First Amendment

First Amendment Lawsuit Challenges U.T.-Austin's Prohibition of Speech That Is 'Offensive,' 'Biased,' 'Uncivil,' or 'Rude'

The university's definition of "harassment" is breathtakingly broad.


University of Texas at Austin

"Student A," a freshman at the University of Texas at Austin, is a self-described "Tea Party conservative" who "strongly supports Israel, believes in a race-blind society, supports President Trump, is pro-life, and supports the border wall."

"Student B," a U.T.-Austin sophomore who "considers himself a libertarian," "strongly supports the Second Amendment right to keep and bear arms, believes in a race-blind society, and has serious concerns that the 'Me Too' movement will erode due process."

"Student C," a U.T.-Austin freshman who "believes that the breakdown of the nuclear family has had many negative effects on society," is "strongly prolife," "strongly supports the Second Amendment," and "believes that Justice Kavanaugh was treated unfairly during his confirmation proceedings."

According to a First Amendment lawsuit filed by the group Speech First yesterday, all three students are afraid to speak their minds, not because their views are likely to be unpopular on campus, but because they worry that they will be investigated and punished by the university for violating its broad, vague rules prohibiting speech that strikes other students as "offensive," "biased," "uncivil," or "rude." That fear seems entirely credible when you consider U.T.-Austin's policies regarding "harassment" and "campus climate incidents," which read as if they were written by officials unfamilar with what federal courts have been saying about freedom of speech at state-sponsored universities for half a century.

U.T.-Austin's Institutional Rules on Student Services and Activities prohibits "verbal harassment," defined as "hostile or offensive speech" that a) "is not necessary to the expression" of a "political, religious, philosophical, ideological, or academic idea," b) "is sufficiently severe, pervasive, or persistent to create an objectively hostile environment that interferes with or diminishes the victim's ability to participate in or benefit from the services, activities, or privileges provided by the University," and c) "personally describes or is personally directed to one or more specific individuals." The rule says verbal harassment "may consist of threats, insults, epithets, ridicule, personal attacks, or…harassing sexual speech" and "is often based on the victim's appearance, personal characteristics, or group membership, including but not limited to race, color, religion, national origin, gender, age, disability, citizenship, veteran status, sexual orientation, gender identity or gender expression, ideology, political views, or political affiliation."

Some of the conduct covered by that rule could qualify as sexual harassment under federal education law or as criminal harassment under Texas law. But on its face, the ban also covers a lot of constitutionally protected speech. Note that the university decides what sort of speech is "necessary" to express a "political, religious, philosophical, ideological, or academic idea," and students have no way of anticipating what will qualify. The "hostile or offensive speech" need not be "severe, pervasive, and persistent," as under federal law; rather, any one of those will do. The requirement that the speech be "personally directed to one or more specific individuals" would cover all sorts of online and in-person conversations. Finally, the examples of bias includes not just the usual categories, any one of which could be the basis for dubious charges, but also "ideology, political views, or political affiliation," which means almost any heated political discussion could be considered verbal harassment.

If Student A got into an argument about the border wall with a Latino student, he could perceive her rhetoric as "hostile or offensive," maybe even "severely so," and surmise that it was based on his "national origin." If Student B condemned the Democratic Party's disrespect for the Second Amendment in a coversation with Democrats, that could easily be construed as "hostile or offensive speech" directed at people based on their "ideology, political views, or political affiliation." If Student C, God help him, made a passionate plea for protecting the lives of unborn children to a group of female students who support abortion rights, that too could qualify as verbal harassment, directed at them by virtue of their gender and their political views.

There are similar problems with the prohibition of "harassment" in U.T.-Austin's Residence Hall Manual, which applies to all students who live in university housing and want to continue doing so. "Members of an educational community should adhere to standards of civility and good taste that reflect mutual respect," the manual says. "A respectful environment is free of harassment, violence and verbal abuse….In an effort to foster an environment free from harassment and intimidation, Residence Life is committed to responding appropriately to acts of racism, sexism, heterosexism, ageism, ableism and any other force that seeks to suppress another individual or group of individuals."

U.T.-Austin also imposes "standards of civility" on communications through the university's email system or the internet access the school provides. The Office of the Chief Information Officer's Acceptable Use Policy demands that students "be civil" and "not send rude or harassing correspondence." Penalties for violating the Acceptable Use Policy include "verbal warning, revocation of access privileges, disciplinary probation, suspension from the university, [and] criminal prosecution."

Any hope that wise university officials will apply these sweeping rules judiciously seems misplaced in light of U.T.-Austin's Campus Climate Response Team (CCRT), which encourages students to file a report whenever they hear or read anything that offends them. "Campus climate incidents" can include "verbal harassment" on or off campus, remarks that "create a hostile or offensive classroom environment," statements by faculty members "perceived as derogatory and insensitive," "derogatory comments" on Facebook, "insulting and insensitive posts on social media or group chat apps," "insulting or insensitive online posts pertaining to race, gender identity, or sexual orientation," "a party with a racist theme," or "student organizations participating in traditions perceived as insensitive or based on stereotypes." Students can file reports anonymously, and they need not be witnesses to the incidents they describe.

Students who say or write things that offend others therefore may find themselves interrogated by CCRT investigators based on thirdhand reports from unidentified complainants. The CCRT does not have much power on its own. But if it investigates an incident and decides there may have been a violation of U.T.-Austin policies or criminal law, it refers the matter to university officials or police for further action. The CCRT received more than 1,000 reports during the last four academic years.

In this environment, it would not be surprising if students with unpopular views thought twice before stating them or worried about expressing them too forcefully or provocatively. The Speech First lawsuit notes several incidents that reinforced the impression that "certain viewpoints are not welcome on campus," including the university's condemnation of an "affirmative action bake sale" that prompted about 200 CCRT reports, the refusal of funding for a debate on inequality sponsored by the U.T. Objectivist Society, and the cancellation of a conservative group's "Catch an Illegal Immigrant" event after an administrator warned that it violated U.T.-Austin's "honor code."

The lawsuit argues that the university's policies are unconstitutionally vague and overbroad, chilling constitutionally protected speech. Speech First is asking the U.S. District Court for the Western District of Texas to issue injunctions barring U.T.-Austin from enforcing its speech restrictions or using the CCRT to investigate complaints about "campus climate incidents."