Some lawmakers think free speech is endangered at Texas colleges. But what can they do about it?

Free speech on campus may be a hot-button issue, but it has spurred only tepid action in the Texas Capitol so far.

After months of media conflagration, hand-wringing and attempts to push through new laws, lawmakers still can't seem to rally around a way to boost students' free-speech rights — a goal pushed by many lawmakers, including Republican Lt. Gov. Dan Patrick. A few ideas have been raised, but they've repeatedly been met with questions about whether a state law regulating universities' free-speech policies is even necessary. 

“What would [lawmakers] mandate?” said Ron Trowbridge, a trustee at Lone Star College. “The First Amendment? It’s already been mandated by the 55 framers of the Constitution, so theirs would just be a redundancy.”

The restrictions college students face in exercising their First Amendment rights have come under scrutiny after a string of controversies – racist fliers, visits from provocateurs and calls to cancel events deemed alienating – have unspooled on campuses in Texas and across the country.

These incidents are often accompanied by worries that college students are becoming too coddled and complaints that one side or the other was muzzled by administrators. But attempts to address the issue have proved elusive. Last year, efforts to do so petered out in the state Legislature. Months later, lawmakers still seem unable to agree on how to rectify the problem — or if there is even a problem that needs fixing.

For example, when state Sen. Dawn Buckingham, R-Lakeway, introduced a bill in 2017 that would have required colleges to adopt a policy protecting students' right to partake in specified free-expression activities, a colleague reacted by asking: “What does this bill do that isn’t already covered by ... the United States Constitution and the Texas Constitution?”

An identical question was posed at a hearing a week later. And then again on the Senate floor, when state Sen. Kel Seliger, R-Amarillo, pointed to a restrictive school policy that the law sought to staunch and said, "Even before this bill goes into effect, that [policy] is a violation of the First Amendment, is it not?" 

That bill did not pass into law, but the confusion around the issue has lingered. Months later, at a January hearing devoted to discussing campus free speech, state Sen. Joan Huffman, R-Houston, encapsulated the problem facing lawmakers: “You can’t legislate and you can’t make rules sometimes and make people behave,” she observed.

“We’ve have issues at campus — yes”

The State Affairs Committee, which Huffman chairs, has been directed by Patrick to study whether students’ free-speech rights are being infringed upon at state universities before the Legislature reconvenes in 2019. He also instructed the committee, which does not normally handle higher education issues, to make recommendations about how to improve campuses' "free speech environment."

Patrick issued the charge after receiving a letter from conservative state Rep. Briscoe Cain, R-Deer Park, describing how a speech Cain tried to give at Texas Southern University was interrupted and later canceled.

“There are several approaches the Legislature can take to protect the speech of students from out-of-control administrations and students who don’t believe in the First Amendment," Cain wrote then. In testimony at a January hearing, Brantley Starr, a representative with Attorney General Ken Paxton’s office, laid out the various threats to free speech on campuses he’d seen – from schools denying groups equal access to resources to using sweeping definitions of what offensive speech or harassment is. 

Still, university leaders were adamant that their schools’ policies were generally without the offenses Starr identified. In fact, for a committee that last year held hearings on controversial “bathroom bill” legislation, the January free speech meeting was relatively tame.

Texas State University, where the hearing was held, made headlines in November when the school's student-run newspaper published a widely-decried opinion piece that was condemned by university leadership. But the president of Texas State didn’t mention that incident in her written testimony — nor any of the scuffles that led the nonprofit Foundation for Individual Rights in Education to designate the school one of the worst nationwide for free speech this year. (“Texas State University is committed to preserving free speech as guaranteed under the First Amendment, and has a history of protecting free expression on its campuses," said Matt Flores, a spokesperson for the school.) 

An administrator at Texas Southern University also wrote off how Cain's on-campus speech was canceled, saying the event did not “go the way that it should have gone” because the student group didn’t register properly.

And though a vice president at Southern Methodist University acknowledged “we’ve had issues at campus — yes,” he said they had been “worked through” and that a school free-speech policy had recently been revised.

State Sen. Judith Zaffirini, D-Laredo, asked the SMU vice president, Paul Ward, whether there are “policy changes that you would recommend that this committee recommend to the Legislature — specifically for private universities.” He suggested the school’s trustees should handle the matter instead. 

"The problem is a little more dire than they would present”

Texas lawmakers’ previous attempts to protect free speech on campus have centered on regulating different parts of public universities’ policies. Those bills, which haven’t passed, resemble sample laws drafted by the Foundation for Individual Rights in Education, a group whose legislative arm was created “to be defensive about bad ideas that undermine free speech on campus,” said Joe Cohn, its legislative and policy director.

The group encourages bills that would bar “unconstitutional speech codes” — anti-harassment codes that are written too broadly — on campus, Cohn said. He said policies that restrict where students can distribute flyers at school are problematic and added, “Another thing legislators can do is get rid of misleadingly labeled free-speech zones that are really free-speech quarantines,” he said.

Free-speech zones, which restrict protests to certain — and sometimes out-of-the-way — areas on campus, have garnered significant attention from lawmakers. (Buckingham's bill sought to ban them.) But most of the university representatives at last month's hearing said their campuses had done away with, or never had, the zones. Starr said in his testimony that some community colleges recently had them.

Cohn said legislators who push campus free-speech bills “should do so very carefully." The text must “very carefully track what the courts have been saying” and should center on providing more clarity to schools and giving students better means to enforce their rights.

At the hearing, Starr also suggested state laws can give college administrators specific direction about what free speech does and does not entail. And he added that the Legislature can direct the boards of private universities to adopt free-speech policies that mirror those at public institutions — a prospect that seemed to intrigue some of the senators.

SMU's Ward, who represents a private university, did not seem enthusiastic about that idea.

“With respect,” he said at the hearing, “we believe, as a church-related independent university, it’s within the authority of the board of trustees to establish the appropriate policies on campus.”

Officials at public colleges have also suggested that administrators, not lawmakers, are best equipped to craft their campus policies on free speech. 

Buckingham said through a spokesperson that it was too soon to say whether she would introduce a similar bill in the future. But Cain, who also authored campus free-speech legislation last year, said he intends to.

"The issues with campus free speech is not that the Constitution does not provide ample protection — it does," Cain said. But because courts have interpreted those free-speech clauses differently, "there needs to be clarity so that students and universities alike may easily know what the law is."

And at the January hearing, the general counsel of the conservative group Empower Texans was among those who argued laws that do so are necessary.

“You know, we had all of these various gentlemen who were from the system offices, and they come here and basically say, ‘Well, we don’t have any content restrictions, there aren’t any problems here, everything’s good, let’s move along,” said Tony McDonald. “I think the problem is a little more dire than they would present.”

Lone Star College, Texas Southern University and Southern Methodist University have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.