Free speech org suing Texas State says the university's policies violate students' rights

A free speech advocacy group is suing Texas State University over its policy that allegedly chills free speech. 

On Jan. 16, Speech First, an advocacy organization promoting free speech in higher education, filed a brief to the Fifth Circuit of Appeals in its lawsuit against Texas State University.

Speech First initiated the case in April of 2023. The original complaint said that “the Texas State University and System, along with their officials, have a speech code that punishes students for engaging in protected speech. This code deters students from expressing views that are outside the mainstream about the political and social issues of the day. It disregards decades of precedent.”

[RELATED: Free speech group calls out ‘constitutional no-no,’ sues Texas State for multiple policies]

The complaint stated that the main issue revolved around Texas State’s “policy on discriminatory ‘harassment’” that “disciplines students for [certain kinds of] ‘unwelcome verbal, written, graphic, or physical conduct.’” Speech First alleged that this policy defined “harassment” too broadly in a way that violated free speech rights on campus.

“Anyone—whether affiliated with the University or not—can file a complaint for discriminatory harassment. . . . The University ‘encourages its faculty, staff, students, and guests’ to report all violations that they ‘learn of.’ . . . And the University requires ‘[a]nyone in a supervisory position’ to report ‘a possible instance or allegation of discrimination,’” according to Speech First’s brief to the Fifth Circuit Court of Appeals.

Speech First also stated in its original complaint that the school’s computer policy “prohibits using the University’s ‘information resources to affect the result of a local, state, or national election or to achieve any other political purpose (consistent with Texas Government Code §556.004)’ or a ‘similar activit[y].’” Speech First alleged that “[t]he policy thus sweepingly bars students from using their university email addresses to send messages with a ‘political purpose’ and other ‘similar activities.’ This vague, content-based, and overbroad restriction of protected speech violates the First and Fourteenth Amendments.”

In the Jan. 16 brief, Speech First pointed out that “[a]fter suit was filed and the district court stated that the University’s policy violates the First Amendment, Texas State amended it. But the University defended the original policy as constitutional, adopted the amended policy only to avoid liability, and introduced no sworn testimony about its future intentions. The amended policy still violates the Davis standard [of what constitutes harassment] in part, and it’s likely invalid because it conflicts with super- seding systemwide policies.”

Speech First published a press release on Jan. 17 that stated: “Following arguments before the United States District Court for the Western District of Texas, Texas State University’s administrators changed their policies after it was apparent they would lose in court. However, their new policy still tramples on their students’ First Amendment rights and with no ruling from the District Court, the University could change their policy back to the original one at any time.”

The press release continues: “Speech First is challenging Texas State’s Discriminatory-Harassment Policy which is designed to – and has the effect of – silencing student speech. The Discriminatory-Harassment Policy – is overbroad and can easily be applied to a wide swath of protected speech. . . . Putting students in a position that they are not sure what exactly they can be reported for and will self-censor to avoid disciplinary action.”

[RELATED: 4 times universities restricted free speech in 2023]

Commenting on Texas State’s apparent change of mind, Cherise Trump, Executive Director of Speech First, said in an interview with The American Conservative: “When we launched our initial lawsuit, Texas State defended their policy. It wasn’t until it became clear during the proceedings that they would lose the case that they then changed their policy in order to avoid a District Court ruling against them. Aside from the fact that the new policy still chills student speech and, therefore, violates their First Amendment rights, the university changing its policy after vigorously defending it is an obvious attempt to evade a judicial ruling on the matter and now puts students in a precarious position, since the university could bring back the original policy at any time.”

As mentioned in the Jan. 16 brief, Texas State received a “mediocre free-speech ranking” in the 2024 College Free Speech Rankings published by the Foundation for Individual Rights and Expression. The school ranked 100 out of a list of 248 total schools and received an “Average” rating for “Speech Climate.”

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