Glass v. Paxton, 900 F. 3d 233 (5th Cir. 2018)

The Court of Appeals for the Fifth Circuit upheld a Texas law permitting the concealed carry of handguns on campus (the “campus carry law”) and a corresponding University of Texas at Austin (UT) policy prohibiting professors from banning such weapons in their classrooms. Faculty from UT filed suit and argued that the law and policy violated the First Amendment, Second Amendment, and Equal Protection Clause of the Fourteenth Amendment. The lower court dismissed the faculty’s claims and the faculty appealed. In its amicus brief, the AAUP argued that the law and policy requiring that handguns be permitted in classrooms harms faculty as it deprives them of a core academic decision and chills their First Amendment right to academic freedom. The appeals court rejected the faculty’s claims finding that they lacked standing under the First Amendment as it deemed that the harm was not certainly impending. The court also affirmed the dismissal of the Second Amendment and Equal Protection claims.

This case arose from an appeal of a lawsuit filed by several UT faculty contesting a policy that had been promulgated as a result of the campus carry law that expressly permits concealed handguns on university campuses. In 2016, UT issued a Campus Carry Policy mandating that faculty permit concealed handguns in their classrooms. In their lawsuit before the United States District Court for the Western District of Texas, the faculty alleged that enforcement of the Campus Carry Policy profoundly changes the educational environment in which plaintiffs teach in violation of the First Amendment. The district court dismissed the case, concluding that the faculty failed to establish an injury-in-fact or that the alleged injury was traceable to any conduct of defendants. The court stated that the faculty cannot “establish standing by ‘simply claiming that they experienced a “chilling effect” that resulted from a governmental policy that does not regulate, constrain, or compel any action on their part.’”  (Order at 4 (citing Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1153 (2013).)  It concluded that the faculty asked the court to find standing based only on “their self-imposed censoring of classroom discussions caused by their fear of the possibility of illegal activity by persons not joined in this lawsuit.”  (Order at 6). The faculty challenged the district court’s holding and also argued that because the district court failed to provide any reasoning for the dismissal of their Second and Fourteenth Amendment claims, the federal appeals court should consider the merits of these claims.

In its amicus brief in support of the faculty the AAUP joined with the Giffords Law Center to Prevent Gun Violence and the Brady Center to Prevent Gun Violence and focused on the faculty’s First Amendment claim and argued that the law and policy infringed on the faculty’s academic freedom by creating an imminent cognizable injury that is neither hypothetic not speculative. The brief explained that the deleterious impact of guns on education is widely recognized by university administrators and faculty, whose conclusions are confirmed by a significant body of social science research. The brief also argued that 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 particular 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.” 

In August 2018, the federal appeals court upheld the district court’s ruling. On the First Amendment “standing” issue, the court determined that the faculty lacked standing because they could not show whether the harm threatened by the concealed-carrying students was “certainly impending.” “Because she [Plaintiffs] fails to allege certainty as to how these students will exercise their future judgment, the alleged harm is certainly not impending.” The court also rejected the faculty’s Second and Fourteenth Amendment claims. The court rejected the faculty’s interpretation of the Second Amendment’s prefatory clause and found that it cannot “limit or expand the scope” of an individual right. Finally, the court rejected the faculty’s claim that the law and policy violated their rights under the Equal Protection Clause under the Fourteenth Amendment because the faculty failed to meet its burden to establish that the law and policy lacked a rational basis.