Settlement with conservative free speech group forces University of Houston to keep amended anti-harassment policy

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The University of Houston has settled with a conservative free speech group that sued the school over an anti-discrimination policy that the group argued was overly broad and violated students’ First Amendment rights.

As part of the settlement, UH officials will have to pay $30,000 in attorney’s fees to Speech First and UH officials must keep in place its amended anti-discrimination policy.

In this case, Speech First, a group that actively litigates college policies they view as student censorship, targeted UH’s anti-discrimination policy that has been in place since 2012. According to that policy, unlawful harassment was defined as “humiliating, abusive, or threatening conduct or behavior that denigrates or shows hostility or aversion toward an individual or group” or conduct that created a hostile living or working environment or interfered with an individual’s academic or work performance.

Examples of such harassment included “epithets or slurs,” “negative stereotyping” and “denigrating jokes.”

It also stated “[m]inor verbal and nonverbal slights, snubs, annoyances, insults, or isolated incidents including, but not limited to microaggressions,” would be considered harassment if the actions occurred repeatedly and targeted a particular group of people based on their race, sex or gender or other status that keeps them protected from discrimination.

But in May, three months after Speech First filed its suit, the university amended its policy. Later that same month, U.S. District Judge Lynn Hughes, a Reagan appointee, blocked the university from reinstating its original anti-harassment policy.

“This is a huge win for the First Amendment,” said Cherise Trump, executive director of Speech First, a group that pushes back against what it calls “toxic censorship culture” on campuses. “It sends a message to the University of Houston and other universities that they will be held accountable if they enact unconstitutional policies on campus.”

In a statement, UH officials said they have come to an “amicable” agreement and consider the matter resolved.

“As a result of our discussions, a revised anti-discrimination policy has been adopted,” Chris Stipes, director of UH media relations, said in a statement. “The UH System remains committed to protecting the constitutional rights of our students and employees.”

Speech First filed the lawsuit on behalf of three conservative students identified only as “A,” “B” and “C” who said they felt they could not express their beliefs on campus for fear they would be punished under UH’s older policy.

As examples, the lawsuit listed how the students feared retaliation if they shared personal beliefs such as “affirmative action in college admissions is racist” or “allowing biologically male athletes who identify as female to compete in women’s sports is fundamentally unjust.” All three said they were uncomfortable acknowledging fellow students’ preferred pronouns outside of a cisgender identity.

In documents, lawyers for the university argued that its policy specifically addresses unlawful harassment of students and would not consider those statements and ideas provided by the students in the lawsuit as a violation of the policy.

University lawyers have also argued there is no evidence that the anti-discrimination policy has ever been used against students.

When the university amended the anti-discrimination policy in mid-May, it specified that harassment must rise to the level of creating a hostile work environment for employees or to deny a student equal access to education by creating a hostile learning environment. That is the standard set by the 1999 Supreme Court decision in Davis v. Monroe County Board of Education, which states that schools violate the Title IX ban on sex-based discrimination if they remain deliberately indifferent to sexual harassment to the point it prevents a student from receiving an equitable education.

Two years ago, the U.S. Department of Education Office of Civil Rights under former President Donald Trump used that definition of sexual harassment when it issued revised rules and standards for investigating Title IX violations on college campuses, which was a more narrow definition for sexual harassment than any previously used.

Speech First lawyers argue that many universities, including UH, adopt harassment policies outside of that guidance that are too broad, providing a chilling effect to students’ free speech.

A UH lawyer said the definition of sexual harassment in the Davis case did not limit schools from enacting other policies to address unlawful harassment and should not be considered the standard for universities as they craft disciplinary policies to address other instances of inappropriate behavior.

“Speech First has tried to bootstrap Davis in numerous other cases, and to date none has held that Davis imposed the outer bounds for addressing unlawful harassment,” they wrote.

But when Hughes, the federal district judge, granted a preliminary injunction late last month preventing UH from reinstating its original anti-harassment policy, he sided with Speech First.

“Restraint on free speech is prohibited absent limited circumstances carefully proscribed by the Supreme Court. Any limitation deserves the upmost scrutiny,” he wrote, stating the group would likely win the case. “The University says that it will be injured if recourse is unavailable for harassment against students of faculty. As important as that is, students also need defenses against arbitrary professors.”

This is the latest victory for Speech First, which has sued universities across the country over free speech policies, including the University of Texas at Austin. The case against UT-Austin took a similar path. Speech First sued the university in 2018 over language in multiple freedom of expression policies. UT-Austin amended some of the policies before settling with the organization and agreed to discontinue the university’s Campus Climate Response Team, part of the division of student affairs and the division of diversity and student engagement that investigated student reports of bias incidents on campus.

This lawsuit comes as other free speech debates have bubbled up on Texas college campuses throughout this past academic year.

At Collin College in North Texas, three professors have sued the school, arguing their contracts were not renewed in retaliation for exercising their First Amendment rights on a variety of issues, including one professor who publicly criticized the school’s COVID-19 response.

Nearby at the University of North Texas in Denton, thousands of students and community members signed a petition calling on school administrators to expel a right-wing student, arguing her campus activism and statements opposing gender-affirming care for transgender children created an unsafe learning environment for transgender students on campus.

In that instance, administrators denounced the student’s comments, but they said she and her right-wing campus group had not violated any university policies.

Disclosure: Collin College, University of Texas at Austin, University of Houston and University of North Texas 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.

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