The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
First Amendment Challenge to Texas State University Speech Code Can Go Forward
From today's Fifth Circuit decision in Speech First, Inc. v. McCall, written by Judge James Ho and joined by Judges Kyle Duncan and Andrew Oldham:
"Education should not be intended to make people comfortable; it is meant to make them think." Comm. on Freedom of Expression, Univ. of Chicago, Report of the Committee on Freedom of Expression (2015) (quoting President Hanna Holborn Gray).
But according to Speech First, Texas State University has adopted a harassment policy that reflects the opposite principle—and thus conflicts not only with basic pedagogical principles, but also the First Amendment.
Rather than welcome debate, the University prohibits "unwelcome verbal" or "written … conduct." The policy does not define what is "unwelcome," nor what constitutes "verbal" or "written" "conduct." But it appears to forbid speech that some individuals or groups could find uncomfortable—namely, speech about "race, color, national origin, age, sex, religion, disability, veterans' status, sexual orientation, gender identity, or gender expression" that some "reasonable person" could find "offensive" or "hostile."
Speech First contends that this policy will be used to target politically disfavored speech on sensitive topics like abortion, immigration, racial preferences in educational admissions, and transgender ideology. So it brought this suit challenging the policy under the First Amendment.
The district court agreed with Speech First's constitutional concerns. The court noted that Texas State had a "real problem," and that the policy had "critical First Amendment issues," because it would stifle "unpopular opinions" and prevent "students from providing their viewpoint to other students." The court even went so far as to say the policy would create "a communist society." In sum, Texas State was "going to lose" on the merits.
But the district court nevertheless refused to issue a preliminary injunction. Instead, the court pressured Texas State officials to amend the policy. University officials vigorously defended the policy before the district court—and continue to do so to this day. But counsel for the University eventually relented and reluctantly amended its policy. The district court then dismissed Speech First's motion as moot.
We disagree with the ruling below that the University's change of policy renders the request for a preliminary injunction moot….
Speech First is a national membership organization that represents students at Texas State University who wish to voice their perspectives on abortion, immigration, the use of race in educational admissions, homosexuality, and gender identity. Two students believe that abortion and illegal immigration are wrong, that it's racist to take race into account in educational admissions, and that the "gender spectrum" is fictional. A third student agrees with these views and additionally believes that marriage is between a man and a woman. All three students want to engage in "lively, fearless debate and deliberation" with their classmates on these topics. But they fear that they will be disciplined under Texas State's harassment policy. So they reluctantly self-censor….
Texas State argues that Speech First lacks standing to challenge its policy, because the policy doesn't actually prohibit the students from saying what they would like to say, and there's no substantial threat of future enforcement. We disagree. In Speech First, Inc. v. Fenves (5th Cir. 2020), this court concluded that Speech First had standing to sue on behalf of students challenging a speech code at the University of Texas at Austin. We see no reason to reach a different conclusion here….
Texas State contends that the request for a preliminary injunction is moot because the University has voluntarily amended the challenged policy.
To prevail on this theory, however, the University must meet a "stringent" standard. To begin with, "[m]ere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave the defendant free to return to his old ways." The University must additionally show that "subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur."
The University's mootness theory fails on multiple levels. For starters, University officials didn't voluntarily cease their challenged conduct— they backed down only because the district court pressured it to do so.
And even assuming that the doctrine of voluntary cessation applies in this case, Texas State is unable to meet that doctrine's "stringent" standard. Recall that, in Fenves, we adopted a three-factor test for determining whether a university has voluntarily ceased enforcement of a challenged speech code in a manner sufficient to render the dispute moot. We concluded that the dispute was not moot based on "(1) the absence of a controlling statement of future intention; (2) the suspicious timing of the change; and (3) the university's continued defense of the challenged policies."
Following Fenves, we find that all three factors cut against Texas State and preclude a determination of mootness.
First, "the University has not issued a controlling statement of future intention." Here, as in Fenves, Texas State represented to the court that it will not revert to its old policy. But here, as in Fenves, the University has presented no sworn testimony to that effect. Moreover, here, as in Fenves, there's "no evidence" that Texas State's statements to the court will indeed "control[] whether the University will restore the challenged [policy]" "during or after" the "tenure" of the University's present leadership.
Second, the amendment of Texas State's policy was suspiciously timed. The old policy was on the books well before Speech First sued. Here, as in Fenves, "the [U]niversity changed its policies after the complaint was filed." In fact, in this case, the University amended its policy only in response to judicial pressure. So we reach the same conclusion here as we did in Fenves: "The University does not explain the expedient timing of the policies' removal."
Finally, here, as in Fenves, "the University is still defending the legality of its original policies." Texas State officials vigorously defended their policy before the district court. And they continue to do so to this day.
Accordingly, the motion for a preliminary injunction is not moot…. We vacate and remand for the district court to consider the motion for preliminary injunctive relief.
Cameron Thomas Norris, James Hasson, John Michael Connolly, and Thomas Samuel Vaseliou (Consovoy McCarthy PLLC) represent plaintiff. Thanks to Michael Smith (Smith PLLC) for the pointer.
