- The Washington Times - Thursday, February 24, 2022

Three conservative students at the University of Houston have filed a federal lawsuit claiming that the school’s new anti-harassment policy infringes on their freedom of expression on topics ranging from transgender athletes to immigration.

The lawsuit, filed last Wednesday in the Houston Division of the U.S. District Court for the Southern District of Texas, says the university’s new definition of harassment, issued Dec. 27, is so broad that it unconstitutionally limits protected speech.

The lawsuit quotes the anti-harassment policy as saying that even “[m]inor verbal and nonverbal slights, snubs, annoyances, insults, or isolated incidents including, but not limited to microaggressions,” can constitute harassment if “such incidents keep happening over time and are targeting a protected class.”

According to the policy, examples of harassment “include but are not limited to: epithets or slurs, negative stereotyping, threatening, intimidating, or hostile acts, denigrating jokes and display or circulation (including through email or virtual platforms) of written or graphic material in the learning, living, or working environment.”

It adds that “academic freedom and freedom of expression will not excuse behavior that constitutes a violation of the law or this policy.”

Speech First, a nonprofit association of college students and alumni, filed the lawsuit, which seeks a judgment that the anti-harassment policy violates the First and 14th amendments and an injunction to prevent the university from enforcing it.

“Speech First’s members who attend the university are suffering concrete injuries as a direct result of the university’s unconstitutional harassment policy,” the complaint states. “These students want to engage in speech that is arguably covered by the university’s policy, but they credibly fear that the expression of their deeply held views will be considered ‘intimidating,’ ‘denigrating,’ ‘negative stereotyp[es],’ and the like.”

In a statement emailed to The Washington Times last Thursday, the University of Houston said it was “aware of the new lawsuit” and that the school valued all “fundamental rights guaranteed by the U.S. Constitution, including the First Amendment.”

“We believe Speech First has misconstrued or misread this policy as our policy clearly indicates that actionable harassment must be ‘unlawful severe, pervasive or persistent treatment,’ the standard cited by plaintiffs and adopted by the U.S. Supreme Court,” the university said in the statement. “We look forward to a prompt resolution of this matter.”

Some academic freedom advocates expressed concerns that the university’s policy had created a hostile environment for students with traditional moral beliefs.

“I can’t speak to whether the students in this case are ‘suffering concrete injuries,’ as their lawsuit states,” said Jonathan Zimmerman, a professor in the history of education at the University of Pennsylvania. “But here’s what I can say: Speech codes contribute to self-censorship, which is the enemy of real education everywhere.

“To learn from each other, we need to speak our minds without fear. And broad restrictions on campus expression discourage us from doing that.”

Laura Beltz, director of policy reform for the nonpartisan Foundation for Individual Rights in Education (FIRE), said the academic civil liberties group plans to track the University of Houston litigation.

“FIRE has long had concerns about the serious threat to student speech rights posed by the University of Houston policy challenged in this lawsuit,” Ms. Beltz said. “Courts have made clear in rulings dating back more than three decades that public university harassment policies cannot infringe upon student First Amendment rights.”

• Sean Salai can be reached at ssalai@washingtontimes.com.

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