Abbott’s executive order is unconstitutional

GA 44, Governor Abbott’s recent executive order addressing antisemitism in Texas universities raised concerns among free speech advocates. While UT has a duty to foster a safe environment for Jewish students to learn, it must also protect the free speech rights of its students.

UT already has existing protections in place to guard students from harassment. According to the executive order, Texas universities must “review and update free speech policies to address the sharp rise in antisemitic speech and acts on university campuses.” However, it fails to provide clear guidelines as to how universities may do that without infringing on students’ rights to free speech. 

Tyler Coward, the lead counsel for government affairs for the Foundation for Individual Rights and Expression, is concerned about the potential legal ramifications of the order.

“Institutions should be on notice that if they adopt an unconstitutional policy, and enforce that unconstitutional policy against students, based on their constitutionally protected political speech on this very important matter today, they risk a First Amendment lawsuit that they will likely lose,” Coward said. “When institutions are weighing whether or not to follow an executive order, or the First Amendment of the United States Constitution, they should always choose the Constitution.”

Because of its broad scope, potential First Amendment issues will rely largely on each individual university’s implementation of the order, according to Steven Collis, Texas law professor and director of the Bech-Loughlin First Amendment Center.

“If you define antisemitism narrowly to be consistent with free speech law, so for example, you might say, ‘We will not allow direct threats of physical violence to anyone. We will not allow trying to incite imminent lawlessness’ … then you’re consistent with the Constitution,” Collis said. “But if you say we’re not going to allow anyone who is protesting the current actions of the nation of Israel to share their comments, I can almost guarantee you’re going to be violating the Free Speech Clause of the First Amendment.”

However, Michael Poliakoff, American Council of Trustees and Alumni president, believes that this order is both legal and imperative to protect Jewish students. 

Poliakoff said in an email statement, “The Governor’s strong support for freedom of speech and firm prohibition of antisemitism are fully compatible. Speech that threatens imminent racial violence or creates an environment so hostile that students of color cannot pursue their educational goals is both illegal and despicable: the same is manifestly true for antisemitism.”

Poliakoff believes the order is a standard, constitutionally protected measure.

“It is customary for university speech policies to include time, manner and place restrictions in addition to prohibitions on speech that is constitutionally unprotected because it amounts to, for example, discrimination or harassment. It is quite proper that the Governor would require the state’s universities to review their policies, and his order is particularly urgent in the wake of the rise in antisemitic acts on campuses following the October 7 Hamas massacre,” said Poliakoff.

However, the constitutional issue with Abbott’s order lies within its attempted prohibition of dissenting speech, not its protections for Jewish students. The order’s vague wording could allow universities to expand policies to include political speech and criticism of the state of Israel as antisemitism. These broader definitions not only limit the expression of students, but also shifts the focus from student safety to political agendas.

FIRE said in an online statement regarding Abbott’s order, “Anti-Semitism on campus is a real problem. When anti-Semitic speech crosses beyond the First Amendment’s protection, Texas institutions have a moral and legal obligation to take action. But today’s executive order relies on a definition of anti-Semitism that reaches core political speech, including criticism of Israel.”

Coward said Abbott’s order requires institutions to adopt the speech code of the International Holocaust Remembrance Alliance, which prohibits certain criticisms of Israel. 

“When the government says, ‘This is the one entity you cannot criticize, but you’re free to criticize whoever else,’ that’s blatant viewpoint discrimination and the Constitution prohibits that viewpoint discrimination,” Coward said. “And that’s why this executive order, if the institutions abide by it, will be adopting unconstitutional policies that will restrict their students’ free speech rights.”

The order specifically called out two student organizations by name, the Palestinian Solidarity Committee and Students for Justice in Palestine. However, Abbott provided no evidence to support the claim that these organizations have participated in or condoned antisemitic behavior on campus. Singling out these groups without substantial evidence could lead to the suppression of certain opinions among students.

“Our activism has never called for harm to be committed against other groups of people. Never. We’ve never called for harm against Jewish people,” said Ammer Qaddumi, a member of the Palestinian Solidarity Committee. “A lot of Jewish activists here in Austin are actually some of our closest allies and very close friends. This executive order, it mischaracterizes our activism as being antisemitic.”

By enforcing this order, universities risk limiting discussions on important political issues related to Israel and Palestine, which inhibits students’ First Amendment rights and fails to foster freedom of expression in academic environments.

This post appeared on The Daily Texan on April 8, 2024.