The Texas Senate's free speech proposal could force a policy change at UT-Austin, other campuses

When Beto O’Rourke’s presidential campaign was looking to drum up attendance for a weekend rally in downtown Austin, the college a few blocks away might have seemed like the perfect place to go.

But the University of Texas at Austin denied a request by Democratic former congressman’s campaign to spread the word there.

“We’re unable to grant you permission at this time to pass out flyers on campus,” a university staff member wrote to the campaign on March 23, according to an email obtained by an open records request.

In its denial, the university cited UT System speech and assembly policies, which are more restrictive for groups that aren’t affiliated with the school. Those policies — like those at universities across the state and country — have become a hot-button issue, especially among groups that believe their political speech is being silenced. This year, the rules have come under the spotlight in the Texas Capitol. And if a bill that has already passed the Senate becomes law, schools will be unable to deny requests like the O'Rourke campaign's.

Last month, legislation aimed at protecting free speech on college campuses sailed unanimously through the Texas Senate. Senate Bill 18, filed by Sen. Joan Huffman, R-Houston, would require Texas colleges and universities to create more uniform policies on free speech. It would also require universities to come up with disciplinary sanctions for students who interfere with the free speech activities of others. And it would establish a process for addressing complaints of potential free speech infringements.

During both the committee hearing and Senate floor discussion on the bill, lawmakers consistently pointed to protests on UT-Austin’s campus as indicative of the need for the legislation.

UT-Austin is far from the only school in the state to face questions about its policies. In 2017, Texas A&M University was threatened with a lawsuit after it canceled a rally featuring white nationalist Richard Spencer. And Texas Southern University drew lawmakers’ ire after it halted a speech by conservative state Rep. Briscoe Cain, R-Deer Park, when protestors disrupted it.

Much of the criticism comes from the political right, where there are worries that conservatives are at risk of being silenced on campus.

But as UT-Austin faces much of the current scrutiny, school officials have defended their policies. University spokesman J.B. Bird said the university has not rejected a speaker due to potential controversy in the last 10 years. And most of its policies already align with S.B. 18, he said.

“We vigorously protect freedom of speech and it’s essential to our mission and it’s written into our policies very clearly,” Bird said. “We feel that our policies are very strong on freedom of speech and that’s been demonstrated through events in the past couple of years.”

That has led to questions about whether the Senate bill is even necessary, or whether it simply reinforces rights already protected by the First Amendment. But Senate leaders have pushed the bill as a necessary step to protect students’ voices. Republican Lt. Gov. Dan Patrick has labeled S.B. 18 as one of his top priorities this session.

“Our college students, our future leaders, they should be exposed to all ideas, I don’t care how liberal they are or how conservative they are,” Huffman said at a Senate Committee on State Affairs hearing on the bill. “Sometimes we feel offended by what someone else says, and that’s just too bad in my book.”

SB 18 would impact UT-Austin by requiring universities to establish all common outdoor areas of campus as traditional public forums and allow any person to exercise their free speech rights there, as long as their activities are lawful and don’t disrupt the normal activities of the institution.

UT-Austin — just like all UT System campuses — is currently designated as a limited public forum. Outside individuals or organizations cannot distribute literature on campus, which is why O’Rourke’s campaign was prevented from handing out flyers. And outside speakers must be invited by a UT-Austin registered student, faculty or staff organization and receive advance permission from the university, according the rules.

A representative from O’Rourke’s campaign did not respond to requests for comment.

The bill would still allow universities to put restrictions on the time, place and manner of speech expression. UT-Austin and many other schools already have those policies in place. UT-Austin currently imposes certain rules on when and where students can use amplified sound so as not to disrupt other campus activities.

In passing SB 18, senators pointed to another controversy that emerged on UT-Austin’s campus last year. Last October, the university’s chapter of the Young Conservatives of Texas set up a table and held posters in support of then-U.S. Supreme Court nominee Brett Kavanaugh, who was facing allegations of sexual misconduct in his confirmation process. In a viral video that gained national attention after the event, other students could be seen tearing up the group’s signs. One student bit into a poster.

The university’s rules prohibit students from damaging signs or property being used by others for free speech expressions, and one identified student who damaged the group’s signs was later disciplined. The university did not discipline the conservative group for the event. But it faced backlash from students who were upset about the student’s sanction and argued the demonstration was offensive and should not have been allowed on campus.

Lillian Bonin, vice chairman of UT-Austin’s chapter of the Young Conservatives of Texas, was holding the sign that was bit at the Kavanaugh event. She said she feels UT-Austin has gotten better in recent years at protecting students’ right to assemble.

“There is a broader importance of some of the demonstrations that YCT does in my opinion that’s made exercising free speech on campus a more acceptable and normal thing to do, which is great, and not just for us,” said Bonin, a junior.

But still, free speech advocates have criticized the university’s policies. The Foundation of Individual Rights in Education gives UT-Austin its lowest rating — red — for its speech code. The group gives the campus a green rating for its rules on speech, expression and assembly. But it takes issue with UT-Austin’s acceptable use policy, which outlines what can be said on campus internet, and its sexual harassment policy, topics which Huffman’s bill doesn’t address.

And a nonprofit group called Speech First has sued the university, claiming some of UT-Austin’s free speech rules are still vague and restrictive.

Bird said the University doesn’t think Speech First has the legal standing to sue. He said the university strongly protects the First Amendment rights of students, but is still listening to both groups’ concerns.

“In setting its policies the university looks at input from many stakeholders, especially students, faculty, staff, parents, the state legislature and the citizens of Texas,” Bird said.

Disclosure: The University of Texas at Austin, Texas A&M University and Texas Southern 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.