Free Speech at UT: An Open Letter to President Jay Hartzell

Louis K. Bonham

Editor's Note: The following is an open letter from Louis K. Bonham, intellectual property litigator and graduate of the University of Texas at Austin, to the president of the University of Texas, Jay Hartzell. This follows Bonham's previous investigation into UT Law School's First Amendment Center, the findings of which you may read here and hereBonham also spoke to various UT personnel who alerted him to other recent incidents indicating that the problems at UT Law are but the tip of the iceberg at UT. All of this prompted the following open letter from Mr. Bonham to President Hartzell.

Despite followup requests for comment, neither President Hartzell nor UT have responded. NAS therefore publishes it here, as we have customarily done for other open letters that have gone without response.

March 30, 2021

Dear President Hartzell:

Last fall, you published an op-ed “There is No Higher Education Without Free Speech”—facially, a full-throated defense of free speech and its necessity in higher education and scholarship. That the President of UT had to go on record to state what most rational people would consider obvious—that the airing and tolerance of opposing viewpoints is fundamental to academic inquiry and education—was a sad commentary of the state of free speech at UT. Despite years of warnings from organizations such as the Foundation for Individual Rights in Education, UT developed an engrained culture of political correctness über alles, active suppression of the “wrong” opinions and speech (including by official UT speech codes), and embraced “cancel culture.” As a result, UT now enjoys the ignominy of being ranked as the worst public university in the country (second worst overall) on free speech. Indeed, your editorial came only after the United States Court of Appeals for the Fifth Circuit had issued a blistering denunciation of UT’s unconstitutional speech codes.

While your statement was certainly welcome, words alone will not fix the broken culture at UT. If anything, this situation continues unabated on your watch. Examples abound:

1. Last year, a copy of UT’s Orwellian Faculty Diversity, Equity, and Inclusion, Strategic Plan was leaked to the press, revealing that your administration was planning to impose ideological litmus tests in hiring, promotion, and even scholarship. After this plan was widely condemned, UT’s response did not deny the accuracy of the report, but instead vaguely claimed that the document was merely a draft that was under consideration. Since then, it appears that your administration still plans to go through with this abomination, albeit probably not until after the Texas Legislature has safely adjourned from its biennial session.

How do you square your statements positing the necessity of free speech and expression with political litmus tests as official UT policy? How do you expect to see diversity of thought on campus when official UT policy apparently will be to affirmatively filter out those with viewpoints not aligning with the requisite “correct” opinions?

2. When the cancel culture mob descends on a UT faculty member, your administration not only fails to stand up for free expression, it joins the mob. For example, last year an instructor in the graduate school of business gave an assignment based on a famous clip from the film “A Beautiful Mind” to teach the principle of Nash equilibrium (a clip praised as a pedagogical tool by no less than the New York Times, and used by other educators for this same purpose). A student in the class complained that she found the clip to be misogynistic, and unleased a social media mob. Despite the instructor’s apology, rather than defend the rights of the faculty, a dean of the business school instead successfully sought to have him removed from teaching MBA students, and explored whether his actions could be punished as sexual harassment.

How do you expect there to be a free flow of information and ideas—again, which you posit as essential to higher education—when your administration not only fails to condemn “cancel culture,” but encourages and abets it, and indeed is an active participant?

3. Even when alumni have given UT millions to try and help solve this problem, UT’s PC climate swiftly descends to frustrate those efforts. For example, a First Amendment Center was recently endowed at the UT Law School, and part of its activities was to sponsor a Law and Religion Clinic focusing on free exercise cases. Before this clinic was even announced, fear of backlash from UT’s PC community caused the Law School to preemptively impose limitations on the clinic’s potential activities—substantive limitations that have not been imposed on any other UT Law clinic (especially not on any of the many clinics promoting “progressive” causes). Even after the Law School had decided to impose these unique limitations, that was not enough for certain activist faculty (including a former dean of the Law School), who pushed for the imposition of an oh-so-PC “mission statement” on the Law and Religion Clinic—again, something no other UT Law clinic had ever been required to have.

