By Louis K. Bonham
As TTAG readers are no doubt aware, Texas passed a law last year authorizing LTC (license to carry) holders to carry concealed handguns on college campuses. While the law allowed private universities to opt out, state institutions are generally required to allow concealed carry on campus by license holders.
This produced no small amount of wailing and gnashing of teeth at the University of Texas. UT professors have issued calls for “action” to defy the law, which in turn produced not-so-veiled threats from state officials who control UT’s funding.
Ultimately, after months of navel-gazing, the UT administration grudgingly implemented procedures that appear to follow the law. Concealed carry is allowed in classrooms, with professors prohibited from forbidding concealed carry in “their” classes. Under certain conditions, professors can prohibit concealed carry in their offices (certain other areas of campus are also off limits). But by and large licensed concealed carry is authorized on campus.
Outraged by this development, three UT professors recently filed suit in federal court, seeking to block campus carry implementation. A hearing on their request for a preliminary injunction was held yesterday.
In advance of the hearing, I reviewed the papers filed by the parties. It looked like it would be a cakewalk for the defendants.
The plaintiffs’ legal theories in the lawsuit are a real stretch, to put it mildly. For purposes of the preliminary injunction hearing they were only arguing that (1) campus carry violates their purported rights to “academic freedom” because their fear of a student going postal will cause them to curtail their teaching, and (2) because campus carry is prohibited in some areas (hazardous labs, sporting events) but not others, not allowing professors to “opt out” is a violation of their equal protection rights.
The office of the Texas Attorney General, a named defendant, filed a tour de force response adroitly pointing out the crucial factual and legal flaws in the plaintiffs’ position. The other defendants — UT and its administration — were represented by different attorneys who filed a much weaker response. Indeed they appeared to commit a serious “own goal” that came back to bite them at the hearing.
In support of their “academic freedom” arguments, the plaintiffs cited two Supreme Court cases that struck down laws prohibiting the teaching of “subversive” topics. Counsel for UT asserted that those cases were distinguishable because they involved threats to fire the professors for certain speech, whereas in the present case, UT asserted that its professors purportedly faced no threat of firing or other disciplinary action if they prohibited concealed carry from their classes.
In other words, there would be no consequences for faculty who refused to comply with and accommodate the new campus carry law. Big mistake.
Federal courts strictly require there’s an actual “case or controversy” before them. If UT professors can violate the UT policy with impunity, then there’s no actual controversy, as they face no real threat of harm. In such a case, the court would likely not have jurisdiction to do anything. UT would be stuck, at least temporarily, with its admission that professors could get away with thumbing their noses at official UT policy, which would unravel the campus carry policy.
At the hearing, counsel for the professors immediately pounced on that shocking admission, causing the court to interrupt its plan for the hearing in order to deal with it. In a truly painful performance, the young attorney for UT appeared completely flummoxed and unable to answer direct questions from the court on this subject, ultimately trying to walk back her admission that there would be no adverse consequences for professors violating the UT campus carry policies.
In my opinion, it looked like UT sent in the JV team on this one. Draw your own conclusions as to why UT, which is on record as opposing campus carry anyway, might have done so.
In any case, the poor performance clearly frustrated the court, which called a recess after an hour of largely pointless meandering and asked the parties to try and agree whether or not there was, in fact, a UT policy in place that would put the professors at actual risk if they violated it.
After the break, Prerak Shah, senior counsel for the Texas Attorney General, stepped up to the plate and quickly got things back on track. Nevertheless, the “own goal” by UT’s counsel created a new issue in the case: whether UT’s policies were in fact so vague as to be unconstitutional. The fact that UT’s own counsel had difficulty identifying and articulating its policy didn’t exactly help matters.
The balance of the hearing went as expected: plaintiffs’ counsel candidly admitting that there wasn’t any real case law supporting his positions (but he went long on emotion, delighting “Gun Free UT” supporters in the gallery). The counsel for the Texas Attorney General made brief but very effective arguments against them. The attorney for UT recovered somewhat from her rocky start, but never seemed to be hitting her marks even though the law was very clearly on her side.
Again, why UT chose to send a five-year attorney to argue a high-profile case in federal court seems fishy to this old litigator, especially given the university’s stated opposition to the campus carry law. Compare and contrast with the caliber of attorneys UT enlisted when it had to defend another of its policies (affirmative action), challenged in federal court as unconstitutional.
U.S. District Judge Lee Yeakel didn’t rule from the bench (not unexpected, as he has a reputation of being very careful and thorough). But Judge Yeakel indicated that he would issue a ruling as soon as possible, after the parties submitted additional briefing on the issue created by UT’s “own goal.”
From what I’ve seen and read to date, my prediction: the court will likely rule that the plaintiffs failed to satisfy the very high burden that’s required for preliminary injunctive relief, especially proof that they demonstrated a “likelihood of success on the merits.” Thus the law will continue in force.
Nevertheless, what should have been a chip shot for the defendants was made considerably more difficult by what appear to me to have been unforced errors by UT’s counsel.
We’ll see whether that affects the case — and the rights of UT students — as well as whether UT’s counsel’s position was just a mistake or evidence of the UT administration’s mask slipping.