University of Texas anti-bias policies are intended to chill speech, groups tell appeals court

Speech First launched the first public interest litigation project against campus bias response teams, and in retrospect it’s easy to see why it took so long.

The membership association failed to get an injunction against the University of Michigan’s team, the subject of its first lawsuit, even as it scared UMich into revising some definitions used by its team.

Another judge gave similar reasoning for dismissing Speech First’s lawsuit against the University of Texas, saying its Campus Climate Response Team doesn’t credibly threat student speech.

But Speech First isn’t the only organization that thinks these bias teams unconstitutionally chill students’ speech by subjecting them to official investigation for offending others.

The American Council of Trustees and Alumni and Independent Women’s Forum filed a joint friend-of-the-court brief with the 5th U.S. Circuit Court of Appeals, asking it to overturn the ruling in favor of UT.

They disagreed with U.S. District Judge Lee Yeakel that no reasonable student would censor herself in response to the threat of investigation from the CCRT.

“By prohibiting ‘uncivil … language that interfere[s] with the … individuality’ of other students, the University is stating an intention to change the contours of public discussion on campus,” the groups wrote, citing the university’s 2018 residence hall manual:

Because individual identity—commonly understood today to involve sexual orientation, gender identity, racial identity, economic status, etc.—cannot be disentangled from important issues of public policy, campus policies that aim to discourage “uncivil” speech as the University has defined it will inevitably chill political speech. In fact, they are designed to.

Conservative students in particular already have “strong and persistent pressures” to stay quiet, owing to the “clear and overwhelming political biases” of faculty and administrators.

Students are warned “in unnecessarily menacing terms” how they may be punished for speech-related violations, but UT does not specify “clear processes or guidelines according to which complaints will be adjudicated,” the brief says.

Students reported to the CCRT for ideological reasons will face a process that resembles “campus police and judicial systems … minatory and punitively intense, the kind of encounter a reasonable student will generally desire to avoid.” An investigation may also be inherently “retaliatory” if the university publishes a complaint that is detailed enough to identify the subject of investigation.

The brief cites research on students’ support for shouting down or even using violence to stop the expression of viewpoints they oppose; on left-wing faculty’s admitted bias against conservative viewpoints in the academy; and on the likelihood that their attitudes will negatively affect conservative students.

Judge Yeakel blithely ignored real-world examples of attempted and successful shutdowns against speakers such as Heather Mac Donald and Charles Murray, the groups said. Speech does not exist in a vacuum, and viewpoints are not safe to express simply because “campus policies do not expressly forbid disfavored viewpoints or formally specify punishments for those who express them.”

Part of the hostile climate for conservative students is the self-reported bias against them by progressive faculty, the groups said. A forthcoming study of academic philosophers revealed that more than half who self-identify as progressives admitted their “willingness to discriminate” against a right-leaning faculty hire. And everyone believed that “colleagues would engage in discrimination against right-leaning individuals” more than progressive colleagues.

It flies in the face of reason to assume that conservative students are acting “unreasonably” when they see the lengths to which conservative faculty go to hide their views, the brief argues:

After all, left-leaning professors not only set the intellectual tone of a university. They determine students’ grades; control scholarship and research funds; open doors to law schools, medical schools, and graduate schools with their letters of recommendation; and can support or impede students’ academic and career success in myriad other ways.

5th Circuit judges need look no further than the student response to Samuel Abrams when the Sarah Lawrence College professor published his findings about the “monolithically left-leaning” nature of student life programming, as the brief describes it.

Not only did they vandalize his office door, but they petitioned the university to launch a review his tenure, led by students and faculty of color.

Surveys by ACTA and Heterodox Academy show that students themselves admit there are “off limits” subjects on their campuses, and that conservatives are much more “reluctant to discuss politics in the classroom.” They explicitly cite fear of being investigated by the administrative apparatus and of punitive grading by professors, the brief says.

UT itself cannot escape these broad national trends because its own policies are “unnecessarily vague and specifically designed to deter speech based on the viewpoint a student means to express,” the groups argue.

Any investigation based on “uncivil” speech or “ridicule” based on “personal characteristics” is limited only by the feelings of the most easily offended student, the brief says.

It gives the example of a student who uses the neutral government term “illegal alien” to describe a “would-be immigrant” who did not follow U.S. immigration law:

Speech First should not have to provide specific examples of the viewpoints its members cannot discuss as the district court has suggested. The problem is that UT-Austin’s policies help to foster an environment in which broad categories of conversation cannot take place without causing conservative students to worry that a slip of the tongue might provoke an academically damaging accusation. …

In an environment where the rules governing speech are ambiguous by design, tied to terms with no clear definition but which can be used to disparage conservative viewpoints, reasonable students will refrain from discussing controversial subjects from fear of causing offense—especially when using the wrong word can trigger an investigation.

The university does not even have to call a student into a meeting with the dean to reasonably chill her speech.

Simply “being summoned to a public floor meeting to discuss spurious allegations of ‘racism, sexism, heterosexism, cissexism, ageism, or ableism’ can do lasting reputational damage,” forcing students to “balance professional success against the free expression of controversial viewpoints,” the brief argues.