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Give 'em the moot: Courts help red-state universities block conservative students' speech suits

Fifth Circuit appeal only draws two friend-of-the-court briefs despite judge letting Texas State off the hook for harassment policy he called unconstitutional. ACLU sides with Oklahoma State students.

Published: January 26, 2024 11:00pm

When U.S. District Judge David Ezra looked at Texas State University's policy on discriminatory harassment, which students challenged as unconstitutional, he gave it a choice: rewrite the policy or it will be struck down and the university will "really lose, big time," on appeal.

The university complied and the judge ruled the case moot. But the students read the revised policy better than Ezra, according to their lawyers.

Speech First filed its opening brief with the 5th U.S. Circuit Court of Appeals that seeks oral argument on behalf of its student members, saying Ezra reversed the burden of proof by credulously accepting Texas State's promise that it wouldn't reinstate the old policy and requiring Speech First to prove otherwise to secure an injunction.

The judge also didn't notice the new policy is at least partly unconstitutional or that it's apparently superseded by even more unconstitutional systemwide policies, they claim.

"Texas State University does not comment on active litigation," spokesperson Sandra Pantlik told Just the News when asked for its response.

This is the first 5th Circuit case to consider the constitutionality of such a policy, "a tried-and-true method of chilling student speech," and it "raises important questions of voluntary cessation" and how lower courts are applying its 2020 precedent in Speech First's lawsuit against the University of Texas, Speech First's brief says.

That circuit panel called the UT bias response team the "clenched fist in the velvet glove of student speech regulation," leading UT to quickly dismantle the team to settle the suit.

This month's appeal nonetheless only drew two friend-of-the-court briefs by the court's deadline Tuesday.

"January is an awkward month for orgs to prepare briefs while returning from holiday vacations, closing out 2023, and what not," Speech First President Cherise Trump told Just the News in an email.

Its similar lawsuit against Oklahoma State University at the 10th Circuit, which heard oral argument in November but hasn't ruled, drew five supportive briefs including from the ACLU, Trump noted. 

All objected to U.S. District Judge Bernard Jones' dismissal of the OSU suit on the basis of the students' anonymity, arguing he misread a Supreme Court precedent on legal standing that had to do with "imminent and concrete" injury, not anonymity.

The ACLU, which has rarely defended conservative speech since blowback for representing Unite the Right rally organizers in 2017, and its Oklahoma affiliate often sue on behalf of "individuals who hold unpopular or dissident views or are otherwise vulnerable to adverse government action, such as deportation or arrest," their joint brief says

The Chamber of Commerce and American Bankers Association said they sue "government agencies with enormous authority and discretion" over their unnamed members to protect them from retaliation, such as the IRS singling out self-identified "tea party" or "patriots" groups based on the "perception" they were likely to oppose Obama administration policies.

"If the mere perception of hostility to the sitting administration is enough to trigger this type of government chicanery, there can be little doubt that actual resistance to government policy in the form of a lawsuit could subject an individual or business to retaliation," their joint brief says.

Texas State was the subject of a vague complaint to the Trump administration's "free speech hotline" – surreptitiously shuttered by his successor in July 2021 – about its "shutdown of speech and lack of Academic Freedom and persecution of conservatives."

It has also required would-be teachers to "analyze the construct of whiteness and its relationship to privilege and equity for students" in their coursework, though the course appears to have been last offered two years ago.

Speech First's anonymous members at Texas State hold views on abortion, gender identity, "in-state tuition benefits for illegal aliens" and border policy that are "unpopular, controversial, and in the minority" on campus, its 5th Circuit brief says. Anyone can report them for discriminatory harassment, and punishment includes expulsion.

The original policy prohibited "unwelcome verbal, written, graphic, or physical conduct," on the basis of protected traits, that is "sufficiently severe or pervasive so as to interfere" with a person's employment or education and create an "environment that a reasonable person would find intimidating, offensive, or hostile."

The Supreme Court's Davis standard for student harassment is "severe, pervasive, and objectively offensive" — requiring all three prongs rather than either-or — that "denies … equal access to education."

Two days before Judge Ezra's deadline for a revised policy, Texas State "plucked" a policy it found from Speech First's settlement with the University of Houston that, crucially, followed an injunction against the old policy and preserved Speech First's right to challenge the new policy, the brief says.

It gives students the Supreme Court standard but employees the either-or standard: harassment "severe or pervasive enough to alter" workplace conditions "and create a hostile or abusive working environment." 

Texas State hasn't even explained how it's not superseded by two either-or system policies, Speech First said: "sufficiently severe, persistent, or pervasive" sexual harassment that "interferes" with education, and "extreme or outrageous" racial comments that might "humiliate" and "reasonably cause" students "severe emotional distress."

The Alliance Defending Freedom and Manhattan Institute, which says its scholars routinely face "protest, shutdown, and cancelation" in campus speaking gigs, filed a joint friend-of-the-court brief supporting the students.

It reviews ADF's litany of victories in university speech cases, including the Supreme Court precedent Uzuegbunam and others invalidating no-contact orders that involve "non-verbal communications" and extend off-campus.

Campus speech codes "parallel some of the world’s most oppressive regimes," as when German students under Nazi rule became "increasingly radicalized and regularly denounced both their professors and their peers for perceived failures to follow the Nazi Party’s ideology," the brief says.

"These examples cast recent events on American campuses in a particularly troubling light," such as Stanford law students "jeering, stamping, and howling" to stop 5th Circuit Judge Kyle Duncan from speaking last year. The diversity dean who deplatformed Duncan stepped down months later.

"Politics and social influence are part of the reason" universities are reserving sexual orientation, gender identity and gender expression "for special protection," the Foundation for Moral Law's brief says, favoring an injunction against Texas State.

"By protecting these so-called oppressed groups in campus speech codes, liberal university administrations can lend legitimacy to these groups and, most significantly, help them silence their critics," it says.

It compared Texas State to the Texas prosecutor Lucas Babin, whom the 5th Circuit hit with an injunction last year for his "bad faith" child-pornography prosecution of Netflix for its controversial film "Cuties." 

The panel rejected Babin's mootness argument based on his voluntary cessation, saying he couldn't show it was "absolutely clear" that his prosecution of Netflix wouldn't resume after he dismissed the first indictment and issued a "new non-prosecution policy."

The Supreme Court also put a "heavy" burden on government defendants in an Environmental Protection Agency case in 2022 to show mootness based on voluntary conduct — which may "implicitly overrule" the 5th Circuit's allowance for "some solicitude," the brief says.

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