POSTED BY HANK REICHMAN

Last week the AAUP filed an amicus brief supporting a challenge to a statute and policy in Texas that compel faculty to permit concealed handguns in college classrooms.  The brief in Glass v. Paxton, filed jointly with the Giffords Law Center to Prevent Gun Violence and the Brady Center to Prevent Gun Violence, argues that the policy violates faculty members’ academic freedom.

Texas passed a “campus carry law” that expressly permits concealed handguns on university campuses, and in 2016 the University of Texas at Austin issued a policy mandating that faculty permit concealed handguns in their classrooms. Several faculty members sued, challenging the policy and the law. The lower court dismissed the case, holding that the plaintiffs had not proven that they been harmed by the law or university policy. The faculty members appealed and the case is now before the U.S. Court of Appeals for the Fifth Circuit.

Following are excerpts (without case citations, footnotes, and subheads) from the brief.  The full amicus brief may be found here. 

As the Supreme Court observed sixty years ago, “[i]t is the business of the University to provide that atmosphere which is most conducive to speculation, experiment and creation.” And it is the obligation and right of individual faculty
to make pedagogical choices that foster such an environment. In 2016, the University of Texas at Austin (“the University”) abrogated that right. In response to a newly enacted Texas statute, it adopted a policy preventing individual faculty members from excluding concealed handguns from their classes. Together, the Law and Policy sharply reversed Texas’s longstanding practice of keeping guns out of university classrooms—sites of vigorous debate, dispute and contestation.

The decision whether to permit or exclude handguns in a given classroom is, at bottom, a decision about educational policy and pedagogical strategy. It predictably affects not only the choice of course materials, but how a professor can
and should interact with her students—how far she should press a student or a class to wrestle with unsettling ideas, how trenchantly and forthrightly she can evaluate student work. Permitting handguns in the classroom also affects the extent to which faculty can or should prompt students to challenge each other. The Law and Policy thus implicate concerns at the very core of academic freedom: They compel faculty to alter their pedagogical choices, deprive them of the decision to exclude guns from their classrooms, and censor their protected speech. . . .

Plaintiffs do not allege that the Law and Policy as a whole are unconstitutional or argue that the University overall must be a gun-free zone. Rather, Plaintiffs contend that to the extent the Law and Policy require them to permit concealed handguns in their classes, they suffer an invasion of their First Amendment right to academic freedom, a cognizable injury. That invasion occurs for at least three reasons. First, the Law and Policy impermissibly chill Plaintiffs’ academic rights by compelling them either to revise their considered teaching methods in light of a fundamentally altered educational environment, or to violate the Policy by excluding guns from their classrooms and risk discipline or loss of
their positions. Self-censorship, undertaken to avoid a regulatory violation, confers standing to bring an anticipatory challenge to an unconstitutional law. Second, in forcing Plaintiffs to permit handguns in their classrooms, the Law and
Policy wrest from Plaintiffs the right to make choices about classroom management according to their best educational judgment. Third, by expressly forbidding Plaintiffs from even discouraging students from bringing guns to class, the University overtly censors Plaintiffs’ classroom discussion of public issues. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”

Plaintiffs’ core contention—that admitting handguns into classrooms alters the educational environment—cannot reasonably be dismissed as “subjective fear” insufficient to confer standing, as the District Court did below. Plaintiffs’ allegations articulate a widespread belief among educators that the presence of guns interferes with pedagogy, a belief confirmed by social science research demonstrating that the very presence of guns can propel discomfort into overt aggression, even if no one threatens an actual shooting. . . .

The Supreme Court recognized academic freedom as a protected right over half a century ago, observing that “[t]he essentiality of freedom in the community of American universities is almost self-evident. … To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.”

The academic freedom invoked by the Court extends to classroom teaching as well as research. “The classroom is peculiarly the ‘marketplace of ideas,’” and for that reason, academic freedom is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” . . .

The Law and Policy confront Plaintiffs with a stark choice: They must either revise their preferred course materials and pedagogical strategies in response to an altered academic environment or violate the policy by requiring gun-free classrooms and risk University discipline. The chilling of academic freedom and self-censorship prompted by such a choice constitute a cognizable injury.

As amicus AAUP has long affirmed, “[c]ontroversy is at the heart of the free academic inquiry.” Subjects on the cutting edge of research, or at the center of political and cultural debates, may unsettle students and generate heated classroom discussion. Faculty challenge students’ deep-seated convictions as a means of leading them into new intellectual territory. And in the vigorous give-and-take of classroom discussion, students challenge each other.

