UT Professors Lawsuit Against Second Amendment on Campus Heard in Court, UT fumbles

In the lawsuit filed by two University of Texas professors and Teaching Assistant Professor was heard in court on 4 August, 2016, in Austin Texas. The lawsuit is full of irrational rants.  I expected it to be thrown out. Here are a couple of excerpts:

33. Compelling professors at a public university to allow, without any limitation or restriction, students to carry concealed guns in their classrooms chills their First Amendment rights to academic freedom.

How free speech is chilled, when the Texas law requires the pistols to be concealed, is not explained.  Illegally concealed pistols are likely in the classrooms already.

48. The Texas statutes and university policies that prohibit Plaintiffs from exercising their individual option to forbid handguns in their classrooms violate the Second Amendment to the United States Constitution, as applied in Texas through the Due Process Clause of the Fourteenth Amendment. These policies and procedures deprive Plaintiffs of their Second Amendment right to defend themselves and others in their classrooms from handgun violence by compelling them as public employees to passively acquiesce in the presence of loaded weaponry in their place of public employment without the individual possession and use of such weaponry in public being well-regulated. This infringement lacks any important justification and is imposed without any substantial link between the objectives of the policies and the means chosen to achieve them.

A right to violate others Second Amendment rights in public places.  That is a novel interpretation of the Second Amendment.  Positively Orwellian.

The initial arguments were heard by Judge Yeakel.  He could decide whether to grant a temporary injunction to the professors by next week. The professors asked that the law be suspended for a semester to allow a public trial.  From dallasnews.com:

AUSTIN — Three professors duking it out in court for the right to ban guns in their classrooms were told Monday they will be punished if they do, according to the latest legal back-and-forth prompted by Texas’ new campus carry law.

“Faculty members are aware that state law provides that guns can be carried on campus, and that the president has not made a rule excluding them from classrooms,” attorneys representing the University of Texas at Austin and Attorney General Ken Paxton wrote in a legal brief filed Monday. “As a result, any individual professor who attempts to establish such prohibition is subject to discipline.” 

Filing a frivolous lawsuit against one’s employer, when you are a public servant, does not seem like a good career move. 

But this is the University of Texas, Austin.  The UT lawyers claimed that there would not be any disciplinary action against the professors. If UT will not impose any discipline, the professors do not face any problems and can do as they will.  While the UT lawyer stumbled around trying to explain this to the judge, the professor’s lawyers said the policy should be struck down as vague, because even the UT lawyer could not articulate them.

If the professors put up “No Guns” signs at their classroom doors, the signs will not have any force of law.  Because they would be violating University of Texas policy, they could be disciplined, it seems. The plaintiffs claim that the possibility of discipline violates the due process clause. From the suit:

52. The Texas statutes and university policies that prohibit Plaintiffs from exercising their individual option to forbid handguns in their classrooms violates their rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Plaintiffs are threatened with possible adverse employment sanctions for violating state and university policies that draw impermissibly vague and uncertain lines about an individual professor’s exercise of control over the classroom by exercising the option of banning guns in that professor’s own classroom. 

 UT has been hostile to the law from the beginning.

If the UT administration does not follow their own policy, as allowed for and set in accordance with the legislative statute, UT might be liable for violating students Second Amendment rights under Texas law.  That could take considerable time to resolve, with much potential for shenanigans on the part of the UT administration.

As with many lawsuits brought in the last 50 years, this one seems to be made for media consumption rather than as a serious question of law. But if the UT administration fumbles around on discipline, the implementation of the law could be confused for years.  The legislature might not be happy with such a result.

It is as if the U.S legislature forbid car manufacturers to put “No Women Drivers” signs on their vehicles. Then three Toyota employees claimed that they should be allowed to place “No Women Drivers” signs on Toyota windshields, and sued Toyota and the US Government, complaining that to forbid the signage would be violating the employees First Amendment rights.  Then Toyota says in court that company management has no plan to discipline the employees who put the signs on the windshields.

Texas AG Ken Paxton filed a well written and argued brief as to why there should be no preliminary injunction, and why the UT professors are likely to fail in court. From the brief:

Plaintiffs are seeking to enjoin enforcement of any statute or policy that requires them to allow adults who are licensed by the state to carry handguns to conceal carry in classrooms where Plaintiffs are teaching. But Plaintiffs have failed to satisfy any of the requirements for a preliminary in- junction. They are not likely to succeed on the merits of their claims, there is no substantial threat that they will suffer irreparable harm if an injunction does not issue, the balance of harms favors Defendants, and the public interest supports denying the requested injunction.

The judge is allowing all sides to submit further briefs on the  disciplinary policies before he rules on the preliminary injunction.  Judge Yaekel is said to have a reputation as a careful jurist.  He was appointed to the position in 2003 by President G. W. Bush.

 ©2016 by Dean Weingarten: Permission to share is granted when this notice and link are included.
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