Contributor, The Volokh Conspiracy

In yesterday’s Glass v. Paxton (W.D. Tex.), a federal judge refused to block the new Texas law that lets people with concealed-carry licenses carry on university campuses. This is just a decision denying a preliminary injunction, so it’s possible that the final result will be different — but, given the judge’s explanation of his reasoning, I think that’s unlikely. A quick summary:

1. Texas lets pretty much all law-abiding adults age 21 and above get a license to carry concealed handguns in public places. This is pretty much the rule in about 40 states, though some of those states set the age at 18, and a few don’t even require a license. Many such states don’t let license-holders carry at public universities, or allow public universities to set up such prohibitions; but Texas, like some other states, does allow “campus carry.” The relevant statute, enacted last year, provides that

A license holder may carry a concealed handgun on or about the license holder’s person while the license holder is on the campus of an institution of higher education … in this state…. After consulting with students, staff, and faculty of the institution regarding the nature of the student population, specific safety considerations, and the uniqueness of the campus environment, the president or other chief executive officer of an institution of higher education in this state shall establish reasonable rules, regulations, or other provisions regarding the carrying of concealed handguns by license holders on the campus of the institution or on premises located on the campus of the institution. The president or officer may not establish provisions that generally prohibit or have the effect of generally prohibiting license holders from carrying concealed handguns on the campus of the institution.

Because of this, the president of the University of Texas at Austin set up a policy that let students who have concealed-carry licenses carry their guns in classrooms.

2. Some faculty members challenged this, claiming that allowing students the right to carry violates those faculty members’ own rights. One such right was the First Amendment right to academic freedom; the court responded (some paragraph breaks added):

In University of Pennsylvania v. EEOC (1990), the university argued that EEOC subpoenas of the university’s peer-review materials pertinent to charges of discrimination in tenure decisions placed a burden on the peer-review process that violated its First Amendment right of academic freedom. The university asserted that allowing the subpoenas would have a “chilling effect” on candid evaluations and discussions of candidates, “impair[] the free interchange of ideas that is a hallmark of academic freedom" and that the “quality of instruction and scholarship [would] decline” as a result.

The Court noted that the university did not allege that the EEOC subpoenas were “intended to or will in fact direct the content of university discourse toward or away from particular subjects or points of view” and that the “burden of which the University complains is neither content-based nor direct.” The Court therefore concluded that the “burden of which the University complains does not fit within any recognized right of academic freedom” and declined to extend the First Amendment to encompass the university’s claim.

Similarly in this case, neither the Campus Carry Law nor the Campus Carry Policy is a content-based regulation of speech, nor can either reasonably be construed as a direct regulation of speech. Plaintiffs assert that classroom discussion will be “circumscribed by the near-certain presence of loaded guns” and that their ability to “make [their classrooms] truly a marketplace for the robust exchange of ideas will be impaired.” They argue that they are now “incentivized to err on the side of ‘trimming their sails,’ academically speaking, when they push for classroom debate.”

Perhaps they are correct. But the Campus Carry Law and Policy do not direct Plaintiffs either toward or away from any particular subject or point of view. The provisions do not prohibit, require, or even mention any form of speech by professors of the University. The burden of which Plaintiffs complain therefore does not fit within any recognized right of academic freedom.

The court has searched the jurisprudence of this country from the ratification of the Constitution forward and has found no precedent for Plaintiffs’ proposition that there is a right of academic freedom so broad that it allows them such autonomous control of their classrooms — both physically and academically — that their concerns override decisions of the legislature and the governing body of the institution that employs them. Their First Amendment claim is and must be bottomed on their right to speak and teach freely. Neither the Campus Carry Law nor the Campus Carry Policy forbids them from doing so. This is fatal to their attempt at this stage in the proceedings to establish a substantial likelihood that their case will succeed on the merits.

3. The court also rejected the professors’ argument that the policy was unconstitutionally vague, in violation of the Due Process Clause:

The Campus Carry Policy states that “[i]ndividuals licensed to carry [a handgun] may do so on campus except in locations and at activities prohibited by law or by this policy.” The court finds that a person of ordinary intelligence would understand if a professor were to communicate to her class that individuals licensed to carry handguns may not carry a handgun in her classroom, such communication would be a misrepresentation of and in contravention to the Campus Carry Policy.

4. And the court rejected the professors’ argument that the policy violated the Equal Protection Clause:

The Campus Carry Law allows private and independent institutions of higher education in Texas to “establish rules, regulations, or other provisions prohibiting license holders from carrying handguns on the campus of the institution ….” Plaintiffs assert that there is no rational basis for requiring professors at public universities to allow licensees to carry handguns in classrooms, when professors at private universities are not subject to the same requirement. Further, Plaintiffs argue that there is no rational basis for the Campus Carry Policy to exclude handguns from some areas on campus but not others….

Under the rational-basis test, a law that “neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” … “The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and … judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” …

The court concludes at this stage in the proceedings that requiring public universities to allow licensed individuals to carry concealed handguns is a basis for the Campus Carry Law that bears a debatably rational relationship to the conceivable legitimate governmental end of enabling individuals to defend themselves. Further, the court concludes that allowing private universities to prohibit concealed carry by licensed individuals bears a rational relationship to the legitimate governmental interest of respecting the private-­property rights of private universities.

Finally, the University Defendants assert that the University’s exclusion of handguns from some areas although the University allows them in classrooms and other areas furthers the University’s interest in promoting safety on campus and following the requirements of state law. The University Defendants point to the Campus Carry Policy Working Group Report, which explains that “[t]he primary on-campus activity for most of our more than 50,000 students is going to class. Excluding handguns from classrooms would have the effect of generally prohibiting license holders from carrying their handguns and so would violate [the Campus Carry Law].”

The Report also provides comments explaining the rationale behind the exclusion zones adopted by the University. For example, the occupant of an office to which the occupant has been solely assigned may prohibit the concealed carry of handguns in that office because the occupant of an office to which the occupant has been solely assigned has traditionally been vested with substantial control over his or her office space. And concealed carry of handguns is prohibited in areas where the discharge of a firearm might cause great harm, such as laboratories with extremely dangerous chemicals, biologic agents, or explosive agents because, as the Report explains, the training required for handgun license holders does not include special training regarding the safe use of weapons in such facilities, and the accidental or purposeful discharge of a weapon in such a facility could cause grave and catastrophic harm.

The Campus Carry Policy’s allowance of the licensed concealed carrying of handguns in some areas on campus but not others does not violate the Equal Protection Clause because they are rationally related to the University’s legitimate interests of complying with the Campus Carry Law and promoting safety on campus as explained in the Report.

Sounds quite right to me, and I expect the decision to be upheld on appeal.