Texas University Professors’ Lawsuit Targets Law Allowing Concealed Guns in Classrooms

Monday, July 11, 2016
Texas Attorney General Ken Paxton (photo: Getty)

By Ryan Kocian, Courthouse News Service


AUSTIN, Texas (CN) — Three University of Texas at Austin professors sued Attorney General Ken Paxton on Wednesday, saying a state law that will force them to allow concealed guns in their classrooms endangers them and violates their constitutional rights.


In addition to Paxton, professors Jennifer Lynn Glass, Lisa Moore and Mia Carter sued UT President Gregory Fenves and members of the UT Board of Regents in Federal Court.


They say their First, Second and Fourteenth Amendment rights will be violated if they are forced to allow concealed handguns in their classrooms to comply with Senate Bill 11, which was signed into law in June 2015.


The "campus carry" law allows license holders to carry a concealed handgun on university campuses. It takes effect Aug. 1.


The 18-page lawsuit (pdf) begins: "In a cruel irony, the Texas Legislature has mandated that fifty years to the day after one of the worst gun-related massacres ever on a college campus — when Charles Whitman gunned down forty-three people on or about the campus of the University of Texas in Austin — UT-Austin must begin allowing the concealed carrying of handguns on campus and in classrooms. Worried about much more than cruel irony, the three plaintiff professors seek to at least retain the option of maintaining their academic classrooms as gun-free zones when classes start again on August 24, 2016."


The irony became crueler the day after the lawsuit was filed, when snipers killed five police officers and wounded seven in downtown Dallas, as a peaceful protest against white-on-black police killings ended.


The Texas Department of Public Safety had issued nearly 1 million concealed carry permits by the end of 2015. There are 3,500 licensed private handgun instructors in the state. But the "Texas Legislature regularly fails to provide DPS sufficient resources to regulate gun possession and training in Texas," the professors say in the complaint.


"Handgun regulation in Texas and nationwide is notoriously weak and inefficient, with gaping loopholes and outright voids. The consequence is that, in Texas, the carrying of handguns is not 'well-regulated' within the meaning of the Second Amendment because there has not been the imposition of proper discipline and training," the complaint states.


The professors cite the April 16, 2007 massacre at Virginia Tech, in which a student killed 32 people and wounded 17 others. "Most of the shooting and killing was in a college classroom," the professors say.


S.B. 11 does allow an exception: but only at private universities, not public ones.


"Most significantly, private or independent institutions of higher education are authorized to bar concealed carry on their campuses. Numerous private colleges in the state, including Baylor University and Trinity University, have invoked the private college exception and barred concealed carry on their campuses," the professors say.


Public and private universities are allowed to establish "reasonable" rules and regulations on concealed weapons, but may not "generally prohibit" the carrying of concealed guns.


State law does not directly address specific regulation of concealed handguns in individual classrooms, but Paxton has said that campus presidents may not delegate to individual professors the authority to make such decisions.


President Fenves forwarded the campus carry policies he adopted to the chancellor of the UT System on Feb. 17, to take effect on Aug. 1.


The UT policy does not directly address whether individual professors may prohibit handguns in their own classrooms, but its policies "do specifically bar concealed carry in numerous places and situations on campus," the complaint states.


Concealed handguns may be prohibited in solo faculty offices; campus residence halls; sensitive areas where materials present dangers if a gun discharges; sporting events or interscholastic events; buildings where alcohol is sold; patient-care areas; areas where minors are with university counselors, staff, or volunteers; places where formal disciplinary hearings or court proceedings are occurring; and animal research facilities.


The Board of Regents has authority to modify Fenves' policies by two-thirds vote and is scheduled to meet on July 13. It is unknown whether the board will review those policies for possible modification.


The professors say being forced to allow students to carry concealed guns in their classrooms "chills their First Amendment rights to academic freedom."


"Plaintiffs are committed to the principle of academic freedom and the free and robust expression of ideas that is part and parcel of it. As part of the learning process, they sometimes have to engage in difficult discussions of controversial, emotionally laden topics. It is inevitable that they will have to pull back, consciously or subconsciously, at important junctures in classroom exposition and discussion. ...


"But robust academic debate in the classroom inevitably will be dampened to some degree by the fear that it could expose other students or themselves to gun violence by the professor's awareness that one or more students has one or more handguns hidden but at the ready if the gun owner is moved to anger and impulsive action," the complaint states.