Plaintiffs’ declarations confirm that their pedagogy elicits and requires intellectual risk. . . .

But while academic debate thrives on differences of opinion, Plaintiffs allege (and social science confirms) that the presence of guns—even if not flourished or discharged—can significantly alter the dynamics of provocative exchanges. Such an alteration in the classroom environment necessarily impacts faculty’s decisions about course objectives and pedagogical strategy. A large body of evidence confirms that Plaintiffs’ apprehensions are anything but “subjective.” . . .

. . .  Regardless of whether individual students in their courses do in fact carry hidden guns, Plaintiffs must teach in an environment in which faculty and students are aware that others may be doing so. Each of the Plaintiffs declares that she would exclude guns from her classroom if permitted, but anticipates disciplinary or other adverse consequences were she to do so. Plaintiffs also allege that the potential presence of guns will necessarily compel different pedagogical choices—amounting to self-censorship. . . .

The District Court discounted Plaintiffs’ alleged injuries as nothing more than “subjective” fear—speculative harms contingent on uncertain third-party actions and unsubstantiated by “concrete evidence.” This both misunderstands the First Amendment academic rights asserted by Plaintiffs and misapplies the law governing motions to dismiss. Plaintiffs’ allegations do not turn on possible governmental action as did the allegations of “subjective chill” that the Supreme Court rejected as a basis for standing in Laird and Clapper v. Amnesty International USA. And the law does not require Plaintiffs to produce “concrete evidence” to withstand a motion to dismiss; rather, the court must presume that the complaint’s “‘general allegations embrace those specific facts … necessary to support the claim.’” In fact, as detailed below, abundant evidence demonstrates that Plaintiffs’ allegations about the chilling effect of guns on classroom dynamics are “objectively reasonable”—as Plaintiffs could have shown had the lower court permitted their
claims to proceed. . . .

Educators at the University and across the nation share Plaintiffs’ belief that the presence of firearms mandates less pedagogically sound strategies. The Working Group’s Final Report explained that faculty (and many students) expressed a “deep-seated fear that the knowledge that one or more students might be carrying a concealed weapon would have a substantial chilling effect on class discussion.” In transmitting the proposed Policy to the Chancellor,
President Fenves reported that the Faculty Council had passed a resolution calling for exclusion of guns from classrooms, and that all large private institutions in Texas had exercised the statutory option to prohibit concealed guns on their campuses.

Some faculty expressed their opposition to the Law and Policy by cutting ties with the University. Job applicants have declined University employment and prospective students and invited speakers have stayed away, citing the potential of guns on campus—powerfully rebutting any notion that Plaintiffs’ concerns are merely “subjective.”

Indeed, Plaintiffs’ concerns echo those expressed in a 2015 survey of faculty and staff at seven Kansas public universities. Of 10,866 respondents, seventy percent reported that they “discuss material that challenges views and deeply held beliefs in ways that others may find uncomfortable.” The same percentage believed that guns on campus would negatively impact their teaching and sixty-six percent said that permitting guns in the classroom would “limit[ ]
their academic freedom to teach the material and engage with students in the way that optimizes learning.” Sixty percent said they would “need to change how they teach their course if guns are allowed in the classroom.”

University faculty across the country overwhelmingly share these beliefs. In 2015, the AAUP joined in an amicus brief with the American Federation of Teachers, the Association of American Colleges and Universities, and the Association of Governing Boards of Universities and Colleges in a Joint Statement Opposing Campus Carry laws because “a rigorous academic exchange of ideas may be chilled by the presence of weapons. Students and faculty members will not be comfortable discussing controversial subjects if they think there might be a gun in the room.” In the twenty-two states which permit colleges and universities to set their own policies about guns on campus, almost every school has elected not to permit them, and over a dozen additional states and the District of Columbia restrict guns on campus by statute.

Educators’ apprehensions are verified by social science research. Studies dating back to 1967 have demonstrated the “weapons effect”: the tendency of provoked individuals to behave aggressively when in the presence of actual guns, pictures of guns, and even words referring to weapons.This research suggests that carrying a concealed weapon can increase aggressive behavior by the person carrying. But it also demonstrates that words or pictures of guns exert a priming effect on individuals—even if they themselves are not carrying guns—triggering the accessibility of aggressive concepts. As a recent review summed up: “[T]here is a growing body of research showing that weapons increase aggressive thoughts and hostile appraisals, which helps explain why weapons also increase aggressive behavior.” In other words, the “mere presence of weapons” magnifies both aggressive cognition and aggressive conduct—particularly in stressful situations. And this heightened aggression afflicts both those who carry weapons and those who perceive their mere presence. . . .

