August 31, 2016

August 31, 2016 | Commentary on Rule of Law, Legal Issues

Eureka! Texas Court Reminds Liberal Professors That Our Rights Don't Cancel Each Other Out

Can the First and Second Amendments co-exist? According to a trio of professors at the University of Texas-Austin, the answer is no. Fortunately, a federal district court in Texas shot down their ludicrous claim.

Specifically, the court rejected the professors’ strange contention that their First Amendment rights are violated by students exercising their Second Amendment rights. Judge Lee Yeakel refused to grant an injunction against the university’s new gun policy, which was issued by the Board of Regents in compliance with the state’s new “Campus Carry Law.”

In Glass v. Paxton, Dr. Jennifer Lynn Glass, Dr. Lisa Moore, and Dr. Mia Carter made the bizarre assertion that allowing students with concealed carry permits to carry guns on campus will result in classroom discussions being “circumscribed by the near-certain presence of loaded guns.” The ability of the professors to “make [their classrooms] truly a marketplace for the robust exchange of ideas will be impaired,” according to the professors.

Moore told NPR that the professors “all teach subject matter that is quite sensitive,” and that certainly seems to be so. Moore is a professor in the English Department where she has taught classes such as “Queer Poetics” and whose “interests” include “LGBT literature and culture” as well as “feminist and queer theory.” Glass is the Barbara Bush Professor of Liberal Arts in the Department of Sociology at UT and the former chair of the Department of “Gender, Women’s & Sexuality Studies” at the University of Iowa. And Carter is also a professor in the English Department at UT whose interests included “Imperial studies” and “women’s studies.”

Moore went on to say that she can’t “keep students safe from a firearm” in her classroom. She was asked about the mass shootings  at Virginia Tech in 2007 and what she thinks about students who believe that with a concealed carry permit they could have “been part of the solution rather than a victim.” Moore blithely dismissed that concern, claiming that a “licensed gun holder is not going to be in a position nor have the practice to be able to make a wise decision” about using a gun to defend himself or herself.

Moore apparently doesn’t know about the statistics showing that Americans successfully defend themselves from violence and other crimes using firearms anywhere from 500,000 to more than 3 million times per year, according to the Centers for Disease Control.

Texas passed its “Campus Carry Law” in 2015. It allows a concealed carry permit holder to carry a weapon on a campus of higher learning. It also allows universities to set specific policies regulating the process based on “the nature of the student population, specific safety considerations, and the uniqueness of the campus environment.”

However, the university is barred from implementing policies that generally prohibit “license holders from carrying concealed handguns on the campus of the institution.” The professors argued unconvincingly that this law infringed on “their First Amendment right of academic freedom.”

Judge Yeakel acknowledged the importance of academic freedom, citing a 1967 U.S. Supreme Court case, Keyishian v. Board of Regents of University of New York. There, the Supreme Court said that our “nation is deeply committed to safeguarding academic freedom,” a freedom that is a “special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”

However, according to Yeakel:

the Campus Carry law and Policy do not direct Plaintiffs either toward or away from any particular subject or point of view. The provisions do not prohibit, require, or even mention any form of speech by professors of the University. The burden of which Plaintiffs complain therefore does not fit within any recognized right of academic freedom.

In fact, the judge:

searched the jurisprudence of this country from the ratification of the Constitution forward” and found no support for the professors’ claim that “there is a right of academic freedom so broad that it allows them such autonomous control of their classrooms – both physically and academically – that their concerns override decisions of the legislature and the governing body of the institution that employs them.

Yeakel also dismissed the claim made by the professors that having the Campus Carry Law apply to public universities but not private universities, and allowing guns in classrooms but not in certain other campus locations, violated equal protection under the Fourteenth Amendment. Yeakel agreed with Texas Attorney General Ken Paxton, who argued that while the Texas legislature had a legitimate governmental interest in permitting “citizens who are licensed to carry concealed handguns to do so for purposes of self-defense,” the rationale for allowing private universities to opt out furthers “the state’s legitimate interest in respecting private-property rights.”

Moreover, the judge concluded, it was perfectly reasonable for the university to exclude guns from private offices since occupants of such offices have “traditionally been vested with substantial control” over their office space, and it was also reasonable for UT to exclude guns from areas “where the discharge” could cause great harm, “such as laboratories with extremely dangerous chemicals, biologic agents, or explosive agents.”

Allowing guns in the classrooms, however, was a legitimate policy because that is where students primarily spend their time. “Excluding handguns from classrooms would have the effect of generally prohibiting license holders from carrying their handguns” in violation of the Campus Carry Law.

Neither the “Texas legislature nor the Board of Regents has overstepped its legitimate power to determine where a licensed individual may carry a concealed handgun in an academic setting,” according to Judge Yeakel. Thus, the three UT professors failed to establish a substantial likelihood of ultimate success on the merits of their claims and were not entitled to an injunction.

Although the judge did not say so, it is clear from the claims made by Glass, Moore and Carter that this entire case was based on their hyperbolic fears about gun owners. Apparently in their minds, individuals who have gone through the detailed background investigation and approval process for obtaining a concealed carry permit are so crazed that they will pull out their guns and start shooting if someone voices an opinion they disagree with in a classroom.

That jaundiced view bears no relation whatsoever to the reality of law-abiding gun owners — including students — of America.

Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation (heritage.org). Along with John Fund, he is the co-author of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk” and “Obama’s Enforcer: Eric Holder’s Justice Department.”

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

Related Issues: Rule of Law, Legal Issues

This piece first appeared in Conservative Review.