AUSTIN (KXAN) — Counsel for several UT Dallas and UT Austin student groups filed a reply Thursday to the Texas Office of the Attorney General’s (OAG) defense of the University of Texas System, claiming that legal precedent is on the students’ side.
On Sept. 18, the OAG filed its response to the students’ lawsuit against the university system, which was brought after the UT System created policies to comply with Senate Bill 2972, which passed earlier this year. That filing claims that because SB 2972 isn’t directly enforceable against students, the students can’t challenge the law’s legality.
“SB 2972 does not directly regulate students; it directs institutions of higher education to adopt certain policies,” the OAG’s response reads. “Rather than challenge those policies, Plaintiffs have chosen to direct their claims at SB 2972 alone. But SB 2972 will not be enforced against Plaintiffs by any state official.”
Directly responding to that statement, the students’ attorneys said that the OAG “misstate Plaintiffs’ argument.”
“Unable to escape [SB 2972’s] chilling harm, Defendants focus on UT Austin and UT Dallas’s
implementing policies, asserting Plaintiffs ‘direct their claims at SB 2972 alone,'” the reply reads. “But Defendants misstate Plaintiffs’ argument. Plaintiffs explain how both [SB 2972] and the
implementing policies violate their First Amendment rights and open them to discipline.”
The defendants in the case are the UT System’s Board of Regents, UT Chancellor Dr. John Zerwas, Austin President James Davis and UT Dallas President Dr. Prabhas Moghe. In their defense, the OAG argued that sovereign immunity shields the defendants and that the schools’ policies restrict speech in a legal manner.
The Foundation for Individual Rights and Expression (FIRE), a free speech group representing the students in court, said in its reply that the OAG is mistaken in those arguments.
“No matter what Defendants argue, they cannot avoid Fifth Circuit precedent and decisions from this District making clear that because Defendants play a role in carrying out the Act’s mandatory prohibitions on campus speech, they have no sovereign immunity from this First Amendment challenge,” reads FIRE’s reply. “Texas’ sweeping censorship mandate cannot survive First Amendment scrutiny.”
In response to the immunity claim, FIRE cited the University of North Texas’ July settlement in a First Amendment lawsuit brought by professor Timothy Jackson.
“[T]he Fifth Circuit in Jackson rejected a similar sovereign immunity defense from members of the University of North Texas System Board of Regents,” reads FIRE’s reply. “If university board members with no direct role in a First Amendment violation were the ‘right defendants’ … in Jackson, then Defendants are the ‘right defendants’ here.”
The plaintiffs also argue that the defendants have governing authority over policies and enforcement.
“[T]he Presidents are responsible for policies relating to students, sufficiently connecting them to enforcing the Act and institutional policies implementing it,” FIRE states. “They also play a direct role enforcing those policies. For instance, [Davis] hears petitions of student disciplinary actions and can appoint personnel to hear violations of the University’s implementing policies.”
The OAG’s filing also said that, since the students haven’t shown instances of harm or imminent harm from the policies, they shouldn’t be allowed to sue over potential future injury to their First Amendment rights. Responding to that, FIRE argues that since plaintiffs intend to engage in protected speech threatened by the schools’ enforcement of the policies.
“Above all, Defendants ignore how the Fifth Circuit ‘has repeatedly held, in the preenforcement context, that ‘[c]hilling a plaintiff’s speech is a constitutional harm adequate to satisfy the injury-in-fact requirement,’” FIRE’s attorneys wrote, citing a 2018 lawsuit settled by UT Austin.
FIRE has asked the court to issue an injunction against the enforcement of SB 2972 until the court can rule on the constitutionality of the state law and UT’s policies. The OAG asked in its filing for the US District Court judge presiding over the case to dismiss the lawsuit without prejudice.