, 2022.
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Holly Hansen
Holly Hansen is a reporter for The Texan living in Harris County. Her former column, “All In Perspective” ran in The Georgetown Advocate, Jarrell Star Ledger, and The Hill Country News, and she has contributed to a variety of Texas digital media outlets. She graduated summa cum laude from the University of Central Florida with a degree in History, and in addition to writing about politics and policy, also writes about faith and culture.