That certain faculty feel that it is appropriate to try and restrict teaching and scholarship that they disagree with politically is bad enough. That such is being tolerated, accommodated, and indeed encouraged by your administration is far worse. How do you square your stated belief that free expression and academic inquiry is essential with your administration’s acceptance and embrace of such PC restrictions on teaching and scholarship?

These are just three of the numerous examples that students and faculty at UT have brought to my attention. Suffice it to say it does not look to me (and many others) like things are changing.

What could be done? For a start, UT could adopt as official policy the Chicago Statement, which includes:

Because the University is committed to free and open inquiry in all matters, it guarantees all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn . . . . [I]t is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.

Another excellent suggestion is to establish an Office of Free Speech, with a mandate to receive and investigate complaints of students or faculty that their academic freedom or free speech rights are being violated by others at UT, or about policies by UT departments or personnel that seek to limit free speech or intellectual diversity. Given the millions of dollars and hundreds of employees UT is employing to address issues of “diversity,” surely some of those resources could be repositioned to ensure actual diversity of thought, by putting some teeth into support for free speech.

On the other hand, if UT is unable or unwilling to do anything but posture on this matter, then there are external vehicles available to compel reform, albeit perhaps not in a fashion UT would prefer. The Texas Governor and Legislature have various many remedies available to them, such as those that have been explored or implemented recently in Idaho, South Dakota, Iowa, and Florida. Alumni such as myself and many others are ceasing their support of UT (financial and otherwise). Prudent prospective employers will be looking harder at the resumes of UT grads to see if they actually received an education or merely “woke” indoctrination.

Federal courts are also increasingly recognizing how broken public higher education culture now is, and are willing to hold universities, administrators, and those who enable them accountable for violations of First Amendment rights. As the United States Court of Appeals for the Sixth Circuit held last week:

Traditionally, American universities have been beacons of intellectual diversity and academic freedom. They have prided themselves on being forums where controversial ideas are discussed and debated. And they have tried not to stifle debate by picking sides. But Shawnee State chose a different route: It punished a professor for his speech on a hotly contested issue. And it did so despite the constitutional protections afforded by the First Amendment. The district court dismissed the professor’s free-speech and free-exercise claims. We see things differently and reverse.

Particularly given the Fifth Circuit’s warning to UT last year, UT personnel who persist in their “woke” views of the scope of free speech rights now have a serious risk of not enjoying qualified immunity when sued for First Amendment violations. And it is a certainty that if UT’s “woke” policies and culture concerning free speech continue, so will the lawsuits.

In closing, I note that in your editorial, you said:

I believe the goal of a public research university, as an educational institution, is to open the minds of our students, expose them to different perspectives and beliefs, and prepare them to lead extraordinary lives after graduation. That doesn’t happen in an echo chamber. That doesn’t happen when everyone agrees. It happens when beliefs and preconceptions are tested. That’s how we teach and that’s how we learn.

A noble and correct statement, to be sure. But are you taking any real action to make it a reality, particularly in regard to UT faculty, students, and administrators who continue to seek to stifle, deplatform, and otherwise silence speech and opinions that they disagree with or otherwise consider insufficiently “woke”? Or are your words merely platitudes to mollify critics and the state legislature, while behind closed doors things go on at UT just as before?

Very truly yours;

Louis K. Bonham (BA [Plan II] ’83, JD ’86)

Louis K. Bonham is an intellectual property litigator. He is a graduate of the University of Texas (BA ’83, JD ’86), was an Articles Editor on the Texas Law Review, and served as a law clerk to the Hon. Edith H. Jones of the US Court of Appeals for the Fifth Circuit.

Image: Larry D. Moore, Wikimedia CommonsCreative Commons Attribution-Share Alike 3.0 Unported license, cropped.

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