Vigorous collegiate debate and intellectual risk taking can create a charged atmosphere in which guns, or the suspected presence of guns, may power aggression. Even if no violence or actual threat of violence occurs, heightened verbal aggression may sour academic discourse, inhibit students, and impede learning. Plaintiffs’ alleged chill does not turn on a belief that, as the Attorney General flamboyantly put it in the court below, “adults who have been licensed to carry handguns could attack them at any moment if they say anything potentially controversial in class.” (ROA.969.) Rather, as experienced and highly competent teachers, they recognize that their pedagogy must anticipate and accommodate an altered dynamic: by reducing or eliminating controversial topics, dropping requirements that students engage in vigorous debate, holding back in response to students’ fears. Such a chill of Plaintiffs’ academic freedom amounts to a cognizable injury in fact caused by the challenged Law and Policy.

The Law and Policy violate Plaintiffs’ First Amendment academic freedom for a second reason: They improperly wrest from individual faculty the right to determine that guns cannot reasonably be permitted in their individual classrooms.
As discussed above, that question is inextricable from an individual professor’s course objectives and pedagogical strategy. In considering factors such as whether course topics will arouse heated dispute and the pedagogical importance of challenging the status quo, a faculty member should be able to decide that students should not be permitted to bring guns to class.

The Policy acknowledges that guns pose singular risks in certain sites, such as laboratories storing “extremely dangerous chemicals,” but does not specify the precise facilities. Just as chemists best determine which chemicals are combustible, individual faculty must be able to decide that the ideas in their courses are particularly volatile, warranting the exclusion of guns.

Academic freedom encompasses, among other things, the “freedom to teach,” and “the freedom of individual teachers to not suffer interference by the administrators of the university.”  As amicus AAUP explains, the “freedom to teach” includes “the right of the faculty to select the materials, determine the approach to the subject, make the assignments, and assess student academic performance.” Because, as University of Texas and Kansas faculty concur, guns in the classroom may preclude use of certain materials, distort classroom dynamics, and affect academic performance, the right to teach necessarily includes the right to determine that guns cannot be included in the mix. By denying faculty the ability to make this context-specific decision, the Policy improperly subjects Plaintiffs’ teaching to administrative interference. And it denies them the constitutionally protected academic freedom to cultivate an atmosphere “conducive to speculation, experiment and creation.” This abridgement of academic freedom is direct and neither speculative nor uncertain. . . .

The Policy additionally infringes Plaintiffs’ First Amendment rights by directly censoring their classroom speech. After the Policy was approved, Executive Vice President and Provost Maurie McInnis emailed University faculty that they “may not impose a ban on concealed handguns in their classrooms, and they cannot use syllabi to discourage the concealed carry of handguns.” This directive amounts to a governmental content-based prior restraint on speech in violation of the First Amendment.

Plaintiffs’ status as employees cannot justify such censorship. Public employees retain their right to address matters of “public concern” where the employee’s interest in speaking outweighs the employer’s interest in ensuring the
“efficiency” of its services. This right receives heightened protection in the university where academic freedom applies because, as a safeguard of democracy, such freedom is itself a matter of public concern. Thus while the Supreme Court has held that public employee communications made “pursuant to their official duties” lack constitutional protection, it expressly reserved the question of whether the holding applies to scholarship or teaching, recognizing that classroom speech may implicate constitutional interests “not fully accounted for by [the] Court’s customary employee-speech jurisprudence.” . . .

While no particular syllabus was before the court below, a statement discouraging guns in the classroom would pass the test laid down in Pickering and Connick for First Amendment protection. Whether a public employee’s speech
addresses a “public concern”—the test’s first element—is determined from the content, form and context of a given statement. There can be no doubt that the issue of bringing guns to class is one of intense public scrutiny and importance.The context and form of a university course syllabus—which may be distributed to hundreds of students or posted online—affords it a broad scope, while even employee speech delivered privately has been found to implicate matters of public concern.

The balance of interests also favors First Amendment protection for a syllabus statement discouraging guns. Plaintiffs possess legitimate interests in deterring students from bringing guns to class because, as discussed above, the presence of guns in the classroom academic objectives. By discouraging guns, Plaintiffs would encourage an atmosphere in which vibrant intellectual debate and contention could flourish. Plaintiffs’ interests flow not from personal concerns but from goals intrinsic to the academic mission. . . .