All the professors, all of them Ph.D.s, say they are concerned about their own safety and the safety of their students.


Glass, a liberal arts professor, teaches a class on fertility and reproduction that includes discussion of volatile topics such as abortion and unwanted pregnancies. She has seen a student who was disappointed in a grade display animosity and aggressiveness toward her teaching assistant. If campus carry laws had been in effect, Glass says, it "would have left her hesitant to confront the student in defense of her teaching assistant and urge a reasoned discussion of the matter at hand."


Moore says her upper-division class, "LGBT Literature and Culture," has been a "target of hate." A former student announced on the first day of class that she was there to monitor and report on Moore's "homosexual agenda." This repressed classroom discussion and participation, Moore says.


Carter says that "engendering a community of trust is crucial" for her courses in modern and contemporary cultures. Her classes include controversial topics such as imperialism and power structures related to sexuality and gender. She has been threatened by students with mental health issues. "All this would be made even worse were guns allowed into the classroom," she says.


The professors also say their right to self-defense is infringed by being "forced to allow handguns in their classroom even though regulation of handgun possession and use is notoriously lax and inefficient."


Calling it a "disabling imbalance in the allocation of rights under the Second Amendment," the professors say there is no way "to ensure that training in handgun use and safety is adequate or inadequate for constitutional purposes." They say this violates their right to protection under the "well-regulated" component of the Second Amendment.


They also say their right to equal protection is being violated because Texas selectively allows private universities and other sites to be off limits to concealed handguns. "Yet, for no apparent reason, plaintiffs' classrooms are treated in exactly the opposite way: They may not exclude concealed carrying of handguns."


Finally, they say the state's campus carry policies are unconstitutionally vague under the Due Process Clause, threatening to impose sanctions without identifying or specifying the rule that prohibits such action.


Matt Valentine, a lecturer at UT and a friend and colleague of two plaintiff professors, told Courthouse News in an email: "The Second Amendment is badly misunderstood. There's clear evidence that the Framers intended for guns to be regulated. Loose gun laws are, if anything, a threat to security ...


"My concern, shared by many of my colleagues, is not so much about a premeditated attack, but rather with arguments that might escalate to violence if a gun is immediately accessible. According to the FBI's expanded homicide data in the Uniform Crime Report, the single most common circumstance leading to gun homicide is an argument that escalated to a shooting."


Valentine said the quality of education will suffer with concealed guns permitted in class.


"I know that some of my colleagues who teach controversial subjects are planning to reduce in-class discussions of those topics," he said. "In the past, we have invited an open dialog where students freely exchange their perspectives on a given topic in the classroom, but we might now ask them to instead submit their thoughts in writing, and only to the instructor or teaching assistant, to avoid confrontations that might become unsafe.


"Some faculty have also said they intend to grade more leniently because they don't want to have a confrontation with a potentially armed student about a bad grade."


Valentine added that "some prospective administrators have declined opportunities at UT because they do not want to work in an environment where guns are casually carried by people with very little training."


Economics Professor Daniel Hamermesh resigned from UT in October 2015 because of the conceal carry law. In a letter to Fenves, he said the "risk that a disgruntled student might bring a gun into the classroom and start shooting at me has been substantially enhanced" by the law.

Hamermesh will teach instead at the University of Sydney in Australia this fall.


Paxton on Thursday called the lawsuit "an insult to the millions of law abiding gun owners in Texas and across this country. The Texas Legislature passed a constitutionally sound law, and I will vigorously defend it."


The University of Texas does not comment on active litigation.


The professors seek declaratory judgment that the campus carry law violates the First, Second and Fourteenth amendment, and an injunction against its enforcement.


They are represented by R. James George Jr., Malcolm Greenstein and Max Renea Hicks, all of Austin.


To Learn More:

Dr. Jennifer Lynn Glass, et al v. Ken Paxton, et al (U.S. District Court for Western District of Texas) (pdf)

Texas Professors Warn that Gun-Carrying Students May Curtail Academic Discussions (Associated Press)

New Texas Law to Allow Guns in University Classrooms (by Jon Herskovitz, Reuters)

Real Guns Welcome in Texas College Dorms, But Candles, Toasters and Squirt Guns are Banned (by Noel Brinkerhoff and Steve Straehley, AllGov)

20 Teachers and Staff Will Carry Guns When Doors Open to Kids at Arkansas School This Fall (by Danny Biederman and Noel Brinkerhoff, AllGov)


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