The Texas State Legislature is considering several bills designed to protect freedom of speech on the state’s public-university campuses. The Texas State Senate has already passed a bill with many positive features, from the creation of a disciplinary code for shout-downs, to protection against the use of security fees as a tool of censorship, to protection for student groups facing discrimination for their beliefs. Although the Texas Senate bill is clearly a step forward, it is also weak in areas where bills being considered by the Texas State House are strong.
Two campus free-speech bills have been introduced in the Texas State House, one by Representative Bill Zedler and one by Representative Briscoe Cain. Readers may remember that Cain was himself subjected to an outrageous shout-down at Texas Southern University in 2017.
The Zedler bill includes two features in particular that would strengthen the senate bill. First, the Zedler bill would create an oversight system controlled by the university’s regents. This is critical, because the refusal of campus administrators to protect basic rights is at the center of the campus free-speech crisis. Administrators at the University of Texas, Austin, for example, have established a bias-reporting system that severely inhibits free speech. And Briscoe Cain himself was prevented from proceeding with his talk not only by student disruptors, but by the president of Texas Southern University. So we can’t rely on university administrators to report on their own performance, which is what the Senate bill does. Once administrators know that their bosses, the regents, are going to submit an annual oversight report to the legislature, which holds the university’s purse-strings, they will be far more likely to protect free speech on campus. So creating an oversight system is the single most powerful step the legislature can take to ensure that the new law will actually be enforced.
Second, both the Zedler and the Cain bills in the Texas State House contain a “cause of action” provision that provides reasonable court costs and attorney’s fees to individuals who successfully sue public universities for abridgement of their freedom of speech. Like the annual oversight report, the cause of action gives real teeth to a bill that might otherwise be ignored.
Finally, the Cain bill includes somewhat stronger language ensuring that the university does not abuse its legitimate regulatory authority to unduly restrict freedom of speech. Cain provides that the regulation of speech must serve a “compelling” state interest, whereas the Senate bill allows regulation to clear the lower bar of a “significant” state interest. Cain’s language would be an improvement, as would his excellent language on institutional neutrality.
Of these various provisions, however, the oversight system and the cause of action are critically important. The Texas State House should insist that one or both of those provisions be added to the senate bill. Given the problematic track record of university administrators in Texas and beyond, I’d say that the oversight system is the most needed improvement to the senate bill. After all, public-university administrators are already obligated to uphold the First Amendment, yet they persistently fail to do so. If we’re not to have yet another symbolic bill that sounds good but is quickly disregarded in practice, an oversight system is a must.